High Court of Australia overturns the NSW Workcover OHS Regime

On 3 February 2010 the High Court of Australia handed down a landmark decision in the case of Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1.

This decision has completely overturned the current NSW system of OHS prosecutions and fully vindicates HIA’s past submissions that the NSW OHS law was fundamentally unfair to employers.

The case concerned a NSW hobby farmer, Mr Kirk, whose employee, an experienced farmer, was killed in a tractor accident in 2001. Mr Kirk, who was ill and not residing at the farm, pleaded not guilty but was convicted and fined $121,000 by the NSW Industrial Court. His family company was also found guilty. Mr Kirk unsucessfully appealed to both the NSW Court of Appeal and the the Full Court of the Industrial Court. Firstly the Court of Appeal stated that parties are not entitled to seek a review of Industrial Court decisions in relation to OHS liability. The Full Court also rejected his appeal, accusing Mr Kirk of “forum shopping” and holding that his obligation as an employer to ensure safety was an absolute one.

Mr Kirk finally appealed to the High Court of Australia. In a unanimous judgement, the High Court allowed the appeal, quashing the convictions and ordering that WorkCover pay costs.

The High Court found that NSW Workcover, in prosecuting an employer under the OHS Act, must specify precisely what acts the employer should have taken to meet their obligations to provide a safe workplace. It is not enough to simply allege that the defendant had failed to ensure the safety of the employee.

This decision represents a very fundamental shift of power in the NSW system, and brings the previous unbalanced NSW OHS law back into line with that in other States.  More importantly, the High Court said that it was beyond the constitutional power of the NSW Parliament to prevent appeals on jurisdictional error by lower courts and tribunals to the Supreme Court of New South Wales. The High Court was severely critical of the NSW Supreme Court for failing to protect Mr Kirk’s right to a fair trial.

The new national OHS laws due for commencement in 2012 will impose a duty on employers to do what is ‘reasonably practicable’, which is largely in-line with this judgement. Given the NSW governments commitment to the national harmonisation process it is unlikely that the government will seek to make any immediate changes to the current laws in response to this decision, but there could be some changes in the way prosecutions are conducted.

Some commentators have suggested that the decision has the potential to open up flood gates to appeals by employers who have been ‘wrongly convicted’ in prosecutions of a similar nature. Additionally, the decision may extend to other states who adopt similar approaches to prosecution of OHS breaches.