 This week he discusses the Kirk appeal – Potential now for employers to mount a successful defence
The highly anticipated judgment in the High Court case of Kirk v The Industrial Relations Commission: Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) [1] was handed down on Wednesday, 3 February 2010.
The High Court decision will signal a fundamental change in the way in which prosecution proceedings are commenced and decided in NSW.
In practice, the decision appears to bring NSW more into line with other States and Territories, and the proposed construction of the general duties and obligations under the national harmonised laws in that WorkCover NSW will need to specify the measures it considers were reasonably practicable for the employer to implement to eliminate or control a safety risk, in the process of laying charges for a breach of OHS obligations.
Background
The appellant company, Kirk Group Holdings Pty Ltd (Company), and its director Mr Kirk (Kirk) owned a small farm near Picton in NSW.
Due to his lack of farming experience and poor health, Kirk did not take an active part in the running of the farm. To that end he engaged a farm manager, Mr Graham Palmer (Palmer), to look after the day to day operations on the farm including matters relating to occupational health and safety.
Palmer was highly experienced in farm management having managed a large property of his own and as a result Kirk considered Palmer to be a very competent person in this regard.
On Palmer’s recommendation the Company purchased an all terrain vehicle (ATV) for use on the farm. Palmer took delivery of the ATV and was given instruction in its safe use.
For reasons still to this day unknown, Palmer on the day of the fatal incident secured some lengths of steel to the carry racks at the rear of the ATV and proceeded to traverse a steep slope, even though a purpose built access road led to the area where Palmer was delivering the steel for some fencing contractors.
As a result of his actions, Palmer was fatally injured when the ATV overturned.
The Company and Kirk were found guilty by Walton J of the NSW Industrial Court and fined a total of $121,000.
The appeal
The substance of the High Court special leave application was that the construction of section 15(1) of the Occupational Health & Safety Act 1983 (NSW) (now section 8(1) of the Occupational Health & Safety Act 2000 (NSW)) (OHS Act) by the Industrial Court made it impossible for the Company to comply with its obligations and rendered the defences available under the Act inoperative.
The decision
In a strongly worded decision the Court (in particular Heydon J) was highly critical of the Industrial Court’s construction of section 15(1) of the OHS Act and the way in which the prosecution charges were framed. The Court found that it was “absurd” that Kirk was prosecuted at all, and that Kirk and the Company were denied an opportunity to defend the charges due to what the Court claimed were “injustices” in the way the proceedings against Kirk and the Company were conducted.
The Court’s decision overturns the previous approach of the Industrial Court that the commission of an offence by a person does not require a demonstration that certain measures should have been taken to prevent a safety risk, with the Court criticising the fact that the particulars to the charge merely restated provisions already set out in section 15(1).
The Court cited the common law requirement that a defendant is entitled to not only be told of the legal nature of the offence with which he or she is charged, but also the particular act, matter or thing that the defendant is alleged to have done in committing the offence.
This decision will fundamentally change how WorkCover NSW frames charges for breaches of the OHS Act, requiring it to specify the measures that should have been taken by a person to eliminate the alleged risk to health and safety. The prosecution and the Industrial Court (in its reasons) now must identify the acts or omissions of the defendant. A failure to do so would render the Industrial Court powerless to convict and fine a defendant.
The identification of particular acts or omissions by the prosecution will give a defendant the opportunity to utilise the previously redundant defences under section 28 of the OHS Act.
The Court also addressed the issue of appeals to the NSW Court of Appeal. Importantly, the Court found that State Parliaments had no power to enact legislation that changed the nature of a State Supreme Court. The effect of this in NSW is that section 179 of the Industrial Relations Act 1996 can no longer operate to restrict a defendant from proceeding directly from the Industrial Court at first instance to the Court of Appeal, on issues such as jurisdictional error.
In a particularly scathing separate decision Heydon J criticised Walton J’s conclusion that Kirk did not supervise the daily activities of employees or contractors working on the farm.
Heydon J found this proposition “astonishing” and stated that:
The suggestion reflects a view of the legislation which, if it were correct, would justify many of the criticisms to which counsel for the appellants subjected it as being offensive to a fundamental aspect of the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear.
It has long been the approach of the Industrial Court that an employer must have adequate systems in place to ensure the health and safety of even the most reckless and inattentive workers. The Court in its reasons identified the recklessness of Palmer as a factor in the incident. It is likely that in the future more weight will be given to evidence of reckless behaviour of an injured worker in establishing whether an employer did everything that was reasonably practicable to ensure the worker’s safety.
Implications for employers
The decision in this case will mean changes will have to be made in the way in which prosecutions are commenced and conducted in NSW in the future.
The requirement for WorkCover to identify the measures that should have been taken by a defendant in eliminating or controlling safety risks will allow defendants to properly identify the acts or omissions that constitute an offence, providing greater scope for the defendant to rely on the reasonably practicable defence in section 28 of the OHS Act when entering a plea of not guilty.
The reliance by WorkCover and the Industrial Court on the “absolute” nature of the general duties under the OHS Act appears now to have been consigned to history.
Click here, to attend a breakfast seminar on this event. |
