Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd

[2018] VCC 2282

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00980

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK STEVEDORES HOLDINGS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 December 2018
CASE MAY BE CITED AS:	DPP v Patrick Stevedores Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 2282

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR P. DUNN QC with MR P. MATTHEWS
For the Accused	MR S. JACKSON

1HIS HONOUR:  Patrick Stevedores Holdings Pty Ltd, which I will refer to as Patricks, was found guilty after trial by jury, of six charges of discrimination.  That is, a charge of threatening to alter the position of an employee, to the employee's detriment, for raising health and safety issues.  Under s.76 of the Occupational Health & Safety Act, each contravention carries a maximum penalty of 2500 penalty units.  Patricks was acquitted of one charge, that is Charge 3 on the indictment, by the same jury.  The accused company admitted one prior conviction. I shall return to that matter later in the sentencing remarks. 

2It is necessary to say quite a deal about the facts upon which the jury verdicts were founded.  In 2009, Patricks conducted stevedoring operations at the Port of Hastings.  In the weeks preceding 9 March 2009, BlueScope Steel had delivered about 800 rolls of vertical steel coils, known as top hats, to be loaded onto an incoming ship, the Pacific Vigorous, for transportation to other destinations.  About 70 of the top hats weighed more than the stevedores had been used to loading at the port for some years; the heaviest of the coils weighed about 9.056 tonnes.

3The top hats were transported from the BlueScope Steel plant to the port on pallets.  Each top hat had to be loaded by forklift onto a specially designed loading crane, then lifted by crane into the ship's hold.  The loading trays had a flat loading or holding surface and then a vertical back plate, against which the coil rested. 

4The forklift provided for the job of transferring each top hat to the loading tray was an Omega 14S with tines 1830 millimetres long.  The safe work load limits for the lifting were provided on the forklift rating plate and were also stencilled onto the body of the machine.  Essentially, when the load centre of the weight was placed 600 millimetres from the mast of the forklift, the maximum safe lifting load was 14 tonnes.  The safe work load lifting capacity of the forklift and tines decreased as the load centre was placed further away from the mast.  When the load centre was set at 1200 millimetres from the mast, the maximum safe work limit was decreased to 7.32 tonnes.

5The safety issue here can be simply stated.  Once the top hat was placed on the forklift, if the load was placed close to the mast, the front of these long tines would hit the vertical back plate of the loading tray.  It was therefore necessary to keep the load centre away from the mast and towards the front of the tines at, it seems, around the 1200 millimetre mark from the mast.  As 70 or so heaviest top hats weighed more than the 7.32 tonnes and up to 9.056 tonnes, they would exceed the safe work limit if the load centre was placed at 1200 millimetres from the mast.  The solution to the safety issue was either to replace the tines used on that forklift or to exchange the forklift for one with a greater load capacity.

6Shortly after the commencement of the loading of the ship with the lighter weight top hats, the team leader, John McCuskey, alerted the Patrick's port operations manager, Mick Dorian, to the nature of the safety issue.  Mr Dorian had left the port on the night of 9 March 2009, to fly interstate to Port Kembla on Patrick's business.  In this first conversation, the proposed solution to the problem was to get the use of another forklift from BlueScope Steel, as its manufacturing plant was about a kilometre up the road from the port.  Mr Dorian was alerted to and kept up to date on the safety issue by each of the subsequent shift team leaders.  In the meantime, the stevedores kept loading the ship with the lighter top hat coils.  It should be noted that loading continued from the time of commencement shortly after the ship's arrival, until Thursday morning 12 March, when it started raining which prevented the loading from continuing as the coils were not allowed to get wet.

7As the prospect of having to load the heavy top hats drew closer, Mr Dorian asked for details of the forklift.  With the assistance of Sandra Beattie, Mr Dorian's administrative assistant based at the port, they produced a diagram of the safe work load limits at various load centre distances from the mast, together with a diagram of the so called two-bite method.  Mr Dorian told team leaders that the two-bite method was used successfully and continuously at the port in Port Kembla for loading heavy items with long tine forklifts.  This method essentially requires the shifting of the weight of the coil down the tines onto the loading tray and then pushing the coil into position on the tray. 

