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High Court Says No to Constant Supervision

Determining Every MoveConstant surveillance of employees’ work activities is an impossible and unfair obligation on business owners and employers according to the High Court of Australia. Justice Heydon made these remarks when handing down a decision in Kirk vs. WorkCover NSW (and Ors), on 3 February 2010.

This is an important issue for anyone employing staff. It concerns the conduct of prosecutions in New South Wales and the defence of prosecutions under Occupational Health and Safety (OHS) legislation in all Australian States and Territories.

This is a welcome development that recognises the reality of a modern Australian business. While this decision was based on existing NSW OHS law, the Commonwealth and State / Territory Governments have agreed to enact harmonised OHS legislation and regulations (which have addressed some of our concerns) at the end of 2011.

The case relates to a Mr Kirk who operated a farm in New South Wales. He employed a small number of employees, including Mr Palmer who chose to drive a company vehicle directly down a sharp incline instead of using another safe private road and was killed. It was alleged by the WorkCover Authority of New South Wales that Mr Palmer’s employer Kirk Group Holdings Pty Ltd and its Director, Mr Kirk had failed to take reasonably practicable steps to ensure the health and safety of Mr Palmer.

The High Court quashed the original conviction and penalty against Mr Kirk and the employing entity.

There are a number of important outcomes from the decision:

  • Availability and appeals – The OHS Act limits the rights of appeal of parties convicted by the Industrial Court of NSW of OHS offences. However, the Court ruled that parties are entitled to appeal jurisdictional errors to the Supreme Court of New South Wales.
  • Identification of the defendant’s obligation – The prosecutor must properly identify and plead the ways in which the defendant ought to have acted to manage health and safety, not just plead that a failure to ensure health and safety has occurred.
  • Basis of the Prosecution – was critical of the basis of the prosecution itself and highlighted that the proceedings involved an act of employee misconduct that was ‘inexplicably reckless’.

About the Author

Safety Concepts is an online resource providing up to date insights and covering issues in the field of Workplace Safety.

Comments (1)

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  1. This is highly topical politically too re the batt installation debacle. The most welcome and just aspect is that the authority must particularise what the employer should have done. However employers must still have systems to train people before its ok to leave employees on their own. My personal experiences as a young farm worker and tradesman’s assistant are hair raising on reflection. Lets not forget that if the training isn’t there then safety isn’t. Employer groups should not take this case as a charter for sloppy supervision.

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