Easing the OH&S burden
The High Court recently handed down a decision that clarifies what is expected of employers under the occupational health and safety (OH&S) legislation in NSW. The decision in Kirk v Industrial Relations Commission [2010] HCA 1, has placed employers in a much better position to argue, where appropriate, that it is not reasonably practicable to comply with OH&S obligations.
This is significant for company directors and managers, as NSW law states that when a corporation commits an offence, they are, subject to certain defences, deemed to have also personally committed an offence.
The appellant, Kirk Group Holdings, was the owner of a farm in NSW. Kirk was a director of this company but took no active role in running the farm due to a lack of farming experience and poor health. He left this to Graham Palmer, who was employed as farm manager. In March 2001, Palmer drove a vehicle owned by the Kirk Group off a formed road and down the side of a hill at the farm. It was not clear why he chose to take this dangerous route. The vehicle overturned and he was killed. WorkCover NSW prosecuted Kirk and the Kirk Group for offences under the Occupational Health & Safety Act 2000, specifically for a failure to ensure the safety and welfare of employees at all times. Kirk raised a defence under the OH&S Act, that it “was not reasonably practicable” to ensure the safety of Palmer in this case. As had been the usual practice, the charges set out by WorkCover simply restated the legislative provisions and did not identify any specific measure Kirk should have taken to prevent the accident. This meant that in arguing the defence, Kirk would have had to prove that it was not reasonably practicable to guard against the risks associated with using the vehicle.
Justice Walton relied on the long-standing approach of the NSW Industrial Court in asserting that prosecutions for breaches of sections 15 and 16 of the OH&S Act do not need to refer to the particular measures that should have been adopted by the employer. Rather, all that must be shown is that an employer has failed in its duty to remove general risks to health and safety. If the Kirk Group wished to rely on a defence under section 53 of the OH&S Act, Justice Walton asserted it would need to establish that “no reasonably practicable measures, of any kind... could have been addressed to the type of risk”. Justice Walton consequently found against Kirk and the Kirk Group for breaches of sections 15 and 16 of the OH&S Act.
The majority of the High Court was highly critical of Justice Walton’s judgement and the long-standing line of authority he had relied on. They held that the failure of the prosecution to spell out the particular measures that should have been taken by Kirk made proving a defence impossible. Kirk had a right to know what alleged steps he should have taken before attempting to show these were not “reasonably practicable”. Allowing WorkCover to prosecute without specifying what measures should have been taken made the defence effectively impossible to establish. A statement of an offence must identify the act or omission said to constitute a contravention of the OH&S Act. The onus, however, will remain on NSW employers to demonstrate why compliance is not reasonably practicable. But to establish a defence, employers will no longer need to establish that every possible risk was removed, rather why the particular measures pleaded by WorkCover as constituting a contravention of the OH&S Act were not reasonably practicable.
NSW has historically had a reputation as having the most stringent OH&S laws in the country. This has partly been because of how the legislation has been interpreted by the NSW Industrial Court, specifically the “absolute” nature of the duties of employers to guarantee that all foreseeable risk was eliminated. In Kirk, the High Court has ruled that this interpretation is incorrect. While this is not a reason to reduce vigilance in maintaining OH&S standards, it should lessen the likelihood that all workplace incidents will necessarily lead to a guilty verdict against employers. Kirk has already had an effect. Prosecutions initiated before the High Court’s decision are in an uncertain situation. The parties to one prosecution have agreed to a “stated case” or test case, before the Full Bench of the Industrial Court. This will determine whether the pleadings in that case, which did not specify measures that should have been taken by the employer, as Kirk says that they should, are now invalid. The outcome of this case should prove important.
Maurice Baroni
Partner
Workplace Relations, Employment & Safety
Clayton Utz