Under the Occupational Health and Safety Act Powercoal, then owners of the Awaba mine in New South Wales, were found guilty of offences related to the 1998 death of miner Barry Edwards, killed when the roof of the mine collapsed.
Centennial Coal now owns Awaba and lodged an application, on behalf of Powercoal, for the guilty findings to be quashed and the case brought before the NSW Court of Appeal. Alternately they asked to have sentencing submissions – scheduled for today, February 4 - delayed by the IRC pending the outcome of the Court of Appeal hearing.
Centennial contends the IRC lacked jurisdiction to hear and determine proceedings for an offence under the Occupational Health and Safety Act 1983.
“There is no merit whatsoever in such applications; nothing we might determine in relation to sentences would have any implications for the jurisdictional arguments foreshadowed in the respondents' summonses in the Court of Appeal,” the full bench of the IRC ruled on Wednesday.
The IRC went on to suggest Centennial was being opportunistic in challenging the Commission's occupational health and safety jurisdiction.
“The Occupational Health and Safety Act is an important piece of social legislation. Its purpose is to protect workers from workplace death or injury. It would be contrary to the public interest to create a hiatus for an indeterminate period in the hearing and determination of prosecutions,” the IRC said.
Extraordinarily, Powercoal and mine manager Peter Foster were first acquitted then found guilty on appeal but, under s 179 of the Industrial Relations Act, had no further opportunity to appeal. The result is that Foster had no opportunity to mount a defence.
Centennial lawyers argued it would be "manifestly unjust" to allow guilty findings to stand if there were errors of law committed by the Commission.
The IRC accused Centennial of trying to create “a legal artifice” to avoid the legislative intention of the OH&S Act, adding that lawyers had not raised the jurisdictional issue earlier.
“Their failure to prosecute the jurisdictional issues in a timely way is another factor against the granting of the motions,” the IRC said.
The IRC refused Centennial’s application saying sentencing submissions would be heard as listed on February 4.
The NSW Minerals Council weighed into the debate too, saying the way penalties were currently being applied under the Act did not make workplaces safer, but instead, "risked degeneration into inappropriate retribution for a human tragedy.”
“But simply by their occupation, more than 300,000 managers and directors across the state of NSW currently face different and more draconian judicial standards than anyone else in our society. This is not only unjust, it is fundamentally unfair," NSWMC chief executive Dr Nicole Williams said.
