Abattoir succeeds in limiting OHS charge
Major NSW abattoir group Rockdale Beef has succeeded in limiting the types of offences NSW WorkCover can charge it with.
Rockdale controls a large abattoir at Yanco in NSW, with employees working on the site employed by a third party company. For this reason, WorkCover brought charges against it under s8 (employers must ensure safety on non-employees in their workplace) and s10 (controllers of a premises used as a workplace must ensure safety).
The charges related to injuries received by a worker on the site whose arm was caught in the nip-point of an unguarded machine in Rockdale's boning room. Rockdale challenged WorkCover's construction of the charges, claiming the order failed to disclose an offence under s10. Counsel for Rockdale argued that the charge order was invalid because it alleged breaches of both s8 and s10 in the same charge.
NSW Industrial Commission Justice Monika Schmidt rejected most of Rockdale's arguments, but agreed that offences under s8 and s10 could not be charged as the same offence. However, while Justice Schmidt rejected the s10 offence, she declined to dismiss the entire charge as sought by Rockdale. She ruled that WorkCover could proceed with the s8 offence as charged.
The Rockdale case also addressed some key issues on the time limit in which charges must be brought for safety breaches.
Counsel for Rockdale argued that the two-year time limit applied to the actual issuing of a charge order, while WorkCover submitted that the time limit applied to the initiation of proceedings against a defendant. Justice Schmidt said a key difference between the NSW Supreme Court and the Industrial Commission in Court session is that Supreme Court proceedings are commenced by a summons and proceedings in the Commission are commenced by an application for an order. She ruled that the time limit applied to the filling of the application for an order, and hence the action was in time.
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