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OHS Court Decision Favours Builders

A decision handed down earlier this year by the High Court of Australia has put builders, employers and other principal contractors in a much better position to defend an OHS prosecution and argue that it was not reasonably practicable to comply with occupational health and safety laws, and it will force WorkCover to change the way that it has prosecuted builders / employers / principal contractors in NSW for many years.

Where this E-News Bulletin refers to a “builder”, it includes both a principal contractor who engage contractors, and an employer who employ employees (or both).

Facts of the case

Kirk Group Holdings Pty Ltd was the owner of a farm in NSW.  Mr Kirk was a director of the company, but did not take an active role in running the farm because of his lack of farming expertise and poor health.  He left the daily operation of the farm to Mr Graham Palmer, who was employed as the farm manager.

In March 2001, Mr Palmer drove a vehicle owned by the Kirk Group off a concrete road and down the side of a hill at the farm.  The vehicle overturned, and Mr Palmer was killed.

The Law

OHS laws provide that a builder “must ensure the health, safety and welfare at work” of all individuals on the building site, including employees and contractors.  This suggests that even if there is an accident on the building site and someone is injured or killed, the builder has automatically broken this law, because they have not ensured the health, safety and welfare at work of the injured or deceased person.

Penalties for builders can be as high as $1.65m and up to 5 years imprisonment in relation to a death at the workplace.

It is a defence for a builder under OHS laws if the builder can show that it was not reasonably practicable for the builder to comply with the law.

The Prosecution

WorkCover prosecuted both the Kirk Group and Mr Kirk under OHS laws, arguing that both the company and Mr Kirk were guilty simply because they failed to “ensure the health, safety and welfare” of Mr Palmer, who was killed on the farm.

The Court’s Decision

The High Court decided that it is not enough for WorkCover to argue that simply because an employer has failed to “ensure the health, safety and welfare” of a person at work, that the employer has broken the law.  The Court said that it was necessary for WorkCover to identify exactly what the employer should have done to prevent the accident, because they employer would need such information in order to be able to defend the prosecution and demonstrate that it was not reasonably practicable to comply with OHS laws.  Without knowing what WorkCover believed should have been done, the employer cannot then show that it was not reasonably practicable to do that.

Summary

Although this court decision puts builders in a much better position to defend a prosecution from WorkCover, it does not mean that you should relax when it comes to OHS issues.  Builders should continue to comply with OHS laws and have safe systems of work in place.