C2002/429, Transcript of Proceedings [2002] AIRCTrans 1072 (2 April 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03007

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/429
C2002/430
C2002/431
C2002/432

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION and ANOTHER

and

JAMES CHASSER

Occupational Health and Safety Review
Authority - Appeal Against Improvement
Notice Nos AAHL.COM/001 and AAHL.COM/002
issued on 21 December 2001

MELBOURNE

10.15 AM, FRIDAY, 15 MARCH 2002

PN1

MR G. DENT: I appear on behalf of the applicants.

PN2

MR M. SNELL: I appear on behalf of the respondents.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, I believe there has been some discussions between the parties.

PN4

MR DENT: Yes, your Honour, in fact we have some terms of settlement the parties have agreed which I pass up to you.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN6

MR DENT: Would your Honour like to read that first or would you like a background to the matter or - - -

PN7

THE SENIOR DEPUTY PRESIDENT: You might just give me a background, yes.

PN8

MR DENT: Your Honour, this matter arises out of a incident which occurred at the Australian Animal Health Laboratories in Geelong on 11 December last year when an employee of the CSIRO was found dead in an airlock adjoining a liquid nitrogen storage room and following an investigation into the circumstances of that fatality, the - Comcare served a notice of improvement of two notices of improvement on the acting director of that facility on 21 December requiring a number of measures to be taken to improve safety in relation to access to and egress from the airlock and the liquid nitrogen storage room.

PN9

The applicants appealed against those notices on a number of grounds and notwithstanding that they continued to work in co-operation with Comcare to try and resolve the issues at a practical level and I have handed to your Honour a copy of a field report referred to in paragraph E of the terms of settlement issued by the inspector or issued the initial notices for improvement confirming that given the actions implemented by the applicants under the proposed measures of the time frames they had documented in response to the notice, he was satisfied that there had been compliance.

PN10

In those circumstances, given that the Commission's jurisdiction is, in this matter, a hearing de novo, the parties feel that there is no value in proceeding with an appeal in the circumstances where the matter has been resolved for practical purposes and those circumstances we were consenting and jointly seeking the order that is outlined on page 2 of the terms of settlement.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I might just read those terms if you give me a moment.

PN12

MR DENT: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: I seem to have four appeals in front of me, the terms of settlement refer to two improvement notices.

PN14

MR DENT: Yes.

PN15

THE SENIOR DEPUTY PRESIDENT: It is awhile since I have looked at the files.

PN16

MR DENT: There were two notices, your Honour, both served upon Stephen Prowse, Acting Director of the facility but under the Occupational Health and Safety Act, the employer or occupier of the facility itself which is the CSIRO also has a right of appeal so both Stephen Prowse as the person served and CSIRO appealed against each notice.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR SNELL: Your Honour, there is a provision which permits service on a person identified as or who appears to be identified as the person in effective control of the work site. Unfortunately, your Honour, the notice should more properly have specified that it was addressed to CSIRO as employer and rather it was addressed to the officer himself.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, well in the circumstances, I am prepared to act in accordance with the terms of settlement agreed between the appellant and the respondent and I will revoke the improvement notices numbered AAHL.COM/001 and AAHL.COM/002 which were issued on 21 December 2001. The relevant instrument will issue shortly. If there is nothing else, gentlemen, we will adjourn the Commission.

ADJOURNED INDEFINITELY [10.22am]