Workplace High Court sets new direction for workplace Relations and Safety health and safety prosecutions 10 February 2010 Kirk v Industrial Relations Commission - Kirk The High Court decision Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector In overturning the Industrial Court’s decision, the Childs)  HCA 1 (Kirk Decision) High Court took into account various issues. Importantly however, the High Court found that the In the recent Kirk Decision, the High Court statements of the offences as particularised in the unanimously quashed the convictions of Kirk charges did not identify the measures Kirk Holdings Group Holdings Pty Ltd (Kirk Holdings) and its and Mr Kirk could have taken but did not take. The Director, Mr Kirk, and set aside their combined majority of the High Court bench observed: $121,000 fine handed out following the death of a farm manager whilst at work. ‘Needless to say, the appellants could not have known what measures they were required to The decision is one of the most significant prove were not reasonably practicable.’ workplace health and safety rulings in recent times and, while it has a direct impact on workplace health and safety prosecutions in New South What are the implications in New Wales, it may also pave the way for changes to the South Wales? way that prosecutions in other jurisdictions are run, In summary, the High Court determined, under the especially Queensland. New South Wales occupational health and safety legislation, that: Background • allegations of a breach of the legislative OHS Kirk Holdings owned a farm at Picton in New provisions need to be properly particularised in South Wales. Mr Kirk employed Mr Palmer as the order for a defendant to be provided with the farm manager. Mr Kirk had a clean industrial record opportunity to respond. It is not enough for the stretching 20 years and was known as someone prosecution to simply specify the nature of the who took care in his duties. The evidence showed allegations, and that Mr Palmer had previously run his own farm • for a conviction to stand, the prosecution must and Mr Kirk believed Mr Palmer to be a competent identify what the employer could have done to farm manager, having greater experience than Mr Focus prevent a workplace incident. The High Court’s Kirk in managing farms. approach is, perhaps best summarised by this On the day of the incident, 28 March 2001, Mr observation made by the majority: Palmer was delivering materials to workers in the ‘If a risk was or is present, the question is - what back paddock of the farm. For unknown reasons, action on the part of the employer was or is Mr Palmer took his vehicle off road and proceeded required to address it? The answer to that down a steep slope on his way to the back question is the matter properly subject of the paddock. The slope was not part of the course charge.’ normally driven on the farm and there were other roads available and usually used to access the back Although based on an earlier version of the New paddock. In driving down the slope, Mr Palmer’s South Wales legislation, the Kirk Decision remains vehicle overturned and he was fatally injured. applicable to the current laws. This decision therefore means that defendants to WorkCover Kirk Holdings, as Mr Palmer’s employer, was Authority prosecutions in New South Wales will charged with failing to ensure the safety and have a better understanding of the case they are to welfare of all employees at work. Mr Kirk was also meet and improves the chances of a defence being charged in his capacity as a director of Kirk available. Holdings. Kirk Holdings and Mr Kirk were found guilty of the offences charged and were fined in a Importantly, the nature of obligations owed under decision handed down by the Industrial Court of the legislation remains unchanged and therefore New South Wales. New South Wales employers need to remain diligent in preventing workplace incidents, rather Appeal proceedings in the New South Wales Court than relying upon a defence being available if an of Appeal and Court of Criminal Appeal followed, incident occurs. until the matter was finally heard in the High Court in late 2009, with judgment of the High Court handed down on 3 February 2010. Level 11 Central Plaza Two 66 Eagle Street Brisbane QLD 4000 GPO Box 1855 Brisbane QLD 4001 Australia Telephone 07 3233 8888 Fax 07 3229 9949 Email email@example.com Web www.mccullough.com.au What are the implications elsewhere? Further developments to watch out The Kirk Decision is likely to have implications as to for how prosecutions are run even outside New South Despite the current differences between States Wales. about the need to provide particulars as part of In particular, it may impact upon proceedings in workplace health and safety prosecutions, the Kirk Queensland which, like New South Wales, has a Decision may have greater application if the High legislative scheme that has a reverse onus of proof Court’s views are picked up as part of the national placed upon defendants and has been the subject harmonisation of workplace health and safety of judicial interpretation by a State Court that does laws. On this, we will have to wait and see. not require particulars of the alleged failures to be For further assistance or enquiries please contact: pleaded. Workplace Relations and Safety Group As at the date of this Focus, we are unable to comment as to the official position adopted by Tim Longwill on 07 3233 8974 Workplace Health and Safety Queensland (WHSQ) Cameron Dean on 07 3233 8619 in response to the Kirk Decision. However, in Michael Moy on 07 3233 8720 current matters being prosecuted by WHSQ we Hayden Small on 07 3233 8709 have not received any indication that WHSQ will Angela Petie on 07 3233 8718. agree to amend their complaints to provide further particulars of alleged breaches of the Workplace Focus covers legal and technical issues in a general way. It is not designed Health and Safety Act 1995 (Qld). to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice Assuming this is representative of WHSQ’s view, the should be obtained before taking action on any issue dealt with in this publication. position in Queensland is that a defendant cannot If you would prefer not to receive further Focus newsletters from us, rely upon the Kirk Decision to seek particulars of please email firstname.lastname@example.org with ‘unsubscribe’ in the subject heading and we will remove your address from our mailing list complaints against them. To alter this position will or write to us with your request to unsubscribe to Business Development require either legislative change or a successful and Marketing at McCullough Robertson. Court challenge - perhaps requiring consideration of the Queensland position by the High Court. If the Kirk Decision was applied in Queensland, the effect would be that particulars would be required to be pleaded by the prosecution. Even if particulars were provided, like New South Wales, the legislative obligations would remain unchanged and there could be no guarantee that a defence would be available. However, the increased prospect of a defence being available in Queensland would be a welcome development, especially when it is considered that the Department of Justice and Attorney General’s 2008/09 annual report reveals that WHSQ enjoys a 90% success rate in their prosecutions.