The High Court of Australia's decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales will have a significant impact on the way in which prosecutors commence prosecutions against employers under occupational health and safety legislation, and has already led to the review of current and past proceedings.
Kirk Group Holdings Pty Ltd (Kirk Company) was the owner of a farm. Graeme Kirk was a director of the company but did not take an active role in the running of the farm. The day-to-day running of the farm was left to Graham Palmer who was employed by Kirk Company. On 28 March 2001, Mr Palmer was killed when he drove off a formed road down the side of a steep hill causing the all terrain vehicle he was driving to overturn.
The Kirk Company and Mr Kirk were prosecuted by the WorkCover Authority of New South Wales for a breach of the Occupational Health and Safety Act 1983 (NSW) (OHS Act) (which has now been repealed and replaced by the Occupational Health and Safety Act 2000 (NSW)). The Kirk Company and Mr Kirk were found guilty by the Industrial Relations Commission of New South Wales in Court Session (now the Industrial Court of New South Wales).
The Kirk Company and Mr Kirk unsuccessfully challenged the Industrial Court's decision before a Full Bench of the Industrial Court and then the Court of Appeal of the Supreme Court of New South Wales, before special leave was granted to the High Court.
Before the High Court's decision in Kirk, it was accepted in New South Wales that a prosecutor could establish a breach of an employer's obligations under occupational health and safety legislation by demonstrating the mere existence of a risk to health and safety in the workplace which was not prevented by the employer.
In Kirk, the Full Court of the High Court has found that a prosecutor must not only identify the existence of a risk to health and safety in the workplace, but that it must properly particularise the steps or measures that could or should have been taken by the employer to address the risk. It is an employer's act or omission in relation to these steps or measures which gives rise to the offence. It is not sufficient for a prosecutor to restate the general wording set out in the legislation.
This decision is particularly significant in New South Wales where employers have an absolute obligation to ensure the health and safety of their employees at work unless they are able to establish one of the two defences. The defences require an employer to prove either that it was not reasonably practicable to comply with the relevant provision of the legislation; or that the commission of the offence was due to causes over which the employer had no control.
In its decision, the High Court held that the first of these defences does not require an employer to establish that every possible risk was obviated, just that it was not reasonably practicable to take the steps or measures which the prosecutor identifies could have been taken by the employer to address the risk.
Generally, in other States and territories employers are only required to take measures for the health and safety of employees as are practicable. The High Court has previously held that this requires that a prosecutor must show that the means which should have been employed to remove or mitigate a risk were practicable.
In Kirk, the High Court found that the Industrial Court had misconstrued the relevant provisions of the OHS Act relating to the obligations on employers. This lead the Industrial Court to convict the Kirk Company and Mr Kirk when it had no power to do so because the prosecutor had failed to give proper particulars of the act or omission by the Kirk Company or Mr Kirk which constituted the offence under the OHS Act.
The decision has led to the review of previous decisions under occupational health and safety legislation by employers, and the review of current proceedings where insufficient particulars are provided. The Full Bench of the Industrial Court is currently hearing applications for review of previous judgments on the basis of the Kirk decision.
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