EMPLOYERS in NSW are demanding a royal commission
into the state's workplace safety laws following a scathing High Court ruling
last week that found the application of the laws was oppressive and
And bosses who have suffered a similar fate to that of
hobby farmer Graeme Kirk, whose appeal to the High Court led to the
landmark ruling, are seeking restitution from the state's workplace safety
Rockdale Beef, an abattoir at Yanca in the Riverina district of southeast
NSW, has written to WorkCover, demanding a refund of more than $200,000 in
fines levied after accidents in 2001 and 2003. It is also demanding
WorkCover desist in its demands for a further $320,000 in costs.
Both accidents involved independent contractors who were not employees of
The first involved a worker injured by a machine in the boning room and
resulted in a $100,000 fine after WorkCover appealed against an initial
acquittal of Rockdale in the Industrial Relations Court.
In the second accident, a truckdriver making a delivery to Rockdale fell
from his truck, breaking his neck.
In laying charges against Rockdale, WorkCover did not specify what the
company could or should have done to prevent the accident - the feature of
Mr Kirk's case the High Court found repellent. In its decision, the High
Court cleared Mr Kirk of responsibility for the death of his manager in a
vehicle accident on his property at Picton, southwest of Sydney.
Mr Kirk had no farming experience and left the running of his farm to his
manager and friend Graham Palmer.
However, Mr Kirk and his company were found guilty of failing to provide a
safe workplace and fined $121,000 after Palmer was killed in 2001 while
incorrectly moving heavy steel using an all-terrain vehicle.
Like Rockdale Beef, Mr Kirk fell foul of the absolute duty of care and
"reverse onus of proof" that applies to employers under workplace safety
laws in NSW.
But the High Court found WorkCover had to specify what Mr Kirk had done
wrong and how he could have acted in order to prevent the accident.
A WorkCover spokesperson said yesterday the agency was "reviewing
prosecutions currently before the courts to determine whether any
amendments to the charges are required, following the Kirk decision".
But "review of past convictions is a matter for the courts".
Garry Brack, from the Australian Federation of Employers and Industries,
said it was too late for most employers burned by WorkCover to use the Kirk
decision as grounds for appeal: "A royal commission is the only way (to)
overcome legal limitations and examine those past cases."
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