Employers urged to focus on Kirk ruling in WHS cases


Lawyers say it continues to have effect on prosecutions as Simon Transport case shows

Employers urged to focus on Kirk ruling in WHS cases
The Kirk case retains its power.

 

A landmark work health and safety (WHS) ruling continues to have prosecutors guessing a Clayton Utz lawyer notes.

One of the more recent outings, Archer v Simon Transport Pty Ltd, hinged on this very case, senior associate Hilary Searing says.

The 2010 Kirk v Industrial Court of NSW findings underlined that prosecution of alleged breaches of WHS requirements must identify what measures an employer or operator could have taken but did not take to avoid such an incident.

"For some time since Kirk, prosecutors have grappled with the necessary level of detail required in a charge," Searing writes in an advisory.

And those in the Queensland District Court failed to arrive at an effective remedy in the Kevin Archer case.

In the Simon case, the Queensland WHS Regulator alleged the company breached its statutory duty of care when a worker was injured while unloading one of its trucks at a customer's work premises.

Searing notes that in its complaint, the Regulator specified that Simon Transport failed to ensure, so far as was reasonably practicable, the health and safety of its worker by failing to:

  • develop and implement adequate work procedures to manage the hazards for sole drivers
  • develop safe work procedures for the unloading of bulk rolls of electrical cable at a client's premises
  • undertake any, or any adequate, risk assessment for this unloading in accordance with the Code of Practice How to Manage Work Health and Safety Risks 2011
  • develop any , or any adequate safe systems of work in accordance with the Plant Code of Practice 2005
  • provide a standard of work health and safety which was the same or higher than the relevant Codes.

It further stated that Simon Transport could have implemented a number of control measures to prevent the situation, essentially by repeating the allegations listed in the paragraph above.

But the Magistrate's Court struck out the complaint in May because it failed to sufficiently set out the legal nature of the offence and its essential factual ingredients.

The Regulator appealed the decision.

But District Court judge Koppenol noted that the regulator's complaint merely recited the alleged failures rather than identifying how the relevant work procedures, standards and systems fell short of what was alleged to have been reasonably practicable.

Judge Koppenol also said that the specified control measures did not "cure those deficiencies or provide any meaningful particularisation" and instead served to repeat the alleged failures listed in the complaint.

"This reaffirms the need for prosecuting authorities to sufficiently identify the nature of the offence and how the employer fell short of the expected standard and will allow employers to be in a better decision to defend these matters by knowing exactly where it is alleged they fell down in their duty of care," Searing says.

"The employer can then attempt to satisfy the Court that it was not reasonably practicable to take the identified measure in question, as opposed to having to establish that there were no reasonably practicable measures of any kind which could have addressed the risk (as has previously been necessary with the way that complaints were framed)."

She sets out the following checklist for employers faced with such a prosecution to bear in mind:

  • a defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge
  • the complaint must inform the court of the particular offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet
  • the charge "must at least condescend to identifying the essential factual ingredients of the actual offence"
  • a complaint must specify "the time, place and manner of the defendant's acts or omissions"
  • the complaint must identify the measures which should have been taken. If there is or was a risk, the question is: what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge
  • where it is alleged that a specific statutory provision, or a code, or a guideline or the like has been breached, the relevant provision must be identified.

 

 

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