SafeWork NSW v Qantas Ground Services Pty Ltd

Health and Safety Representatives and the WHS Act

1. In pars [34]-[39] of the primary judgment, I dealt with the consultation provisions under the WHS Act. These are very important provisions in the legislation, which impose a duty to consult upon both a person conducting a business or undertaking (PCBU) and workers. The initial obligation to resolve health and safety issues is thus cast upon the parties in the workplace, rather than a court.
2. In pars [40]-[43] of the primary judgment I dealt with the provisions of the WHS Act regarding HSRs. An HSR is elected to represent workers who carry out work for the business or undertaking. They are granted powers and functions by the legislation and are also granted immunity for anything done in good faith in exercising a power or performing a function under the WHS Act. There is a statutory obligation upon the PCBU to consult with an HSR on work health and safety matters. Individual workers are given a right to cease unsafe work under s 84 of the WHS Act. An HSR may direct that unsafe work cease, pursuant to s 85 of the WHS Act. That power may only be exercised after consultation with the PCBU.
3. Straight away it can be seen that the position of HSR is one crucial to the effective working of the WHS Act, and indeed the effective operation of businesses. If the position of HSR did not exist, then each business or undertaking would have to negotiate collectively or individually with all of its workers. The WHS Act contains provisions in relation to training HSRs. In this case Mr Seremetidis was a trained HSR, and as I found in the primary judgment, was a careful and conscientious HSR. Many workers would not have the time or the inclination to inform themselves fully about health and safety matters, as Mr Seremetidis did, sometimes during his time away from work. Thus, an HSR not only represents workers in discussing health and safety matters with the PCBU, but is there to advise workers who would otherwise not know about health and safety matters or about the risks to their health and safety.
4. It is therefore not surprising that s 106 of the WHS Act, which defines "prohibited reason" specifically includes discrimination against a worker who has exercised a power or performed a function as an HSR - s 106(c).
5. A reading of all of the provisions in the WHS Act regarding HSRs leads me to the view that an HSR should be fearless in carrying out his or her duties and obligations, providing that such acts are done in good faith, and in the reasonable belief that the action taken by the HSR is done in the exercise of a power or the performance of a function granted to an HSR under the WHS Act - s 66 of the WHS Act.

Consideration of Statutory Objects

1. I have had regard to the objects in s 3 of the WHS Act. All are relevant to the sentencing in this matter, but in particular I take into account the following objects in s 3(1): "(b) Providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety… (c) … Assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment… (d) Promoting the provision of advice, information, education and training in relation to work health and safety…"
2. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), which provides as follows: "The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
3. In this case, it is important that not only QGS be punished for the offence, but that its conduct is denounced, to send a message to PCBUs about the discriminatory conduct provisions of the WHS Act, and in particular, the important role played by HSRs in achieving the "main object" of the WHS Act, which is "to secure the health and safety of workers and work places" - s 3(1) WHS Act.

Objective Seriousness of the Offence

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
4. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
5. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

