NSW WorkCover worked over

A High Court decision will have a significant impact on future occupational health and safety prosecutions in NSW and Queensland

February 22, 2010

A landmark decision in the High Court of Australia will have a significant impact on future occupational health and safety (OH&S) prosecutions in NSW and Queensland, according to a leading employment law specialist.


Recently the High Court overturned a ruling by the NSW Industrial Relations Commission to convict an employer of OH&S offences.


In doing so it unleashed a scathing attack on WorkCover and the Industrial Relations Commission.


Its actions were "oppressive", it was responsible for "several injustices" and the respondent was "treated very unjustly".


Prosecutors had failed to identify what the respondent had or had not done, the High Court ruled.


The judgement labelled as "absurd" the argument that the respondent, a farm owner, should be held accountable for the death of a farm manager who had experience and skill much greater than his.


The Kirk case

In the original Industrial Relations Commission case, Kirk Group Holdings and its director Graham Kirk were prosecuted after the farm manager died in an all terrain vehicle crash.


Lacking farm experience, Kirk reportedly left the more experienced farm manager, Graham Palmer, to run the day-to-day operations.


The crash occurred after Palmer left a formed road for no apparent reason, driving the vehicle down the side of a steep slope.


The prosecution argued Kirk had breached relevant OH&S legislation by not ensuring the health, safety and welfare of his employee.


Both Kirk and his company were subsequently convicted and penalties totalling $121,000 were imposed against them.


According to Tobin, one of the judges who overturned this decision pointed out it was illogical to prosecute the owner when the manager had so much skill and experience, and the farm manager’s actions, in driving down the side of a hill instead of on a safe road, were reckless.


The implications

Malcolm Davis from the law firm Herbertgeer claims the ruling "has forever changed the way in which OH&S prosecutions in NSW are instituted, heard and determined".


The landmark decision means the onus now falls on the prosecutors to provide specific details about an employer’s actions or omission which breached legislation.


While saying it is necessary for the employer to identify and reduce risks, the High Court ruling states: "It is also necessary for the prosecutor to identify the measures that should have been taken".


By not detailing what Kirk was alleged to have done, the High Court says the farmer was denied the opportunity to properly defend himself.


HopgoodGanim employment law specialist Andrew Tobin calls the decision a turning point for OH&S law in NSW and Queensland.


"Under current law, prosecutions for safety incidents have been very difficult to defend. Typically, prosecutors were able to argue that the employer was criminally liable simply because the accident had occurred," he says.


"This decision means that courts will require much more detail about how particular actions or omissions by the employer breached OH&S requirements."


Employer responsibility

Tobin says the High Court’s ruling does not mean businesses can now breathe a sigh of relief.


If anything, he says there will now be even more of an emphasis on detail.


It means any OH&S incident will be scrutinised very closely by the regulator.


Similarly, Tobin says businesses should not approach OH&S any differently or regard the issue as any less serious because of the ruling.


"If something goes wrong and you can’t show the regulator you did everything in your power to ensure the employees safety, you can get prosecuted," he says.


However, Tobin adds that businesses can now have more confidence when hiring people to complete a job outside of the business’ expertise.


And the Kirk ruling means WorkCover may be busy for a long time to come.


Tobin says calls have already been made for a Royal Commission into all convictions under the NSW legislation over the past 15 years.


While similar lobbying could occur in Queensland, he says it is "very unlikely" previous cases will be overturned.


But for future run-ins with the workplace safety bureaucracy, Kirk’s decision to take on government may just come in handy.


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