Is there an absolute obligation to guarantee safety in the workplace?
Since 1983 the NSW Industrial Relations Commission has consistently said that the obligation of an employer to ensure safety at the workplace is absolute and to be guaranteed. The duty to provide a safe workplace extends to hasty, careless, inadvertent and inattentive employees.
On 3 February 2010 the High Court of Australia overturned 27 years of jurisprudence about an employer’s general duty to ensure safety: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)  HCA 1. The High Court opted for a more workable interpretation of the general duty.
The decision is significant and has enormous implications for the prosecution of offences. Employers still have a high duty of care to ensure safety but genuine compliance is more realistic.
Kirk Group Holdings Pty Ltd owned a farm. Mr Kirk was a director, but did not run the farm. He had no farming experience and was not in good health. He left the day to day operation of the farm to Mr Palmer, as farm manager. Mr Palmer was "a man of optimum skill and experience".
The company had an All Terrain Vehicle. It provided instruction and guidance on its proper use. On 28 March 2001, Mr Palmer used the vehicle to deliver steel to contractors. A formed road led to the area where the contractors were working. Mr Palmer left that road and proceeded down the side of a steep hill. Nobody knew why Mr Palmer had elected to drive down the hill; it was "inexplicably reckless". The vehicle overturned and Mr Palmer was killed.
WorkCover prosecuted the company and Mr Kirk for failing to ensure the safety of Mr Palmer. WorkCover alleged a general breach of the duty but did not identify how the company or Mr Kirk breached their duty or what measures they should have taken to prevent the death.
The NSW Commission found the charges proved and convicted the company and Mr Kirk.
Ultimately, the appeal of the company and Mr Kirk made it to the High Court. They argued the IRC’s approach to the interpretation of the general duty made compliance impossible.
Some comments on the general duty
The High Court made some important observations about the general duty:
The obligation to ensure safety is personal and non-delegable;
The obligation to ensure safety is higher than the duty to take reasonable care;
The obligation requires an employer to identify the risks and take measures to obviate any identifiable risk;
There is only a breach of the general duty where there is a failure by an employer to take particular measures to prevent an identifiable risk;
An employer is not required to ensure the every possible risk is eliminated; and
An employer must take measures that are reasonably practicable, which involves a common sense assessment.
Criticism of the NSW IRC interpretation
The IRC has said the general duty is absolute requiring an employer "to guarantee, secure or make certain" workplace safety. A prosecutor is not required to demonstrate what particular measures should have been taken, but rather only that there was a general risk and safety was not secured. It can be said that the IRC approach required close to perfection whereas the High Court has been more practicable.
The High Court rejected the IRC approach. It said "references to guarantees ... distracts attention". The duties "cannot remain absolute" when consideration is given to the defence that it was not reasonably practicable to comply with the Act.
An employer is to identify and assess those risks it should identify. It is then to take measures that are reasonably practicable to eliminate or mitigate the risks.
The High Court said about proceedings for an offence:
It is ... necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?
As at no time WorkCover had identified specifically what measures the company and Mr Kirk ought to have taken to protect Mr Palmer’s safety, there was no fair and proper charge brought against them on which they could be found guilty.
The company and Mr Kirk were acquitted. One judge even found it "absurd" to prosecute in respect of a reckless act of a competent and experienced employee.
The High Court judgment is significant. It takes a holistic view of the offence provisions and gives them a workable interpretation. Nevertheless, employers have a general and higher duty to ensure safety and the decision does not mean it is time to rest in the pursuit of a safe workplace.
Author: James Mattson