Many OHS prosecutions

Commenting on February's High Court judgment in the Kirk case, the Australian Federation of Employers & Industries has said that it is plain many prosecutions in the NSW OHS jurisdiction have been wrongly decided, beyond the jurisdiction of the Industrial Court of NSW.

The NSW OHS Act has been the source of enormous controversy for over a decade. As administered by WorkCover NSW and interpreted by the Industrial Court of NSW, the safety standard employers are expected to deliver is perfect safety, zero risk. That is not merely impractical, it is impossible to achieve.

The High Court has said that the prosecutor in the Kirk case failed to identify the central features of the breach of the OHS Act which constituted the alleged offence (i.e. the particular risk that existed and the measure which should have
been taken 'to obviate an identifiable risk'). This then left the defendant with the impossible task of trying to defend unstated alleged breaches and was a fatal jurisdictional failure.

It was also clear to the High Court that the Industrial Court's original guilty verdict was based on a misconception of the law.

As a result, the High Court quashed the Kirk decision and several intervening appeal decisions and awarded costs against WorkCover NSW. President of the AFEI, Garry Brack said, "We call upon the State government to immediately
establish a Royal Commission to review all decisions under the OHS Act (NSW) and to determine which ones suffer from the fatal flaws identified in the High Court's Kirk judgment. They also should be reversed and costs repaid to the employers concerned.

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