8On Wednesday, 11 March 2009, Mr Dorian described the two-bite method to team leader Barry Cleary.  Mr Cleary then discussed the method during one of the breaks with the stevedores working on his shift.  The health and safety representative, Anthony Longley, went with Mr Cleary to the shed where the forklift was situated.  They discussed the method and Mr Longley made calculations according to the rating plate safety limit and the weight of the heaviest coils.  Mr Longley and Mr Cleary concluded that it was unsafe to use the method proposed by Mr Dorian, as the weight of the load to be lifted exceeded the safe work load limit for the forklift and tines.

9Mr Cleary related this back in a telephone call to Mr Dorian, who was then travelling back from Port Kembla.  Mr Cleary took notes of this conversation.  Mr Dorian asked the identity of the health and safety representative and was told it was Anthony Longley.  Mr Dorian responded angrily and I quote:  "I'm going to get that cunt." and that he, Dorian, did not care if he had to sack one, five, ten or 20 workers and that, "heads were going to roll".  This is the basis of Charge 1.

10In the same telephone call to Barry Cleary, Mr Dorian stated, to the effect, that if Mr McCuskey complained any further to Dorian the next day, then his employment would be terminated.  Mr Cleary's notes record that Mr Dorian said:  "If John boy [that is McCuskey] whinges to me one more time tomorrow, he can pack his bags and fuck off too."  That is the basis of Charge 2.

11The subject matter of charges 4, 5, 6 and 7 is the alleged threat made by Mick Dorian to Anthony Longley(Charge 4), John McCuskey(Charge 5), Stephen Cave(Charge 6) and Dean Unger(Charge 7), during a meeting held on Thursday 12 March, between Mick Dorian on the one hand and Anthony Longley, McCuskey, Cave and Unger on the other, in Mr Dorian's office.

12Loading had stopped on the morning of 12 March because, as I have already said, the cargo was sensitive to the wet; and conditions that morning were rainy.  Four of the men on the shift decided to go and see the port operations manager, who by then had returned from Port Kembla, to discuss the loading of the heavier coils.  After Mr Dorian again discussed his proposed use of the two-bite method, the men pointed out that the loads exceeded the safe work load limit for the forklift and stated that WorkSafe should be brought in to decide the matter. 

13The evidence of Anthony Longley is that after Stephen Cave asked Mick Dorian whether it would be appropriate to engage WorkSafe, Mr Dorian said:  "You don't want to go down that track, you'll be on a list, a list you don't want to be on."  He then said that Stephen Cave said:  "Can you put a bit more to it?"  Mick Dorian said:  "It's just a list that everyone in this force is able to be on and one by one, we'll put you on there if you don't do as you're told."  Later that morning, Maritime Union officials complained about Mr Dorian's list comment to his - that is Dorian's - superior, Warwick Sumner.  Mr Sumner spoke to Mr Dorian and Mr Dorian approached Stephen Cave and told him that there was no list.

14The objects of the Occupational Health & Safety Act are essentially to secure the health and safety of employees and other persons at work.  The principles of health and safety require that employees and other persons at work be given the highest level of protection against risks to health and safety that is reasonably practicable in the circumstances.  Further, the Act requires employers and employees to be able to exchange information and ideas about risks to health and safety and the measures that can be taken to eliminate or reduce those risks.  Employees are entitled and encouraged to be represented in relation to health and safety issues.  In this way, the Act provides for the appointment of health and safety representatives whose job it is to be vigilant and speak out on behalf of the employees on health and safety issues.

15In measuring the objective gravity of this offending, I must bear in mind these principles.  Further, securing health and safety and eliminating or reducing risks so far as is reasonably practicable must be a paramount concern of every employer.  As such, general deterrence is the predominant sentencing consideration in this matter.  The message to be imparted here is clear and simple.  Employers who threaten workers with termination for raising health and safety issues will face severe punishment.

16On the evidence given by Mr Dorian, the employer readily conceded that the issue raised here by the workers on each shift from Tuesday to Thursday was a bona fide health and safety concern.  Not only was it a legitimate concern but it was self-evident and it was known to Mr Dorian.  The two-page document prepared by Mr Dorian demonstrating the two-bite method that he proposed for putting the coils on the trays, clearly set out the safe work load limit for the forklift and the weight of the heaviest coil to be lifted.  As such, the employer appreciated the issue and also the circumstances in which it was raised.  Mr Dorian knew that a worker had been killed in an accident with a coil in 2007.

