The High Court was scathing in its criticism of the NSW regulator Workcover, which prosecuted Picton farmer Graeme Kirk after his farm manager rolled a quad bike and was killed while talking a short cut down a steep hill.
“It is absurd to have prosecuted the owner of a farm and its principal on the ground that the principal had failed properly to ensure the health, safety and welfare of his manager, who was a man of optimum skill and experience – skill and experience much greater than his own – and a man whose conduct in driving straight down the side of a hill instead of on a formed and safe road was inexplicably reckless,” the judgement said.
The High Court also found the NSW Industrial Court had breached evidence laws by allowing the defendant, Kirk, to be called as a witness for the prosecution.
The NSW workplace safety laws are due to be replaced in two years by new legislation intended to harmonise Australia’s state-based occupational health and safety regimes.
The harmonised legislation has been developed by federal body Safe Work Australia under the guidance of the state and federal workplace relations ministers.
The model act was released in December last year and model regulations are now being developed.
Unlike the absolute duty of care demanded by OHS legislation in NSW, the model act requires that employers “eliminate risks to health and safety, so far as is reasonably practicable”, which is the test already applied in most other states and territories.
Unions oppose the harmonised law, arguing that the absolute duty is a higher standard which leads to safer workplaces – a claim employer groups reject, pointing to statistics that show NSW has an inferior workplace safety record to other states.
The effect of the NSW laws was underlined in a submission by construction contractor Baulderstone to a review panel set up in 2008 to advise the federal government on the harmonisation process.
“We ourselves have had supervisors, managers and young engineers with leadership potential state openly that they are reluctant to accept people management responsibility in NSW because of the feared consequences of the OHS Act,” Baulderstone’s submission said.