A landmark decision by the High Court this week has reinstated the concept of "reasonable practicability" into New South Wales' OHS breach disputes.
The ruling in favour of Graeme Joseph Kirk and his company Kirk Group Holdings which was up against the NSW Industrial Relations Commission and OHS watchdog, WorkCover, has recast the terms of engagement for all NSW employers.
The decision has reintroduced "reasonable practicability" into OHS breach disputes - a concept abandoned in the 1980s shortly after its introduction to Australia.
Broadly speaking, when an employer in NSW had been accused of a legislated OHS breach, there was an onus it to prove its innocence.
In future the regulator will need to identify the risk that the employer needed to address, and outline how it could have mitigated against it, thereby providing a basis upon which employers may argue what was reasonably practicable.
The ACCI has welcomed the ruling as "sensible".
“Oppressive OHS laws like this have sapped the confidence of employers in the legal system, and removed incentives for OHS compliance. Today's decision should go a long way to restoring that confidence so long as it is respected by the NSW Government, its parliament and the trade union movement.”