Occupational Health and Safety Act decision to impact prosecutions of employers.

The case concerned the prosecution of a hobby farm owner, company and related director following the death of the farm’s managing employee whose all terrain vehicle overturned when the employee elected to drive down a steep slope instead of remaining on the purpose built formed road.

Importantly, the employee possessed optimum skill and experience in relation to driving all terrain vehicles, more so than the parties prosecuted. It was held that “Driving straight down the side of a hill instead of on a formed and safe road was inexplicably reckless.” Accordingly, given the carelessness displayed by an experienced employee, there was little further that could have been done by the employer to prevent the fatality. The decision should have a bearing on future prosecutions of employers where well trained employees engage in reckless behaviour.

The judgment was also particularly scathing of the vague prosecutions commenced by workplace safety authorities. Traditionally, these authorities would broadly prosecute employers for general breaches of applicable occupational health and safety legislation without giving any relevant details of the alleged offences. This would often result in the employer being denied the ability to properly establish a defence to the prosecution. The decision has escalated the obligation on the part of the workplace safety authorities to specifically identify the act or omission on the part of the employer which gave rise to the offence and what reasonably practical measures the employer could have implemented to prevent the occurrence.

This case has overturned a decision of the NSW Court of Appeal and a long line of authorities in that State. It will have greater impact in NSW and Queensland, but should also a significant impact in other Australian States including Victoria. The Federal Government and the States have recently agreed to introduce uniform OH&S laws.

Harwood Andrews Lawyers workplace relations team has extensive experience in representing clients in the complicated area of occupational health and safety prosecutions. Our team is lead by Jim Rutherford, an accredited specialist in workplace relations law together with, Rohan Kux and Melissa Whelan. Our services are not limited to the defence of prosecutions. We can assist employers to understand their own rights and obligations and those of others who come into the workplace such as union officials and workplace inspectors. Our approach is to work in consultation with you to ensure that your business benefits from both legal and practical workplace safety advice.

If you would like further information about Harwood Andrews Lawyers or our workplace relations services, including occupational health and safely, please contact Jim Rutherford on 03 5225 5225.