17It is also important at this point to make an observation about the evidence given by each of Mr Longley, Mr McCuskey and Mr Cleary about the concerns they raised and the manner in which they were communicated to Mr Dorian.  There was no suggestion made in cross-examination that the health and safety issue was raised in anything but a calm, civil and reasonable manner with Mr Dorian.  Given his immediate concession in his evidence, that the health and safety issue was bona fide, it is plain that the concern raised was not only legitimate, but significant.  The threats made by Mr Dorian to Anthony Longley via Barry Cleary on Wednesday, 11 March 2009, are all the more serious for the fact that the port manager on behalf of the employer asked for and singled out the health and safety representative.  When Mr Longley was identified, Mr Dorian threatened his employment in the most condescending, offensive and demeaning terms.  He referred to Mr Longley as:  "A cunt", "An imbecile" and to Mr Longley and the other workers generally, as:  "Dribbling idiots."  Even in his evidence before the jury, Mr Dorian referred to the workforce at the Port of Hastings as "Naive."

18Returning however to the threat made to Mr Longley, it is sufficient to say that I conclude that the threat was made in angry and aggressive tones and made with at least the intention of intimidating Mr Longley, who had done nothing more than act as a responsible health and safety representative once a significant risk was identified. 

19The threat made to Mr Cleary about Mr McCuskey was also offensive.  Mr Dorian continued to characterise the legitimate issue raised as a complaint, in effect whinging, in circumstances where he knew it to be legitimate and his only response was that if the issue was raised again the following day, then McCuskey would be terminated.  That is:  "He can pack his bags and fuck off."

20On the plea, Mr Hallowes of Senior Counsel on behalf of the employer, submitted that there was much overlap between charges 1 and 2, as they emanated from the same phone call to Mr Cleary.  Then in relation to the words uttered and the meeting on 12 March, it was submitted that they followed closely after the call of 11 March.  As such, Mr Hallowes submitted that I could treat the matter as a single continuing incident. 

21I do not consider this to have been a single continuous incident.  Although the health and safety concern raised by each of Mr Longley and Mr McCuskey related to the same issue, the threat made about each man threatened each man's employment and livelihood separately.  Moreover, the threat on 12 March was made after the men told Dorian that WorkSafe should decide the safety issue.  This addition of WorkSafe adds a dimension that was not present in the threat made on 11 March.

22It is timely at this point to take into account Mr Longley's victim impact statement.  It is significant that Mr Longley stated that he now has reservations, if not real regret, for taking on the role as a health and safety representative.  Mr Longley stated that he would not advise anyone to put up their hand to be an HSR.  Mr Longley was relatively new to the workforce at the time and certainly new to his role as a health and safety representative.  The Occupational Health and Safety Act encourages the appointment of health and safety representatives to act as a voice for employees, to be vigilant and fearless in raising health and safety issues.  It is a serious instance of offending when a belligerent agent, on behalf of the employer, seeks to stymie those who raise health and safety issues and when they are doing so as part of their role as provided by parliament.

23As I have noted, the offending in respect to charges 4, 5, 6 and 7 relates to one threat made by Mr Dorian at the meeting on 12 March but it was made to four men present.  It follows from what I have said earlier that I consider that as this was a threat made to the employment of each of the four men individually, I should sentence upon that basis and not upon the basis that I should or can sentence compendiously or aggregately, as if it was one charge.

24Moreover, it is necessary to make the following observation.  Mr Longley and Mr McCuskey were part of the group that went to see Mr Dorian on 12 March; and for the second time in a period of nine or ten hours, their employment was threatened.  The repetition of the threat of termination singled out charges 4 and 5 as somewhat more serious aspects of the offending.  In this instance, the threat arose from the prospect of the men calling in the regulator to decide whether the method proposed by the employer was safe.  I have also taken into account the victim impact statements of Stephen Cave and Dean Unger. It is apparent that these men were affected by the threats made directly to them.

