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Written on 17 February 2010 . Posted in Workplace Health and Safety
The High Court of Australia has quashed convictions against an employer and a director in a decision that has far reaching implications for OHS prosecutions in NSW and throughout Australia.
In Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales  HCA 1, Kirk Holdings Pty Ltd owned a farm in Picton and employed Mr Palmer as farm manager. Mr Kirk was a director of the company and did not have farming experience or the day to day control of the farm. In 2001, Mr Palmer was driving an all-terrain vehicle on the farm when he left a purpose built private road to continue down a steep slope. The vehicle overturned, killing Mr Palmer.
The company and Mr Kirk were prosecuted under the predecessor to the Occupational Health and Safety Act 2000 (NSW) for failing to ensure health and safety at the farm. Both parties entered a not guilty plea, but were found guilty and fined $110,000 and $11,000 respectively in what is now known as the Industrial Court of NSW.
High Court Decision
The defendants appealed in various courts but were unsuccessful until reaching the High Court, which quashed the convictions and dismissed the penalties. In addition, the High Court ordered WorkCover NSW to pay legal costs.
The High Court dealt with several issues in allowing the appeal, including the interpretation of duties, the operation of defences and the conduct of prosecutions.
The decision has a number of key implications for duty holder under OHS legislation including:
- Compliance with OHS duties remains crucial, with the standard required by OHS legislation being greater than the common law duty of care.
- When drafting charges, the prosecution will need to particularise the specific risks the defendant allegedly failed to address and the measures that should have been taken to avoid those risks.
- Given that the prosecution is required to specify what measures should have been taken to address risks, defendants will be in a stronger position to defend charges.
- Unfair Dismissal, 46
- Fair Work Commission, 25
- Bullying, 24
- employment contract 21
- Fair Work Act 2009 (Cth) 15
- termination 12
- Discrimination, 12
- Misconduct, 11
- Sexual Harassment, 9
- Breach of Contract, 8
- adverse action, 8
- Modern Awards, 7
- FairWork Commission 7
- Contract, 6
- Harassment, 6
- Annual Leave, 6
- industrial law 5
- Anti-bullying order, 5
- Penalty rates, 5
- Performance Management, 4
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