Citation: SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3) [2023] NSWDC 468
Court: District Court of New South Wales
Date: 16 November 2023
Judge: Russell SC DCJ
Background
In late January and early February 2020, as awareness of the Coronavirus was rapidly growing, an elected Health and Safety Representative (HSR) employed by Qantas Ground Services Pty Ltd (QGS) directed workers to cease cleaning and servicing aircraft arriving from China. The HSR exercised that direction under s 85 of the Work Health and Safety Act 2011 (NSW) (WHS Act), citing concern about the risk of workers contracting the Coronavirus from aircraft surfaces.
QGS stood down the HSR on 2 February 2020, directing him not to attend work pending an investigation. On 7 February 2020, QGS issued the HSR with a letter setting out allegations against him.
SafeWork NSW, the relevant regulator under the WHS Act, prosecuted QGS across four sets of proceedings. The prosecutions alleged that QGS engaged in discriminatory conduct against the HSR for a prohibited reason, namely that he had exercised his powers and functions as an HSR.
Legal Issues
- Whether QGS engaged in discriminatory conduct by altering the HSR's position to his detriment (by standing him down on 2 February 2020)
- Whether the dominant reason for that conduct was a prohibited reason under the WHS Act, specifically that the HSR had exercised a power or performed a function as an HSR
- Whether the HSR's direction to cease work was validly given under s 85 of the WHS Act, including whether the necessary preconditions (reasonable concern, serious risk from immediate or imminent exposure to a hazard, and prior consultation) were satisfied
- Whether QGS threatened to take disciplinary action against the HSR on 7 February 2020, constituting a further act of discriminatory conduct
- Whether the 7 February 2020 letter of allegations constituted a "threat" within the meaning of the WHS Act
Decision
2 February 2020 (standing down the HSR): The court found that QGS did stand down the HSR on 2 February 2020, and that this altered his position to his detriment. The central contested question was whether the dominant reason for that action was a prohibited reason, namely the HSR's exercise of his power under s 85 of the WHS Act to direct workers to cease unsafe work. The court found, beyond reasonable doubt, that the dominant reason was indeed that prohibited reason. QGS was found guilty of the principal charge in proceedings 2021/284164.
Validity of the s 85 direction: The court examined the preconditions for a valid direction to cease work under s 85, including whether there was a reasonable concern that the work exposed workers to a serious risk from an immediate or imminent hazard, and whether the required consultation had occurred before the direction was given. The court's analysis of these questions was central to determining whether the HSR had exercised a power "under the WHS Act" for the purposes of the discriminatory conduct provisions.
7 February 2020 (the letter of allegations): The court found that SafeWork had not proved that QGS made a "threat" to take disciplinary action against the HSR on 7 February 2020, as alleged. Because the element of a threat was not established beyond reasonable doubt, both the principal charge and the alternative charge arising from the 7 February events were not proved. Final orders on those two proceedings were deferred to allow SafeWork the opportunity to consider whether to state a case to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912 (NSW).
Alternative charges: The alternative charge relating to the 2 February 2020 conduct (proceedings 2021/284149) was dismissed without consideration of the merits, as requested by the prosecutor, given the guilty finding on the principal charge. The alternative charge for 7 February 2020 (proceedings 2021/284172) also failed, again because the court was not satisfied that a threat had been made as alleged.
Orders Made
Proceedings 2021/284164 (principal "Directions" charge, 2 February 2020):
- All elements of the charge proved beyond reasonable doubt
- Qantas Ground Services Pty Ltd found guilty
- Matter listed for a sentence hearing on a date convenient to the parties
- Costs reserved
Proceedings 2021/284149 (alternative "Issues and Concerns" charge, 2 February 2020):
- Summons dismissed
- Costs reserved
Proceedings 2021/284183 (principal "Directions" charge, 7 February 2020):
- Prosecution did not prove all elements beyond reasonable doubt
- Final orders deferred pending SafeWork's consideration of an application under s 5AE of the Criminal Appeal Act 1912 (NSW)
- Costs reserved; matter listed for determination of costs, final orders, or argument on proposed questions of law for the Court of Criminal Appeal
Proceedings 2021/284172 (alternative "Issues and Concerns" charge, 7 February 2020):
- Prosecution did not prove all elements beyond reasonable doubt
- Final orders deferred pending SafeWork's consideration of an application under s 5AE of the Criminal Appeal Act 1912 (NSW)
- Costs reserved; matter listed for determination of costs, final orders, or argument on proposed questions of law for the Court of Criminal Appeal
Key Takeaways
- The District Court confirmed that standing down an HSR from employment can constitute "discriminatory conduct" under the WHS Act where the dominant reason for that action is the HSR's exercise of a power under the Act, including a direction to cease unsafe work under s 85.
- Under s 85 of the WHS Act, an HSR's power to direct the cessation of unsafe work is conditioned on preconditions including the existence of a reasonable concern about serious risk from an immediate or imminent hazard, and prior consultation. The court's analysis treated the question of whether those preconditions were met as directly relevant to whether the HSR was "exercising a power under the WHS Act."
- Whether a communication from an employer constitutes a "threat" of disciplinary action within the meaning of the WHS Act's discriminatory conduct provisions is a factual question requiring proof beyond reasonable doubt. The court was not satisfied that a letter of allegations sent on 7 February 2020 crossed that threshold on the evidence before it.
- Where a principal charge is made out, courts may dismiss an alternative charge relating to the same conduct without considering its merits, consistent with prosecutorial discretion in these proceedings.
- Findings on the 7 February charges were not finalised at the time of judgment, as the court preserved SafeWork's right to consider stating questions of law to the Court of Criminal Appeal before final orders were entered.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 4, 46, 47, 48, 49, 50, 66, 68, 70, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 93, 99, 104, 105, 106, 110
- Work Health and Safety Regulation 2017 (NSW), cl 24
- Criminal Appeal Act 1912 (NSW), s 5AE
- Criminal Procedure Act 1986 (NSW), s 133(2)
- Evidence Act 1995 (NSW), s 165
- Work Health and Safety Act 2011 (Qld), s 85
- Fair Work Act 2009 (Cth)
- Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 46, 81
Cases:
- Constantanidis v R [2022] NSWCA 4
- Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302
- CFMMEU v Sydney International Container Terminals Pty Ltd [2020] FWC 4983
- Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited (No. 2) [2015] FCA 1088
- Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092; (2009) 189 IR 165
- Communications, Electrical, Electronic, Energy, Information,