Successful OH&S defences .... they exist!

You could be forgiven for thinking you cannot successfully defend an OH&S prosecution. Employers have onerous obligations under occupational health & safety legislation to ensure the health and safety of persons, including employees, at their place of work.

However, several recent decisions make it clear employers can successfully defend an OH&S prosecution in some situations. The employers in these cases were successful because they had developed, disseminated and maintained a system of workplace safety which properly addressed the risks which were the subject of the prosecutions.

The statutory defence

The Occupational Health & Safety Act 2000 provides two limited defences to any charge if the employer can prove:

• it was not reasonably practicable to comply with the Act; or

• the incident was due to causes over which the employer had no control and against the happening of which was impracticable to make provision.

Inexplicable intervening action

The full bench of the Industrial Relations Commission has recently handed down a decision in Inspector Kilpatrick v Jae My Pty Limited. Bartier Perry acted for the defendant in this case.

Jae My had reached an agreement with Woolworths to clean its Kotara store, but had arranged for the work to be done by a sub-contractor, Michael Kim. Jae My had no real presence on site. Kang Soon Lee was an employee of Kim. In the course of her cleaning duties, she came across a pallet jack. A Woolworths employee had left the keys in the pallet jack. Lee tried to move the pallet jack but only succeeded in driving it over the edge of the loading dock, causing her injuries.

Jae My was charged with breach of s16 of the Occupational Health and Safety Act 1983. It was alleged Jae My had failed to ensure the health and safety of a non-employee at Jae My's place of work.

Chief Industrial Magistrate Miller dismissed the summons, not being satisfied that Jae My had failed to provide or maintain a safe system of work. He thought that the actions of Lee were "inexplicable" and were not reasonably foreseeable.

WorkCover appealed to the Full Bench of the Industrial Relations Commission.

In its judgement the Full Bench noted that systems of work do not have to be documented and that the requirements of safety depend upon the nature and circumstances of the work in question. Here, as Lee had been told not to touch Woolworths' plant or merchandise, and not to move any equipment, it was difficult to see what more Jae My could have done to ensure a safe system.

The Full Court noted that examination of an accident might show that a defendant failed to maintain a safety system. However, that was not established in this case.

The Full Court found that the dismissal of the charge by the CIM, who found the prosecution had failed to establish a prima facie case against Jai My, did not involve an error of principle or law. The Full Court also noted that the Chief Industrial Magistrate understandably doubted the credit of Lee as a witness, when she disputed the video evidence of the accident which was shown to the Court. WorkCover lost the appeal.

As with all cases, the decision partly turned on its facts. However, it is notable that the Full Bench clearly considered that the system of work put in place to manage the risks faced by Lee was adequate, even though that system was not in writing.

Another successful defence...

Australian Inland Energy & Water (AIEW) was successful in late 2003 in defending a charge that it had failed to ensure the health, safety and welfare of its employees. One of its employees suffered severe burns while conducting low voltage testing.

At the time of the incident, AIEW had documented hazard and risk assessment procedures. The injured employee was an experienced electrician and had undertaken a hazard and risk assessment before the incident.

The NSW Industrial Relations Commission found that AIEW had not breached it's obligations under the OHS legislation. AIEW presented evidence to the Commission that it had:

• established a comprehensive system of work that required the regular assessment of hazards;

• been proactive in implementing that system;

• developed a culture where assessment of hazards was mandatory;

• routinely trained all staff on the assessment and identification of hazards; and

• had a system of regularly auditing compliance with its safety requirements.

In the Commission's view AIEW had put in place a safe system of work. It was not reasonably foreseeable that an experienced employee would have departed from that system and put himself at risk. The charges against AIEW were dismissed.

Conclusion

An employer who can show it has taken positive, proactive and effective steps to protect the health and safety of employees, and non-employees, against risks associated with a particular job or task has good prospects of successfully defending an OH&S prosecution.

That requires a comprehensive and demonstrated safe system of work addressing the job in question. An employer should:

• regularly consult with its staff about safety,

• document a safe work system which includes hazard identification and risk assessment,

• routinely train all staff on relevant matters related to safety,

• review practices,

• have adequate supervision in place and

• conduct regular audits of its systems.