Hobby farmer challenges OHS in High Court

Introduced by the Carr Government under the then Minister for Industrial Relations, John Della Bosca, NSW work safety laws have the presumption of guilt instead of innocence, and in prosecutions by unions those unions receive half of the fines. There is no trial by jury, and no rights to appeal against final Industrial Relations Commission (IRC) decisions.

Hundreds of innocent employers including managers and company directors have been prosecuted and fined and all are branded criminals. It has caused numerous bankruptcies and family breakdowns. No other jurisdiction in the world has such laws.

However, at last, the NSW Government is being challenged by a NSW farmer who has launched a High Court appeal against the laws. It is the first time that these laws have been challenged and has enormous national implications and even more so for NSW employers.The case, known as The Kirk Case, involves a farmer who has a NSW work safety criminal conviction against him for the death of a manager in a vehicle accident on his farm.

A report in The Australian newspaper of August 29 on the case said that, “Graeme Kirk, a hobby farmer, was fined $110,000 by the Industrial Relations Commission of NSW in 2006. He was found guilty of failing to provide a safe workplace after a part-time manager on the farm, Graham Palmer, was killed while moving heavy steel using an all-terrain vehicle in 2001. According to Mr Kirk’s submission to the High Court, he had no farming experience and took no part in running the farm due to ill health.

"Among the facts not contested were that Mr Palmer hitched the steel incorrectly – to the ATV’s racks rather than its tow bar – and "cut the corner" of a formed and graded road, dragging the steel down a steep hillside instead. He was killed by the injuries he suffered when the ATV overturned.

"The IRC found Mr Kirk’s company failed to establish a system to eliminate the risk of the ATV overturning when driven off the road or used for towing. This was despite warnings displayed on the front and back racks of the vehicle that they should not be used for towing. Mr Palmer had bought the ATV on behalf of Mr Kirk’s company.

"Mr Kirk’s submission to the court, which argues that the laws are "incapable of compliance", goes to the heart of what makes the NSW workplace safety system different to other jurisdictions. It says the way the IRC interprets workplace safety "is inconsistent with the rule of law and thus offends the Constitution". Mr Kirk contends the IRC ignores the circumstances of the workers who might be exposed to risk, and extends an absolute duty of care from employers to workers who may be "hasty, careless, inadvertent, inattentive, unreasonable or disobedient"."

The High Court will hear the matter this month. The outcome will be of immense interest to all NSW employers.

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