This is a decision of the full bench of the NSW Industrial Relations Commission.
It concerns a prosecution pursuant to s.8(1) of the Occupational Health and Safety Act 2000 (NSW).
Morrison was an inspector of Worksafe NSW. He charged Hunter Quarries Pty Ltd and three directors of the corporate defendant for failing to ensure the health and safety of Darren Smith. In particular Smith had been a driver of a large truck which had rolled down an embankment and died while performing work for Hunter Quarries.
The corporate defendant Hunter Quarries Pty Ltd and a director of Hunter Quarries, Mr Badior, pleaded guilty. The trial of Mr Chevalley and Mr Grugeon, two other directors, was then set down. Prior to that trial coming on the decision in Kirk in the Industrial Relations Commission of New South Wales was heard and determined by the High Court.
After that was handed down Mr Grugeon and Mr Chevalley bought applications that the charges against them should be dismissed on the grounds that the charges did not plead or particularise the essential elements necessary to sustain the charges and further that the charges did not particularise those acts which the company should have taken in order to comply with its obligations under the Act. In short, what were the practicable steps that they could have taken as directors to avoid breaching the Act?
There was also a further challenge particularly by Counsel for Mr Chevalley as to whether or not the charges contravened his basic constitutional rights. The court found that the charges against the directors were properly particularised and further found that it was not necessary within the charge itself to particularise those acts or omissions which would found defences under s.26 of the Act. The court also dismissed the argument about the constitutionality of the charges.