Update on Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon

Sam Witton writes:

At the resumption of proceedings (previously reported on here) on Friday 9 April 2010, the submission in reply of the prosecutor, WorkCover NSW, that appeared to garner the most interest from the bench was the proposition that section 170 of the Industrial Relations Act 1996 (NSW) (IR Act) would, even if the charges against Mr Chevalley and Mr Grugeon were incorrectly pleaded, allow the IRC the power to amend the charge at any stage of the proceedings “in the interest of justice” which would, necessarily, include the interests of the community.

It was submitted that the reason why the prosecution against Kirk failed was because the case proceeded to conviction before the errors in the charge were realised. Had the charge been amended at some stage prior to conviction, the prosecution would have succeeded.

In addition, it was submitted by the prosecution that section 16 of the Criminal Procedure Act 1986 (NSW) (CP Act) sets out the legislative scheme to ensure that charges are not deemed invalid for want of matters to be proved or implied. It may well be the case therefore that the IRC will find a way through cases that have commenced by using its powers under the IR Act and the CP Act to allow charges to be amended and for the charged to be informed of the measures they could have taken at any stage up to the conviction of the defendant.

Submissions in reply were adjourned until 26 May 2010.

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First cabs off the rank: Appeals flowing from Kirk

Sam Witton writes:

Following the High Court decision of Kirk[1] handed down in early February, the return from the Easter break has witnessed hearings in the first of the cases seeking to redraw the accepted lines of occupational health and safety prosecutions in NSW.

Inspector Hamilton v John Holland Pty Ltd

On Tuesday 6 April 2010, the full bench of the NSW Industrial Relations Commission (IRC) sat to hear Inspector Hamilton v John Holland Pty Ltd. The case arises from John Holland’s involvement with the collapse of the Lane Cove tunnel on Sydney’s M2.

Tuesday’s hearing is the latest in a long running battle for the construction group. In a previous outing, John Holland (JH) argued before the High Court that the NSW IRC did not have jurisdiction on the grounds that JH had become a non-Commonwealth licensee[2] in the period after the alleged breach of the Occupational Health and Safety Act 2000 (NSW) (NSW OHS Act). The High Court ruled that for breaches committed by JH prior to it becoming a non-Commonwealth licensee the NSW IRC did indeed have jurisdiction.[3]

JH’s Senior Counsel, Garry Hatcher made submissions in the IRC this week that the charge against JH fails to meet the requirements set down by the High Court in Kirk in that the essential legal elements of the charge do not specify the measures that could have been taken by JH to ensure that they did not contravene the NSW OHS Act. In failing to include the measures that JH should have taken within the charge, Hatcher SC submitted that it was not possible for JH to plead to the charge as it did not have the requisite information to enable it to defend the charge.

Measures that the prosecutor WorkCover NSW stated should have been taken by JH had been included in the particulars of the charge.

Senior Counsel for the prosecutor, WorkCover NSW, John Agius submitted that the Kirk decision should be read as requiring the measures that the defendant could have taken to avoid a breach of the NSW OHS Act as being within the “statement of offence” taken as a whole. It was wrong, Agius SC submitted, to draw an artificial line between the charging provision and the particulars of the charge. The artificial line would have the charging provision sitting “above the line” with the particulars of the charge “below the line”. Agius SC submitted that so long as the measures that the defendant could have taken were contained within the particulars, the statement of the offences met the requirements laid down by the High Court in Kirk: that is, to identify the act or omission of the defendant and the measures that should have been taken but which were not taken by the defendant. Agius SC submitted that the statement of offence against JH exemplified the position that was to be taken post Kirk.

The bench has reserved its decision.

Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon

Perhaps more interestingly, on Thursday 8 April 2010, the full bench was summoned again to hear Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon. The defendants, directors of Hunter Quarries, submitted that the charges laid against them under section 26 of the NSW OHS Act failed to engage the jurisdiction of the NSW IRC in so far as the charge against them failed to specify the measures that could have been taken to avoid a breach of the NSW OHS Act. It was insufficient, Arthur Moses SC submitted, for the prosecution to be able to deem the contravention of the NSW OHS Act against the directors (as section 26 of the NSW OHS Act operates) unless the charge against the directors specified the measures that they could have taken in their capacity as directors to prevent the contravention of the NSW OHS Act.

The Court is due to resume on 9 April 2010 for submissions from the prosecutor in reply.

Both decisions will be eagerly awaited as the NSW IRC grapples to redefine the way in which charges brought by WorkCover NSW are drafted and attempts to apply the statement of principle enunciated in Kirk into a practical application in the NSW IRC.

[1] Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1.

[2] See section 5 of the Occupational Health and Safety Act 1991 (Cth).

[3] See John Holland Pty Ltd v Inspector Nathan Hamilton [2009] HCA 46.

Upcoming Safety Event

Alena Titterton writes:

“Implementing A Legal Due Diligence Framework For Your Organisation” will be the topic of a session presented by Michael Tooma and Holly Howison at the Safety Institute of Australia (NSW Division) Inc Safety Conference 2007 on 25 October 2007.

Click here to download the program.

Importance of a Legal Due Diligence Framework

Holly Howison writes:

Occupational health and safety (OHS) legislation in all states and territories of Australia imposes strict obligations on entities and their directors/managers to ensure that people are not exposed to risks of harm arising from their work activities. The Board of Directors of each entity needs to ensure compliance by their relevant entity with these legal obligations. Consequently, the Board of Directors needs to be actively involved in the development and implementation of OHS management systems and to establish processes and procedures that allow them to satisfy their function of overseeing compliance with OHS legal obligations via a Due Diligence Framework.

A proposed Due Diligence Framework seeks to achieve compliance with the OHS legislation by:

  • Setting standards for the occupational health and safety management system(s) of the entity as a whole, or for each of the entity’s divisions;
  • Setting standards in relation to resourcing (including allocation of designated OHS personnel) and training requirements (including training in the OHS management system at least annually, induction training on OHS risks and obligations and refresher training on OHS risks and obligations on an annual basis), to ensure the adequate implementation of those systems;
  • Providing a mechanism for ongoing auditing and review;
  • Setting minimum reporting requirements by relevant departments/divisions to the Board of Directors on the performance of the relevant management system and OHS performance via monthly board reports, OHS statistics reports, audit summary reports; and
  • Developing incident response procedures for critical incidents which allows the Board of Directors’ members to monitor the response and the preparation of significant OHS incident notification reports to the Board of Directors.

A Due Diligence Framework seeks to ensure that an organisation’s occupational health and safety management system(s) is effectively implemented and continually monitored and improved to achieve the highest level of OHS performance and ongoing legal compliance. The Due Diligence Framework will also ensure that information in relation to OHS performance and compliance is provided to and considered by the directors/managers of the relevant organisation. Essentially the purpose of a Due Diligence Framework is to enhance the ability of members of a Board and senior management teams to establish that they exercised all due diligence to systematically ensure compliance by an organisation of its OHS legal obligations.

Charges Against Company Directors Dismissed in Two Cases in the Industrial Court of New South Wales

Katherine Morris and Simone Alphonse write:

In two recent cases, the Industrial Court of New South Wales has dismissed charges against directors for breaches of the Occupational Health and Safety Act 2000 (NSW). In one case, the directors successfully established the defence of not being in a position to influence the conduct of the corporation. In the other case, the Court exercised its discretion under the Crimes (Sentencing Procedure) Act 1999 (NSW) after finding that the director put in place a comprehensive safety plan and took all steps as he saw necessary to ensure that safety matters were properly addressed.

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