Sentencing Submissions for the Prosecutor

1. Counsel for the prosecutor submitted as follows: 1. The standing down of Mr Seremetidis was a serious instance of discriminatory conduct. Counsel pointed to the primary judgment at [309] which said: "I accept the submission of SafeWork that QGS actively sidelined Mr Seremetidis (MFI 39, pars 290 and 355), firstly by keeping him in the blanket bay and cutting him off from other staff who were seeking his help, and secondly by standing him down and requiring him to leave the airport forthwith. I find that QGS saw the giving of the directions by Mr Seremetidis to cease work as a threat to the conduct of business, and in particular, a threat to the ability of QGS to clean and service aircraft and get them back in the air." 1. The fact that the discriminatory conduct was deliberate increases the seriousness of the offence. 2. QGS knew of its obligations under the WHS Act not to discriminate against an HSR for exercising his or her powers. Indeed, Mr Seremetidis himself reminded QGS of those obligations on the morning of 2 February 2020 - see primary judgment at [156]. 3. The persons involved in the conduct were very senior managers with the employ of QGS and Qantas. Each held substantial positions of power over Mr Seremetidis. By contrast Mr Seremetidis was a part-time employee earning $23.79 per hour (PX 17, pars 2 and 3). 4. The discriminatory conduct against Mr Seremetidis was motivated by a desire to give priority to the commercial interests of QGS rather than its obligations under the WHS Act - see primary judgment at [225] and [309]. 5. The discriminatory conduct had a lasting impact on Mr Seremetidis. He never returned to normal duties as a high lift truck driver or as an HSR. The affidavit of Mr Seremetidis shows that he went through considerable mental anguish, which continues to this day, as a result of the way he was treated by QGS. 6. The conduct of QGS was in complete disregard of the obligations of QGS towards the health and safety of its workers, and its obligations to deal in a bona fide way with an HSR appointed to represent those workers. 7. The conduct of QGS was "high-handed" and "punitive" (MFI 49, par 17).
2. Counsel for the prosecutor submitted that the offence "is in the higher end of objective seriousness" (MFI 49, par 20).
3. Senior Counsel for QGS submitted as follows: 1. The court must take into account the circumstances surrounding the commission of the offence. There were differing opinions about the early emergence of Coronavirus and what effect it might have upon the health of workers. As at 2 February 2020 there was a general state of uncertainty, anxiety and fear. 2. International transport was a particularly difficult area of operation at the time, and QGS had to deal with the government closing the borders on 1 February 2020. 3. QGS did make attempts to deal with these problems by having expert medical staff obtain information about Coronavirus and by providing that information to the workforce by means of daily updates and toolbox talks given by a Ground Services Operational Team Manager (GSOT) to each crew rostered to clean a plane which arrived from China. 4. When Mr Seremetidis asked for a support person to be present with him on 2 February 2020, QGS acceded to that requested and waited for his support person to arrive at the meeting. 5. When Mr Seremetidis was escorted from the premises, having been stood down, QGS agreed to the support person escorting Mr Seremetidis from the airport. 6. Mr Seremetidis was stood down with pay, pending investigation. 7. There is no evidence that his stand down deterred any other workers from exercising their workplace rights. 8. The fact that the decision to stand down Mr Seremetidis was made at a senior level showed that QGS treated the circumstances at the time seriously and did not make its decision lightly.
4. Senior Counsel for QGS submitted that Mr Seremetidis did not consult with QGS before he issued his orders to cease work under s 85 of the WHS Act, and further, that if he did consult with QGS, the outcome may have been different. However, the obligation to consult arose on both sides. At no time on 2 February 2020 did QGS try to initiate consultation, rather than taking the peremptory step of standing Mr Seremetidis down, after isolating him from the workers he was supposed to represent and advise.

Objective Seriousness: Consideration

1. Because this prosecution is unique, I do not propose to express my view about objective seriousness in the usual fashion, by categorising the offence as being in the low, mid or high range. When there are no comparators, such a classification is meaningless.
2. I find that the offence is one involving significant culpability, for the following reasons: 1. The behaviour of QGS in discriminating against Mr Seremetidis was not inadvertent or caused by a failure to have a proper health and safety system. It was deliberate conduct on the part of QGS designed to advance its own commercial interests, at the expense not only of Mr Seremetidis, but also at the expense of those workers who were then denied his counsel and advice in relation to a vital health and safety issue. 2. There was a gross power imbalance between the senior managers at QGS and Mr Seremetidis, a part-time employee on a very modest wage, who had also taken on the role of an HSR. 3. The fact that QGS might be committing discriminatory conduct in standing down Mr Seremetidis should have been known to QGS, but it was also specifically pointed out by Mr Seremetidis to QGS - see the primary judgment at [158]. 4. While Mr Seremetidis did not consult QGS before he issued his directions to cease work, neither did QGS fulfil its obligations under the WHS Act to consult on 2 February 2020 about a health and safety matter. Instead it detained Mr Seremetidis and cut him off from the workers seeking his advice, before a senior executive read out a prepared script from her phone and he was required to leave the workplace forthwith - see the primary judgment at [170]. 5. The role of an HSR is vital to the protection of workers and the running of any business. It would be almost impossible for a business of the size of QGS to negotiate or consult with each and every worker about health and safety matters. It is a positive advantage to a PCBU to be able to go to an HSR to deal with health and safety matters. The actions of QGS deliberately ignored the consultation and the HSR provisions of the WHS Act. 6. The effect of the conduct of QGS upon Mr Seremetidis personally was traumatic and long-lasting, as detailed in his affidavit. The conduct of QGS towards Mr Seremetidis was quite shameful. Even when he was stood down and was under investigation, QGS attempted to manufacture additional reasons for its actions. In the primary judgment at [203] - [226] I held that this transparent attempt to justify the stand down was not permissible. 7. The maximum penalty for the offence is a fine of $500,000, which shows how seriously the legislature regards the offence.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. General deterrence is a significant factor when work health and safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
2. General deterrence is a particularly important factor in this case. I have already outlined the reasons why it is essential that health and safety representatives must be free to exercise their powers and undertake their functions without fear of discriminatory conduct.
3. According to the research of counsel and myself, this is the first case heard in relation to discriminatory conduct under the WHS Act, not only in New South Wales, but in Australia, which has a national work health and safety framework. I acknowledge that the discriminatory conduct in this case arose in exceptional circumstances, being the commencement of the COVID-19 pandemic. As this is the first prosecution, it is important to send a message to PCBUs that they cannot engage in discriminatory conduct under the WHS Act, and further, that they must not engage in discriminatory conduct so as to penalise health and safety representatives, and thus defeat many of the principal objects of the WHS Act.
4. The penalty must reflect the need for specific deterrence. QGS is still conducting a business. Its operations involve cleaning and maintenance of aircraft flown for commercial purposes, and the continuing engagement of many workers.

