CEPU v Comcare [2010] FWA 2685 (Appeal against Improvement Notice)
Australia Post Disputed Provisional Improvement Notice— appeal by Australia Post and CEPU pursuant to s48 of the OHS Act against decision of Comcare investigator to issue an Improvement Notice by virtue of having varied a Provisional Improvement Notice issued by an Australia Post Health and Safety Representative; introduction of new postal delivery vans.
Background
In 2006 Australia Post embarked on a program to select a new postal delivery van to replace its ageing fleet of Ford Transit vans. Those Ford Transit vans have a window in the sliding door to the cargo compartment on the passenger side of the vehicle. Australia Post ultimately selected Mercedes Sprinter vans as the replacement but ordered those vans without a window in the sliding door to the cargo compartment on the passenger side of the vehicle.
An Australia Post Health and Safety Representative (HSR) issued a Provisional Improvement Notice (PIN) pursuant to s29 of the OHS Act. That PIN required Australia Post to retrofit windows into the Mercedes vans.
Investigation
Australia Post requested that Comcare investigate the matter, which triggered a mandatory Comcare investigation and suspended the PIN.
As a result of his investigation Comcare investigator Davson varied the PIN and issued an Improvement Notice pursuant to s29(10) of the OHS Act. In essence, the Improvement Notice issued by Investigator Davson required Australia Post to implement a further process of hazard identification, risk assessment and risk control measures (with the installation of rear windows being expressly identified as a possible risk control measure that may need to be implemented) rather than simply requiring Australia Post to retrofit windows to their fleet of Mercedes vans.
Australia Post and CEPU appealed the decision to issue the Improvement Notice. Australia Post withdrew its appeal and the matter was decided on the CEPU's request that orders be made that Australia Post cease using the new vans until such time as they were fitted with rear side windows.
Outcome
Vice President Lawler affirmed the Improvement Notice issued by Comcare Investigator Davson. VP Lawler found that the Improvement Notice accorded with the expert evidence before Fair Work Australia, and also found that Investigator Davson approached the task of reviewing the PIN with care and thoroughness.
Some thought for discussion ...
David Jones, Editor-in-Chief of CDM2007.org suggests that properly trained persons could become accredited to issue PINs [Provisional Improvement Notices] on construction works in the UK and assist the HSE in the task of reducing the risk level of accident and death on all construction sites large and small.
PINs have no legal authority, they would simply record a point of issue that has been spotted and is being brought to the notice of the employer by a competent H&S rep ... as with this case, the PIN does allow for the thought processes to be cleared so that the real issue is then dealt with ...
Please let me have your thoughts and comments on your views on PINs for the UK Construction Industry and, perhaps, wider too ...
Log in and let me know ~ thanks ...
ED.
