Easy OHS

Crisis Looms for Australian OHS Laws

Wednesday, March 17, 2010

The enforcement of workplace safety law in Australia and in particulatr NSW faces a potential crisis next month when a test case will determine if the state's WorkCover authority will need to abandon or re-plead hundreds of flawed prosecutions.

The test case, before a four-judge bench of the state Industrial Court, was initiated by WorkCover after the agency was confronted by fresh legal challenges to the way it has been applying occupational health and safety law.  Queensland prosecutions are also in doubt in light of the Kirk case.   The ramifications will touch all Australian jurisdictions. 

Those challenges are part of an upheaval in workplace safety law flowing from last month's High Court decision quashing a conviction against hobby farmer Graeme Kirk because of errors made by WorkCover and the NSW Industrial Court. 

Leading industrial lawyers say the decision in the test case, known as Nathan Hamilton v John Holland, could have a wide impact because the errors in the Kirk prosecution were common practice at WorkCover.

Uncertainty about workplace safety law has also arisen in Queensland where prosecution practices by Workplace Health and Safety Queensland are closely related to the procedures used in NSW.

Solicitor Jamie McPherson, of MVM Legal, said he would be in court next Tuesday at Southport seeking to have charges against his client, Pryme Pty Ltd, thrown out because they do not comply with the standards laid down by the High Court in the Kirk case.

"There are another 10 matters in Queensland that I am aware of that are coming up," he said.

"This is not just a NSW problem. It's a massive problem here too," said Mr McPherson.

WorkCover declined to answer a series of questions about next month's test case and issued this statement: "WorkCover is continuing to review all matters currently before the court on a case by case basis. WorkCover is unable to comment on matters before the court."

The agency declined to say how many prosecutions had already been reviewed, whether that task had been outsourced to law firms, how much the review was expected to cost and whether WorkCover had made any changes after the High Court ruling.

Because the agency also refused to divulge how many workplace safety prosecutions it is currently running it is impossible to say exactly how many current matters could be in jeopardy.

Government figures show that over the past five years there has been an average of 286 successful prosecutions in NSW each year for breaches of workplace safety laws.

State Finance Minister Michael Daley, who is responsible for WorkCover, said it would be "inappropriate to comment on matters which are, or will be coming, before the courts".

The state opposition called for the state government to introduce legislation urgently to ensure that the state has a fair system of workplace safety.

Instead of allowing WorkCover to review its own prosecutions, industrial relations spokesman Greg Pearce called for an independent review.

He said the state government "cannot just ignore the High Court decision" that criticised the way workplace safety law had been applied in NSW.

" The obligation on them is to fix it now," Mr Pearce said.

The High Court quashed Mr Kirk's conviction because he had not been given the opportunity to properly defend himself. He had been given insufficient particulars about the charge against him and was therefore prevented from running a proper defence.

The Industrial Court had also permitted a substantial departure from the rules of evidence.

Two weeks after the Kirk decision, lawyers for construction company John Holland were in the Industrial Court arguing that WorkCover's prosecution of that company should be thrown out because of the same flaws.

This prosecution arose from a cave-in during construction of the Lane Cove road tunnel in Sydney's northern suburbs in which nobody was injured.

John Holland's lawyers filed a notice of motion on February 18 asserting that the charges drawn up by WorkCover did not say what the company should have done to avoid the alleged risk to its employees. Because of that, the company could not determine what it needed to prove to show that it was not reasonably practicable to avoid the alleged risk.

It was therefore unable to avail itself of the defences in the Occupational Health and Safety Act, the notice of motion says.

The test case will be heard on April 6 and 7 before judges Roger Boland, Michael Walton, Wayne Haylen and Justice Backman.

Both sides will be represented by the same silks who were involved in the Kirk case in the High Court: John Agius SC will again appear for WorkCover and Garry Hatcher SC -- Mr Kirk's silk -- will appear for John Holland. Among the questions that Justice Backman has referred to the full bench is whether the "purported charge" laid against John Holland contains all the essential legal elements and, if it does not, whether it should be dismissed.

The full bench has also been asked whether WorkCover has included all the essential facts of the offence and, if they have not been included, whether the case can proceed as currently pleaded.

Industrial lawyer Malcolm Davis, of HerbertGeer, said WorkCover had used standard forms of orders when making applications to the Industrial Court "for many, many years". "Most prosecutions would be in the form that are the subject of these questions of law. So a significant percentage of their charges may well be void," Mr Davis said.

A similar challenge, also based on the Kirk decision, has been filed by lawyers for company director Hilton Grugeon, who chairs Hunter Quarries. His legal team told the Industrial Court last week that he, too, had been given insufficient information to run a proper defence. The legal questions in this case will also be determined as part of the test case.

"Ultimately we will argue that the decision in Kirk should result in the proceedings against my client being struck out," said Mr Grugeon's solicitor Greg Murray.

Among the accusations made against Mr Grugeon is that he, as company chairman, failed to provide enough supervision to ensure that a truck driver, who was killed in a road accident, was wearing a seatbelt.

The Kirk principles are also being used in separate proceedings in the NSW Court of Appeal in which construction companies Thiess and Hochtief are seeking to overturn their 2008 convictions in the Industrial Court for failing to eliminate a safety risk.

The court fined Thiess $24,750 and Hochtief $16,500 after a construction worker was found dead in a sediment pond associated with Sydney's Epping to Chatswood rail link. The evidence revealed that the worker, Luke Bandrowski, did not drown in the companies' sediment pond, but died of a heart attack before his body rolled into the water.

Thiess group counsel Ted Williams said the High Court's decision in Kirk had "shone significant light on this area". "We believe that the approach that was taken in Kirk is consistent with the concerns we had about the Bandrowski decision," he said.

Lawyers say the test case before the full bench of the Industrial Court and the other moves provide hope for employers and managers who received criminal convictions after trials that did not comply with standards mandated by the High Court in Kirk.

Industrial lawyer Andrew Tobin, of law firm HopgoodGanim, said there was a possibility of further legal action as companies and individuals sought to have criminal convictions expunged and fines repaid.

In 2007-08, NSW collected $8.6 million in fines from companies convicted under the state's occupational health and safety laws. In the same period, Victoria imposed penalties of just $3.2m.

Mr Tobin said most of those who had been convicted in the NSW Industrial Court would face a difficult task in overturning their convictions if they had agreed to plead guilty or the appeal period had expired.

"Most companies usually plead guilty after receiving advice that workplace safety law in NSW is so biased that any defence is hopeless," Mr Tobin said. He said the most efficient way of addressing the uncertainty would be to hold a royal commission instead of expecting companies to pay for another round of litigation.


Reported by:  Kym Smith of the Autralian :  12 March 2010 

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