It’s not often health and safety law is big news – but it has been in Australia this month, as a result of the judgment of the High Court of Australia in the Kirk case.
Graeme Kirk was director of a company that owned a farm in New South Wales, but left the management to an experienced farmer, Graham Palmer. One day Mr. Palmer was transporting some steel on a off-road vehicle, when for no reason anyone can explain he drove the vehicle off the gravel farm road, and down a steep hill. The vehicle turned over – and Mr. Palmer was killed. As a result, WorkCover (the Australian equivalent of our Health and Safety Executive) prosecuted Graeme Kirk, who ended up being convicted under New South Wales’s Occupational Health and Safety Act 1983. Section 15(1) of that Act states that
Every employer shall ensure the health, safety and welfare at work of all the employer’s employees
while section 53 provides defences:
It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:
(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
Stopping at this point, it’s difficult to see what any employer can do to stop an experienced worker from literally going off-piste and, in a moment of uncharacteristic madness, taking an unacceptable risk at work. What was Mr. Kirk supposed to do? How could any training or workplace rules have prevented the accident? Surely, you’d think, one of the other of the section 53 defences would have helped Mr. Kirk – but no.
The Industrial Court saw the section 15(1) duty as absolute in nature. An offence under that section was charged without any real identification of anything Mr. Kirk or his company could or should have done to prevent the accident – the charges skirted that issue by referring vaguely to inadequate training and an unsafe system of work, without saying what a safe system might have consisted of, or what training could have prevented the accident. Even though it was subject to the section 53 defences, viewing section 15(1) as absolute distorted the Industrial Court’s approach, as the High Court of Australia explains (para. 38)
A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability.
In practice, therefore, section 15(1) was applied as though it were absolute, so that an employer would be guilty of an offence almost automatically whenever an accident happened.
The High Court of Australia has now roundly criticised that approach, and has quashed Mr. Kirk’s conviction. Charges under section 15 must specify what risks the employer should have addressed and how he or she has failed to reduce or eliminate those risks. ABC Radio National interviewed Mr. Kirk earlier this month on its excellent show Counterpoint – you can read the transcript and may still me able to listen to the interview here.
The World Socialist Website sees this as a victory for capitalism at the expense of workers’ health and safety – but I disagree. I’m not the sort of person who shares the Fox view of law according to which employers should probably be released from all and any legal burdens. But I do think interpreting the legislation in such a way as to impose criminal liability on someone without any factual basis for holding them responsible for Mr. Palmer’s death was oppressive. Health and safety at work is a serious matter: it should not be brought into disrepute in this way, and laws aiming at securing it should not be used as as instruments of arbitrary oppression.
Nor do I think imposing absolute liability was good policy. If employers are faced with a reality in which no amount of sensibly-targeted expenditure on training and equipment can hold them safe from litigation, then it becomes economically irrational to invest in safety. Instead, you’d be better off buying insurance to enable you to meet legal bills and fines in case one of your workers is injured when something happens that you could never control. Absolute liability is the enemy of health and safety, in truth. Law and regulation ought to focus on practical precautions – on what employers can and should do now to reduce risk – not on the steamroller of perfect legalistic hindsight, a blunter and less effective way of trying to improve workplace standards.
Which is why I’m glad that a few years ago the UK fought and won in the European Court of Justice when the European Commission argued for an “absolute” interpretation of the equivalent EU health and safety legislation.
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