Kirk “a win for business or a lesson for Regulators?”

This article will explore the operational significance of the decision in Kirk and Another v Industrial Relations Commission (NSW) and Another; Kirk Group Holdings Pty Ltd and Another v WorkCover Authority (NSW) (2010) 262 ALR 569 (Kirk). The implications of Kirk relate to the rigour and specificity for how Regulators will frame prosecutions in the future. There will be a need to have in place safety systems designed to effectively discharge the due diligence obligations now placed upon officers of corporations by section s27. A framework such as AS/NZS 4801:2001 Occupational health and safety management systems will facilitate the identification and management of organisational risk. It is anticipated that within the qualifier of reasonably practicable this will be the minimum standard of proofing against future prosecutions.

The finding in favour of the appellant in the Kirk decision was hailed as a beacon of rationale for the business community. The decision was perceived as a finding for common sense and a rejection of the contentious “reverse onus of proof” laws that prevailed in New South Wales prior to the introduction of the Work Health and Safety Act 2011 (NSW).

The reality of Kirk is that the decision was based upon three issues. Firstly, the issue of the supervisory jurisdiction of the NSW Supreme Court being removed by the NSW legislature denying appeals to the NSW Supreme Court in matters of jurisdictional error in contravention of ch III of the Constitution. Secondly the Prosecution calling Mr Kirk as a witness in contravention of the rules to which the Industrial Court is subject, and thirdly the failing of WorkCover in formulation of the charges. It is this last area which the expert safety witness may comment leaving the subjects of Constitutional Law and Evidence to those expert in the areas.

It is an established Common Law principal that a defendant is entitled to be told of the legal nature of the offence with which they are charged and of the particular acts or omissions that are alleged. The failing of WorkCover to define the specific nature of the charges was found to be an essential element that was missing in the case against Kirk. In short it was the prosecutors failing rather than Kirk mounting a successful due diligence defence that primarily resulted in the outcome of the case. The reason for this is that it was deemed impossible to mount the due diligence defence in the absence of specifics relating to the charges.

The court noted that “The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53”. Further the charges did not identify what reasonably practicable measures could or should have taken nor did they identify what the act or omission was that constituted the alleged breach. The net result of which is those who have been accused could not know what measures they needed to prove in order to mount a defence.

Subsequent to Kirk this position has been followed by the Queensland Court of Appeal in the decision in NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor [2013] QCA 179 (NK Collins). The Court found as per Holmes JA: In my view, it was incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers‘ safety from the risk; which would, presumably, have been a means stated in the Forest Harvesting Code of Practice. That would in turn clarify what the risk was, and whether it was alleged to emanate from the existence of dead trees which might fall or whether it was posed by some feature of the system of work. It would then fall to the applicant to make out its defence..”.

It follows that the decisions in both of the above cases have no doubt alerted the various State Regulators as to the requirement to carefully and accurately structure the charges that they will bring against companies and their officers in regards to prosecutions under the Work Health and Safety Acts moving forward. The requirements upon the Regulators to more specifically frame the charges will result in a subsequent requirement for business operators to be aware of and apply the measures that are commonly available such as those contained within Codes of Practice, Australian or Industry Standards. Further, it will require a risk based evaluation to ensure that the measures adopted are effective, reasonably practicable and do not overly burden the organisation or fail to control the risk.

The practical implications for organisations is that they will need to have in place systematic processes to ensure they are identifying, managing and monitoring the risks associated with their operations. The requirements contained under the positive Due Diligence duties and AS/NZS 4801:2001 Occupational health and safety management systems – Specification with guidance for use, both provide frameworks of varying complexity for achieving a structured approach to this outcome.

In order to manage safety risk effectively and proof against well framed and specific prosecutions it will be essential for officers to review the operations of the business, to be cognisant of the risks associated with the operation, have the systems in place to manage those risks and to monitor the processes in place to assure themselves of the effectiveness of said systems.

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