Citation: SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4) [2024] NSWDC 53
Court: District Court of NSW
Date: 6 March 2024
Judge: Russell SC DCJ
Background
Qantas Ground Services Pty Ltd (QGS), a wholly owned subsidiary of Qantas Airways Limited, provided labour hire services to the Qantas Group. One of its employees, a high lift truck driver at Sydney International Terminal, also served as an elected Health and Safety Representative (HSR) for his work group. On 2 February 2020, QGS stood him down from employment and directed him not to attend work pending an investigation.
SafeWork NSW, the work health and safety regulator, charged QGS with engaging in discriminatory conduct for a prohibited reason under the Work Health and Safety Act 2011 (NSW) (WHS Act). The allegation was that QGS altered the employee's position to his detriment, and that the dominant reason for the stand-down was that he had exercised his statutory power as an HSR to direct workers to cease unsafe work under section 85 of the WHS Act.
In the earlier primary judgment, SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3) [2023] NSWDC 468, Russell SC DCJ found QGS guilty of that offence beyond reasonable doubt. The present decision concerns sentencing.
Legal Issues
- What was the objective seriousness of QGS's offending, and where did it fall within the range of conduct covered by the offence?
- What aggravating and mitigating factors were relevant to the sentence?
- What weight should be given to general and specific deterrence, given QGS's size and capacity to pay?
- Whether a project order sought by SafeWork NSW should be made.
- What compensation, if any, should be ordered in favour of the affected employee?
- What costs orders were appropriate across the four sets of proceedings?
Decision
The court assessed the objective seriousness of the offending as significant. The role of HSRs is central to the effective operation of the WHS Act: they represent workers, advise on safety matters, and exercise statutory powers that serve the broader goal of securing health and safety in the workplace. Discriminating against an HSR for exercising those powers strikes at the foundations of the consultative regime the legislation establishes.
The court took into account the statutory objects of the WHS Act, particularly those relating to fair and effective workplace representation, consultation, and the promotion of workplace health and safety education. Under the sentencing purposes in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court emphasised that denunciation and general deterrence were of particular importance, given the need to send a clear message to persons conducting a business or undertaking (PCBUs) about the discriminatory conduct provisions and the protected role of HSRs.
The maximum penalty for the offence was $500,000. The court imposed a fine of $250,000, reflecting the objective seriousness of the conduct while taking into account relevant mitigating factors, including that QGS had amended its work health and safety training materials to incorporate a discussion of the primary judgment and the relevant legislative provisions.
The court declined to make the project order sought by SafeWork NSW. The proposed order, valued at $250,000, was not adequately particularised: there was no sufficient justification for the scale of the proposed activities, no breakdown of how the figure was arrived at, and past project orders had been limited to $20,000 or less. The parties had agreed on a compensation order in favour of the affected employee, and costs orders were agreed across all four sets of proceedings.
Orders Made
In proceedings 2021/284164 (the principal "Directions" proceedings, 2 February 2020):
- QGS convicted of the offence charged.
- Fine of $250,000 imposed; 50% to be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996 (NSW).
- Compensation of $21,000 to be paid to the affected employee within 28 days, comprising $6,000 for economic loss and $15,000 for non-economic loss (hurt and humiliation).
- QGS to pay SafeWork NSW's costs, including costs of two Notices of Motion.
- Exhibits returned.
In proceedings 2021/284149 ("Issues and Concerns" proceedings, 2 February 2020):
- QGS to pay SafeWork NSW's costs on the two Notices of Motion.
- Otherwise, each party to bear its own costs.
- Exhibits returned.
In proceedings 2021/284183 ("Directions" proceedings, 7 February 2020):
- QGS to pay SafeWork NSW's costs on the two Notices of Motion.
- Otherwise, SafeWork NSW to pay QGS's costs.
- Exhibits returned.
In proceedings 2021/284174 ("Issues and Concerns" proceedings, 7 February 2020):
- QGS to pay SafeWork NSW's costs on the two Notices of Motion.
- Otherwise, SafeWork NSW to pay QGS's costs.
- Exhibits returned.
Key Takeaways
- The District Court confirmed that discriminating against an HSR for exercising a statutory power under the WHS Act is a serious offence warranting significant penalty, given the central role HSRs play in the consultative and protective framework of the legislation.
- Under the WHS Act, an HSR who acts in good faith and in the reasonable belief that they are exercising a statutory power is entitled to protection from detrimental action by a PCBU; conduct undermining that protection attracts denunciation and strong general deterrence considerations at sentencing.
- A fine of $250,000 (half the maximum) was imposed, reflecting both the objective seriousness of the offending and relevant mitigating factors, including post-offence remediation steps taken by the defendant.
- Project orders will not be granted simply because a significant penalty is available: the court requires adequate particularisation of the proposed activities and a clear basis for the dollar figure sought, consistent with the modest scale of past such orders.
- Compensation under section 111 of the WHS Act can extend beyond economic loss to include non-economic loss for hurt and humiliation caused by the unlawful conduct.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 66, 84, 85, 106, 111, 238
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3) [2023] NSWDC 468
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178