John Holland Pty Ltd v Victorian Workcover Authority

John Holland Pty Ltd v Victorian Workcover Authority - [2009] HCA 45 - HCA 2009 case summary — Zoe

[25]

Part 2 of the OHS Act (ss 16‑23A) makes detailed provision for the duties of "employers" relating to occupational health and safety. Schedule 2 Pt 1 provides for civil enforcement proceedings and Pt 2 creates various offences for contravention of the duties created by Pt 2 and lays out penalty provisions. The term "employer" means the Commonwealth, a Commonwealth authority or a non‑Commonwealth licensee (s 5(1)).
Section 7(1)(c) of the relevant State statute, the Occupational Health and Safety Act 2004 (Vic) ("the State Act") confers upon the defendant ("the Authority") the function of monitoring and enforcing compliance with that statute. Section 21 creates offences which include the offences by an employer of failing in the duty to provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health (s 21(2)(a)) and the duty to provide information, instruction, training or supervision to employees necessary to enable employees to perform their work in a way that is safe and without risks to health (s 21(2)(e)). Section 23(1) requires an employer to ensure, so far as is reasonably practicable, that third parties are not exposed to health and safety risks arising from the undertaking of the employer. Offences against ss 21 and 23 are indictable offences (s 21(4) and s 23(2) respectively).
Proceedings for an indictable offence may be commenced within two years after the offence is committed or the Authority becomes aware the offence was committed, or at any time with the written authorisation of the Director of Public Prosecutions (s 132).
The plaintiff, by prosecution commenced in a State court on 24 September 2008, was charged with offences against these provisions of s 21 and s 23, allegedly committed in the State of Victoria on or about October 2006. The informant was an inspector appointed by the Authority under Pt 9 (ss 95‑126) of the State Act. An inspector was empowered by s 130 to bring proceedings for an offence against the State Act.
It is important to note the date of the alleged offences. In October 2006, the plaintiff was not a "non‑Commonwealth licensee" and so had no duties imposed upon it under the OHS Act. There was then no licence in force under Pt VIII of the SRC Act to meet the definition of "non‑Commonwealth licensee" in s 5(1) of the OHS Act. At that stage no question of the operation of s 109 of the Constitution could have arisen.
Indeed, the relevant licensing provisions under the federal law did not exist in October 2006. The provisions were added to the OHS Act by the OHS and SRC Legislation Amendment Act 2006 (Cth) ("the 2006 Act") and commenced on 14 March 2007.
The licence under Pt VIII of the SRC Act was granted on 13 December 2006 with a commencing date of 1 January 2007 ("the plaintiff's licence"). The plaintiff's licence has remained in force at all times since 1 January 2007. On the commencement of the 2006 Act on 14 March 2007 and by reason of the plaintiff's licence under Pt VIII of the SRC Act then being in force, the plaintiff became a "non‑Commonwealth licensee" and an "employer" within the meaning of the definition of those terms in the OHS Act.

[27]

The plaintiff contends that its prosecution under the State Act, commenced after it became a "non‑Commonwealth licensee" and an "employer" within the meaning of the OHS Act, is incompetent, and enlists the operation of s 109 of the Constitution to mandate that conclusion. Counsel for the plaintiff identified the underlying issue in the case as whether once his client became subject to the OHS Act it ceased to be liable to prosecution for offences allegedly previously committed against the State Act; what had taken place was itself unaffected by the federal law but the provisions of the State law which enabled a prosecution to be instituted were rendered inoperative.
The defendant attracted the support of interventions by the Attorneys‑General of the Commonwealth, New South Wales, South Australia and Queensland.
The submissions of the defendant and the interveners are to the effect that upon its proper construction the OHS Act evinces an intention to exclude the operation of the State Act only to the extent to which the State Act would purport to impose rights and obligations in relation to occupational health and safety of those who were "employers" or "employees" at the time the relevant workplace conduct occurred. The result is said to be that: (a) the OHS Act applies to conduct of the plaintiff occurring on and from the commencement of the 2006 Act, namely 14 March 2007, or on the commencement of a licence, whichever is the later; (b) the OHS Act does not speak to the continuing operation of the State Act upon the earlier alleged conduct; (c) s 4 of the OHS Act, upon which the plaintiff particularly relies, cannot operate of its own force to render inoperative any State law and, rather, indicates the particular field upon which the OHS Act makes exhaustive or exclusive provision, and (d) that field does not extend to the prosecution of offences under State law for acts or omissions alleged in a period before the plaintiff became a "non‑Commonwealth licensee".

[39]

In this case the substantive provisions of the Act support the statement of intention set out in s 4.
Section 4, in its application with respect to State law, discloses a limited intention of exclusion by the use of the phrase "to the extent that ...". The limitation has two limbs which "target" a limited class of State laws. First the State law must be one which relates to occupational health or safety and secondly it must be the case that the State law "would otherwise apply in relation to employers, employees, or the employment of employees". The essential difficulty with the plaintiff's case is that it responds to the first but not to the second limb.
The plaintiff was an "employer" within the meaning of s 4 when on 24 September 2008 it was charged under s 130 of the State Act with the offences against ss 21 and 23 allegedly committed before it acquired that status of "employer". Each of ss 21 and 23 is to be treated for the purposes of s 4 as a "law". This follows from s 4(5) which provides that in s 4, "law" includes a provision of a law. Can it be said within the meaning of s 4 that ss 21 and 23 of the State Act, the offence provisions, are laws of a State which "would otherwise apply" in relation to the plaintiff as an "employer"? The answer must be in the negative. Again, to the extent that s 130 provides for the prosecution of a corporation in respect of an offence allegedly committed before it became an "employer", it is not to that extent a State law applying in relation to an "employer".
The apparent purpose of s 4 is to relieve "employers" from the observance of the concurrent operation of multiple sets of legislatively imposed duties, whether imposed by State or Territorial law. That objective assumes the operation of the federal system for the securing of the health, safety and welfare of employees. It is not advanced by a construction of s 4 which would absolve those who become "employers" from liability to prosecution for offences against a State occupational health and safety law allegedly committed before that status was acquired.
Reference was made in submissions to sub‑sections of s 4 following upon s 4(1).
The provisions of s 4(1) are subjected to s 4(2). This confirms that in certain circumstances, not presently relevant, where substantive provisions of the OHS Act do not apply, State and Territory laws are not intended to be excluded. This provision does not assist the plaintiff's case.
Nor does the presence of s 4(3). The sub‑section confers a power to prescribe by regulation a State or Territory law as not intended to be excluded by the OHS Act. The power is exercisable where the State or Territory law "deals with a matter relating to occupational health or safety that is not dealt with by or under [the OHS Act]". The exercise of this power serves to limit in the cases where it is exercised what otherwise would be the scope of the phrase "to the extent that" in s 4(1). The particular law may answer both limbs of s 4(1), but be excluded by regulation from the intention to exclude. In the present case, s 4(1) has no relevant operation to provide the occasion for the exercise of power under s 4(3).

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