Aggravating Factors

1. The emotional harm caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

1. QGS has no previous convictions: s 21A(3)(e) CSP Act.
2. QGS cooperated with SafeWork NSW during the investigation: s 21A(3)(m) CPS Act.
3. QGS pleaded not guilty to the charge. It should not be penalised for that, but there is no discount on penalty that would otherwise apply.
4. QGS showed no remorse for the commission of the offence. The conduct of the defence during the lengthy trial amounted to an attempt at justification for the offending behaviour. QGS did not provide any evidence that it has accepted responsibility for its actions or acknowledge that the injury to Mr Seremetidis was caused by its actions: s 21A(3)(i) CSP.
5. The very last submission made by Senior Counsel for QGS at the sentencing hearing was that on behalf of QGS and Qantas, an apology was offered to Mr Seremetidis for the impact of the way he was treated in February 2020, and for putting him through the ordeal of the subsequent litigation. There was no evidence that QGS or its management had ever spoken to Mr Seremetidis to offer an apology.
6. The trial ran for 11 days. Mr Seremetidis was in the witness box for just over 6 days. That alone would have been a terrible burden upon him. Mr Seremetidis showed enormous strength of character, not only at the time he was discriminated against by QGS in 2020, but by his demeanour as a witness over a lengthy period of time. Mr Seremetidis displayed a very good memory of events which had happened several years before. He was a witness of truth and credibility. While he was cross-examined at length, quite properly, no one from QGS entered the witness box to contradict his version of events.

Capacity to Pay a Fine

1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
3. There was no submission about capacity to pay, so this issue does not arise.

Project Order

1. SafeWork sought a project order pursuant to s 238 of the WHS Act. The proposed order would require QGS to fund the development and production of an educational advertising campaign and an educative video to the value of $250,000.
2. Such orders have been made in the past. Sometimes project orders are made to bring home to a particular offender (often a repeat offender) the importance of complying with the WHS Act.
3. Sometimes project orders are made in cases where the particular offence is one which frequently comes before the courts, and it is obvious that some sort of educational campaign is needed for industry generally. Examples which spring to mind include falls from heights, forklift accidents and confined space injuries. By contrast, as previously stated, this is the first prosecution under a provision which has been in force for over 12 years, not only in New South Wales but throughout Australia.
4. In those circumstances there seems to me to be no need to conduct an educational advertising campaign or to create an educative video. Further, there was no breakdown of how the figure of $250,000 was arrived at. Past project orders have been limited to a figure of $20,000 or less. I decline to make a project order.

Compensation Order

1. The parties have agreed upon an order for the compensation of Mr Seremetidis.

Costs

1. The parties have agreed upon costs orders in all four matters.

Penalty and Orders

1. The court orders that: In proceedings 2021/284164 (the "Directions" Amended Summons in relation to 2 February 2020): (1) Qantas Ground Services Pty Ltd is convicted. (2) Order Qantas Ground Services Pty Ltd to pay a fine of $250,000. (3) Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (4) Order pursuant to s 111 of the Work Health and Safety Act 2011 (NSW) that within 28 days Qantas Ground Services Pty Ltd is to pay to the person who was the subject of the discriminatory conduct, Theocharis Seremetidis, the amount of $21,000 comprising: (a) Compensation for economic loss arising from the unlawful conduct - $6,000; and (b) Compensation for non-economic loss for hurt and humiliation caused by the offence - $15,000. (5) Order Qantas Ground Services Pty Ltd to pay the costs of SafeWork NSW, including the costs of the two Notices of Motion. (6) The exhibits are returned. In proceedings 2021/284149 (the "Issues and Concerns" Summons in relation to 2 February 2020): (1) Order Qantas Ground Services Pty Ltd to pay the costs of SafeWork NSW in relation to the two Notices of Motion. (2) Subject to Order (1) above, order that each party pay its own costs of the proceedings. (3) The exhibits are returned. In proceedings 2021/284183 (the "Directions" Amended Summons in relation to 7 February 2020): (1) Order Qantas Ground Services Pty Ltd to pay the costs of SafeWork NSW in relation to the two Notices of Motion. (2) Subject to Order (1) above, order SafeWork NSW to pay the cost of Qantas Ground Services Pty Ltd. (3) The exhibits are returned. In proceeding 2021/28417 (the "Issues and Concerns" Summons in relation to 7 February 2020): (1) Order Qantas Ground Services Pty Ltd to pay the costs of SafeWork NSW in relation to the two Notices of Motion. (2) Subject to Order (1) above, order SafeWork NSW to pay the cost of Qantas Ground Services Pty Ltd. (3) The exhibits are returned.

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