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Liability of directors for OH&S breaches.


A recent case in the New South Wales Industrial Relations Commission clarified how directors and/or managers may be prosecuted under the Occupational Health and Safety Act.

A quarry operator was charged with contravening s. 8(1) of the Occupational Health and Safety Act 2000 (NSW).  It pleaded guilty.  Its quarry manager, chairman of directors and managing director were also charged.   Under the Act, where a corporation contravenes the Act or the Regulation, every director and manager is also presumed to have committed the contravention, unless they make out a due diligence defence.  The directors asked that the charges against them be struck out or stayed because the charge did not adequately describe (in the way required by the High Court in Kirk v Industrial Relations Commission) how the acts or omissions of the corporation caused a risk to health and safety in contravention of the Act.    The Full Bench of the IRC found the charges against the directors were properly framed.

Any charge against the directors must describe how the corporation is said to have contravened the Act.   The prosecutor must prove those acts or omissions.   In addition, the charge must allege that the defendant is a director or other person concerned in the management of the corporation.  It’s up to the director/manager to prove that he was in no position to control or influence those act or omissions and/or identify the steps taken to prevent the contravention (the so-called “due diligence” defence).  The prosecutor is not obliged to describe what steps the directors/managers failed to take.   In answer to any charge, the onus on the directors and/or managers to prove, that they were unable to influence the conduct of the corporation in relation to its contravention of the provision, or that, in fact, they did everything they could to prevent the contravention.

The Full Bench found the statutory presumption does not usurp a judicial function (in breach of the Constitution) because:

  • the presumption of the defendant’s guilt is rebuttable,
  • it “does not require the court to act other than impartially”,
  • it “does not direct the court as to the manner in which it must decide the case”,
  • it “does not prevent [the directors] putting a case in defence” and
  • it “does not require the court to perform a non-judicial function”.

Read the decision in Morrison v Chevalley [2010] NSWIRComm 116

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