The August Safety Networking Group was hosted by Snap Fresh Catering and was supported by Jamie McPherson, Partner at MVM Legal. Jamie explored an overview of the NSW Kirk case, as background legal discussion to the Queensland Court of Appeal’s quashing of the NK Collins Industries’ conviction from a fatality in 2007, and considered the implications for future prosecutions in Queensland.
To provide context to this discussion, Jamie outlined that the Kirk case related to the NSW High Court finding that WorkCover NSW failed to identify measures hobby farmer Graeme Kirk could have taken to prevent a workplace fatality, and quashed Mr Kirk’s OHS conviction.
NK Collins Industries was convicted over a workplace death of an employee when the employee was crushed and killed while felling dead trees. The employer was subsequently found guilty of breaching the (now repealed) Queensland Workplace Health and Safety Act 1995, in failing to ensure the health and safety of its workers.
Collins appealed, and successfully argued that the High Court Kirk case applies to OHS prosecutions conducted in Queensland asserting that Workplace Health and Safety Queensland “failed to disclose the acts or omissions which were alleged to constitute the offence“.
The Court of Appeal Justices (Holmes, Fraser and Wilson) found it was “incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from the risk”. Justice Holmes detailed that “The contravention in this case was identified as the failure to discharge the obligation to ensure that the workplace health and safety of [NK Collins’] workers was not affected by the conduct of its business or undertaking”. This is a direct reflection of Section 28 of the previous Workplace Health & Safety Act 1995.
Jamie McPherson indicated that this raises a general problem of how an employer is to defend a charge when there is more than one relevant code of practice or where a code of practice states more than one measure for dealing with a specific risk.
The Queensland Court of Appeal decision has significant ramifications for how WHS prosecutions are conducted. It will now be necessary for the prosecutors to adequately particularise alleged acts or omissions in identifying the breach. In so doing, the prosecutors will have only one opportunity to detail the particulars in order to create a successful prosecution.
In confirming that the principles of the Kirk case apply to the Collins case and therefore that the prosecution needs to identify the particulars of the breach, it establishes that prosecutions under the harmonised WHS Legislation need to say specifically that the PCBU should have undertaken actions x, y and z.
The next SNG meeting is earmarked for November.
More information on the Safety Networking Group can be found on our website. Senior safety professionals contemplating attending meetings in Brisbane can contact QRMC to express an interest.
