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.

Safety Alert for Wineries

Alena Titterton writes:

In the wake of the tragic fatalities in the Hunter Valley wine region which occurred on January 17 2008, the WorkCover Authority of New South Wales has issued a safety alert for fire and explosion risks at wineries.

The Safety Alert highlights the need for risk assessments to be carried out that identify the hazards associated with winery operations. As the activities of wineries necessitate the storage of flammable liquids, they are highly hazardous workplaces. In such circumstances, care must be taken with likely ignition sources such as welding, grinding and other hot work, which could cause flammable vapours to ignite.

The WorkCover Safety Alert provides the following useful tips for minimising the risk of fire and explosion. As part of the risk management plan for the workplace, all wineries should ensure that:

  • flammable liquids are stored in compliant containers and facilities according to AS 1940:2004;
  • flammable liquids storage areas are clearly marked with warnings and signs (Hazchem) and containers and tanks are clearly and correctly labelled;
  • adequate natural cross flow ventilation is maintained in buildings that involve storage or processing of flammable liquids;
  • any hot work and smoking restriction zones are clearly identified, sign posted and strictly enforced, including zones restricting mechanical grinding and cutting and other ignition sources. See AS 2430.3.3:2004;
  • hot work such as welding or oxy-cutting, is done according to AS1674.1:1997 which lists comprehensive fire and explosion precautions;
  • flammable or toxic materials have been properly removed before work is carried out on an empty container or vessel;
  • all decanting of flammable liquids is carried out in a well ventilated area;
  • transferring of flammable liquids from storage to the point of use is carried out to avoid spillage;
  • the area around storage and processing is kept free of materials that burn;
  • fire safety equipment is provided and maintained, eg alarm systems, fire extinguishers, hydrants and hoses and fire blankets; and
  • workers are instructed and trained in the storage and handling of dangerous goods, the emergency plan and the use of safety equipment.

To read the Safety Alert, please click here.

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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