They face jail even if prosecutors fail to say how they could have avoided an accident, after a controversial decision handed down by the state's Industrial Court this week.

Lawyers and company directors had hoped the High Court's landmark decision to clear hobby farmer Graeme Kirk earlier this year over the death of his manager in a vehicle accident would give employers relief from the draconian OHS laws in NSW and the harsh way they had been applied.

Some fear the NSW Industrial Court's decision in Morrison v Chevalley on Tuesday shows it is either not properly applying the Kirk case or is applying it so narrowly it denies due process.

Hunter Quarries director and chairman Hilton Grugeon and managing director Grahame Chevalley failed in their legal bid to have their charges over the death of truck driver Darren Smith quashed by the court.

Smith, a father of two, was killed when his truck went over an embankment and rolled at a quarry in June 2005.

The prosecutor alleged Hunter Quarries failed to ensure the haul road and truck were safe, and failed to provide proper training, supervision and a safe system of work for its employees.

Unlike in other states, in NSW employers have an absolute duty of care, rather than a duty to do whatever is reasonable to prevent accidents. Employers are assumed to be guilty if an accident occurs.

In the case of Kirk, the High Court found the way the laws had been applied in NSW was unjust, oppressive and absurd. It said even though a reverse onus of proof applied, prosecutors still had to specify exactly what measures an employer should have taken to avoid the risk of an accident.

Barrister Arthur Moses SC argued in the Industrial Court this principle applied not just to the company but also to its directors.

"The fact somebody is a director does not mean that they are automatically in a position to influence the conduct of the corporation," Mr Moses told the court.

The Industrial Court rejected this argument, ruling that once Hunter Quarries had pleaded guilty, Mr Grugeon and Mr Chevalley, as directors, could be taken to have breached the law.

It also rejected Mr Moses's argument that reversing the onus of proof where a defendant faced imprisonment offended the judicial process.

"We should add that the OHS Act provides for a maximum term of imprisonment of two years and is at the low end of penalties in the criminal calendar," the court said.

Australian Federation of Employers and Industries chief executive Garry Brack said it was "repugnant" the onus of proof could be reversed so someone was deemed guilty before they went to court. He hoped the decision would go before the High Court.

Norton Rose partner Michael Tooma said he believed the Industrial Court's reasoning was sound. He said the problem was instead the draconian NSW law.

source the australia