Citation: SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540
Court: District Court of New South Wales
Date: 8 November 2022
Judge: Russell SC DCJ
Background
SafeWork NSW filed four summonses on 6 October 2021, each charging the defendant employer with engaging in discriminatory conduct for a prohibited reason under s 104(1) of the Work Health and Safety Act 2011 (NSW). The charges all concerned conduct towards a health and safety representative (HSR) employed to clean and service aircraft at Sydney International Airport in early 2020, during the period when COVID-19 was emerging as a workplace concern.
The four summonses fell into two pairs. The first pair, the "Directions" summonses, alleged that the employer stood down the HSR on 2 February 2020 and threatened disciplinary action on 7 February 2020, with the dominant reason for that conduct being that he had exercised his power as an HSR to direct workers to cease unsafe work under s 85 of the Act. The second pair, the "Issues and Concerns" summonses, concerned the same acts on the same dates but alleged the dominant reason was that the HSR had raised concerns about COVID-19 risk with other workers.
The employer filed a notice of motion seeking a stay of proceedings, contending that the prosecutor should be compelled to elect which two summonses to withdraw. The employer argued, in essence, that the charges were duplicates and could not properly be brought in the alternative.
Legal Issues
- Whether the prosecutor was entitled to bring two sets of charges arising from the same conduct in the alternative, without withdrawing two of the four summonses.
- Whether the "Directions" summonses and the "Issues and Concerns" summonses charged the same offence in law, given they related to the same acts on the same dates.
- Whether the element of "dominant reason" under s 104(2) of the Act differed sufficiently between the two sets of charges to render them legally distinct offences capable of being charged in the alternative.
Decision
The District Court rejected the employer's argument that the four summonses were duplicates. The court found that the two sets of charges were legally distinct because each required proof of a different fact. Under s 106 of the Act, a "prohibited reason" can arise from various circumstances, including an HSR exercising functions under s 106(c) or a worker raising health and safety concerns with other workers under s 106(h)(vi). These are separate statutory grounds, and the dominant reason alleged in each pair of summonses was different.
The court applied the test from the High Court's decision in Pearce v The Queen (1998) 194 CLR 610, which asks whether each offence requires proof of a fact that the other does not. Because the Directions summonses required proof that the dominant reason was the HSR's exercise of his cease-work direction power, and the Issues and Concerns summonses required proof that the dominant reason was his raising of health and safety concerns, each charge required proof of a distinct fact. That distinction was sufficient to make the charges legally different.
On the question of procedure, the prosecutor had clarified on the record that it would press for conviction on the Directions summonses at trial, and only seek convictions on the Issues and Concerns summonses if the primary charges failed. The court accepted this as a legitimate pleading in the alternative. The trial was to proceed on that basis, with the alternative charges to be dismissed if convictions were obtained on the primary charges.
The court dismissed the notice of motion, finding the employer was not entitled to a stay or to compel the prosecutor to elect. Costs were ordered to follow the event.
Orders Made
In each of the four matters:
- The notice of motion filed by the defendant on 14 October 2022 was dismissed.
- The defendant was ordered to pay the prosecutor's costs of the notice of motion.
Key Takeaways
- The District Court confirmed that charges under s 104(1) of the Work Health and Safety Act 2011 (NSW) can be brought in the alternative where each charge pleads a different "prohibited reason" as the dominant reason for the discriminatory conduct.
- Under the Pearce test, two charges are legally distinct if each requires proof of a fact that the other does not. The "dominant reason" element of a WHS discrimination offence is capable of distinguishing otherwise identical charges where different prohibited reasons are alleged.
- A prosecutor is not required to elect between alternative charges before trial merely because the charges arise from the same conduct and the same dates, provided the legal elements differ.
- Section 106 of the Act sets out a range of separate prohibited reasons, and alleging different grounds from that section in separate summonses does not automatically render those charges duplicates.
- Raising an objection to the form of summonses very close to a trial date, long after the summonses were filed, was noted by the court as procedurally unsatisfactory, though the court resolved the matter on its merits.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 85, 104, 105, 106, 110
- Criminal Procedure Act 1986 (NSW), s 247H
Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] 225 ALR 226