Case Study: NSW Occupational Law

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[. . .] Regardless, the blatant rules of evidence violation by the industrial court would have invalidated the decision regardless. However, if one considers what would have happened had the court not made such an error, then the conviction may have held up on later review and the lack of a tangible reason for conviction alone may not have persuaded the upper court to intercede. The real problem is the fact that the NSW regulations seem to place all responsibility for employee safety on the employer and none on the employee and that is simply not logical or justifiable. In the case of Kirk, it theoretically could have been possible for someone to notice what Kirk was trying to do and urging him to stop before it was too late. However, no one apparently told Kirk to do what he did, he had another option and no one else seems to know why Kirk did it. As such, to ascribe what happened to anything else other than employee self-negligence is odd and unprovable.

The solution to the problem above is to change the regulations to shift at least some of the burden to the employee rather than making the employer solely responsible for the injury and harm to employees. Obviously, the majority of the burden should still rest on the employer and this should especially hold true with jobs that are hazardous and dangerous. For example, personal protection equipment and the proper tools should be made and kept available. Employers should verify and ensure that equipment is always used and send employees away from the work area until or unless that changes. Employers that are unable or unwilling to pull this off should be held accountable.

On the other hand, employers who exercise their due diligence in supervising, screening and evaluating employees can still make incorrect assessments due to no fault of their own and/or because they had no legal way of finding out about the facts or traits that could reasonably lead to a negative outcome. Even further, even when those facts are known it can still be illegal to be proactive and lodge a pre-emptive action when the negative event that is sought to be prevented has not already occurred. There are exceptions such as sexual harassment and threats as there are clear legal allowances for punishing or firing employees for those reasons. On the other hand, an employee who is a daredevil outside of work may very well keep on the straight and narrow when operating dangerous equipment at the workplace. Laws and regulations that are kept open for discretion and exceptions are all well and good but ignoring the undeniable rules of personal responsibility and accountability and how no one, employers and employees alike, should be exempted from that is something that the law should reflect. It is clear that the employer has a higher burden as they are the owners and operators of the business not unlike how a homeowner is often responsible for events and accidents that happen under the roof. However, events that are not perpetrated or allowed to happen by the homeowner would typically be exempt and employers should be treated the same way.

Conclusion

The propensity for legal eagles and legislators to fault employees first and employees second (if ever) is disturbing. Second, for the Industrial Court and their decisions to be beyond review except in procedural mistakes of high gravity raises an eyebrow or two. However, if the jurisdiction and perspective of the court and its decisions were properly framed, a lot of those concerns could be mitigated or even eliminated in many to most cases. Corporate responsibility is a real concept but so is personal responsibility and relegating employers to parental status is irrational and is a burden to employers that they should not have to endure.

References

Foster, N. (2010). General risks or specific measures? The High Court decision in Kirk.

Australian Journal of Labour Law, 23(3), pp.230-239.

Kirk v. Industrial Relations Commission of New South Wales. (2014). Bourke's Criminal

Law News Victoria, 10(2), pp.1-10.

Nash, S. (2011). Characterising Development in New South Wales. Local Government

Reporter, 9(9), pp.224-226.

Reeve, B. And McCallum, R. (2011). The Scope of Employer's Responsibilities under

Australian Occupational Health and Safety Legislation. Australian Journal of Labour

Law, 24(3), p.189.

Standards Australia, (2014). Risk Management: Principles… [END OF PREVIEW]

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NSW Occupational Law.  (2014, August 1).  Retrieved April 19, 2019, from https://www.essaytown.com/subjects/paper/nsw-occupational-law-case-study/1938377

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"NSW Occupational Law."  Essaytown.com.  August 1, 2014.  Accessed April 19, 2019.
https://www.essaytown.com/subjects/paper/nsw-occupational-law-case-study/1938377.