A landmark decision in the High Court of Australia will have a significant impact on future occupational health and safety prosecutions in New South Wales and Queensland, says a Queensland employment law specialist.
The High Court last week overturned a ruling by the New South Wales Industrial Relations Commission to convict an employer of OHS offences, even though the charges against the employer didn’t identify what he had or hadn’t done to cause the employee’s accident.
According to Andrew Tobin, head of HopgoodGanim’s Industrial and Employment Law team, the decision is a turning point for occupational health and safety prosecutions in New South Wales and Queensland.
“Under current law, prosecutions for safety incidents have been very difficult to defend. Typically, prosecutors were able to argue that the employer was criminally liable simply because the accident had occurred. This decision means that courts will require much more detail about how particular actions or omissions by the employer breached OHS requirements”.
In the original Industrial Relations Commission case, the owner of a farm was prosecuted after his farm manager died in an all terrain vehicle crash on the farm. The owner lacked farm experience and left the more experienced farm manager to run the day-to-day operations. The vehicle had been purchased on the farm manager’s recommendation, and the crash occurred after he left a formed road for no apparent reason, driving the vehicle down the side of a steep slope.
The prosecution argued that the farm owner had breached relevant OHS legislation by not ensuring the health, safety and welfare of his employee. The farm owner and his company were convicted and penalties totalling $121,000 were imposed against them.
According to Mr Tobin, one of the judges who overturned this decision pointed out that it’s illogical to prosecute the farm owner when the farm manager had so much skill and experience, and the farm manager’s actions, in driving down the side of a hill instead of on a safe road, were reckless. “The prosecution didn’t identify what measures the employer could have taken, but didn’t, to prevent this accident. As a result of this decision, prosecutors will need to provide specific details from now on about the employer’s actions or omissions that breached legislation”.
“Incidents that might have been prosecuted in the past may not be prosecuted in the future if it is difficult to identify exactly what the employer should have done to eliminate or reduce risks to the employee”.
Mr Tobin adds that calls have already been made for a Royal Commission enquiry into all convictions under the NSW legislation over the last 15 years.
Contact:
Esther Cohen, Communications Advisor
Tel: 07 3024 0192
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