25I point out that part of the powers of a health and safety representative are to accompany inspectors during an inspection of a workplace in relation to a health and safety issue.  What was proposed by the workers on 12 March remained part of their own bona fide concern over the health and safety issue.  Given the imminence of the need to load the heavy top hats and given the nature of the stalemate between the employer and the employees, the suggestion of involving an inspector was reasonable and appropriate.  Indeed, it was never suggested by the defence that it was otherwise - in fact, Mr Dorian falsely tried to take credit for involving WorkSafe himself.  It is apparent that the jury rejected Mr Dorian's evidence on this and other points. 

26In the circumstances, it must be made plain to employers that threats to employees which involve a form of intimidation to prevent communication with WorkSafe simply will not be tolerated.  After the intervention of the Maritime Union, who contacted Mr Dorian's superior, Mr Dorian retracted the suggestion of a reform list actually existing.  The Crown concedes that this somewhat mitigates the offending, as I say, at least to some extent.  Nevertheless, I conclude that this offending in respect to these four charges remain serious instances of workplace discrimination.

27Finally then, on the matter of the objective gravity of the offending, once WorkSafe intervened and in effect, decided that the employer's proposed work around solution was unsafe, Mr Dorian was readily able to provide a solution which was not available to the team leaders.  Essentially, on his own evidence, Mr Dorian said he fixed the matter in a few minutes.

28It is apparent from all that I have said that I consider the contraventions on 11 and 12 March 2009 to each be serious instances of this type of offending.  Further, given the severe nature of the threats made, that is the termination of employment, and the fact that the threats were made in the knowledge that a significant bona fide safety issue had been raised, the culpability of the employer is high.

29The accused company's conduct was marked by its intention on 11 and 12 March to intimidate workers.  The message on 11 March was delivered in a particularly hostile and aggressive manner.  Such conduct must be marked by denunciation. I denounce the objectives sought to be achieved by the messages communicated by the port manager on behalf of the employer and the aggressive, offensive bullying and intimidating manner in which those messages were communicated.  Given the protective nature of the legislation, matters put in mitigation on behalf of the accused employer must take a backseat role.  However, I take into account that the organisation has subsequently put policies and training in place which expressly deal with workplace bullying, discrimination and discrimination against employees for raising health and safety concerns.

30I also take into account that there have been no subsequent matters involving the accused company since the offending underpinning these charges in March 2009.  It is encouraging that a significant proportion of the Patrick's workforce have now been trained in both the code of conduct expected of them and the company's anti-bullying, harassment and discrimination policies.

31Although it is apparent that almost ten years have passed since the offending occurred, Mr Hallowes put no particular reliance upon delay as a mitigating factor.  Mr Dunn of Queen's Counsel on behalf of the Crown, provided a chronology of events since the offending occurred.  Whilst he submitted that both sides bore responsibility for the delays that have occurred, the Crown ultimately submitted that the delay in this matter was of limited significance. I agree, the chronology of events in this matter speaks for itself in this respect. 

32The accused company does admit a prior conviction from New South Wales.  Although it was not a discrimination matter, it was a workplace safety issue.  In the circumstances, this enlivens the issue of specific deterrence.  Overall, I have some regard to the prior conviction and penalty imposed on that occasion but I do not consider that it ought to significantly influence the penalty I impose in this case.

33I was referred to the decision of Osborn J, as he then was, in Patrick Stevedores v Chasser and then to the penalty imposed in the case by Magistrate Carlin.  These were provided as a form of comparable case, that is, a previous case of discrimination where financial penalties were imposed after pleas of guilty in the Magistrates' Court.  There are a number of differences between the facts of that case and those here, not the least of which are that the finding of guilt here is made after trial.  Ultimately, I am required to determine the appropriate penalty to be imposed in the circumstances of this case and I cannot be restricted or overly influenced by previous sentences.  I do not consider, as Mr Hallowes submitted, that an aggregate penalty on these two charges is appropriate.  Rather, as Mr Dunn submitted on behalf of the Crown, given the manner in which the offending occurred, it is necessary for me to have regard to the principles of proportionality and totality in relation to the penalties that I impose.

34The penalties that I impose are as follows:  On Charge 1, the company is convicted and fined the sum of $80,000.  On Charge 2, the company is convicted and fined the sum of $75,000.  On Charge 4, the company is convicted and fined the sum of $85,000.  On Charge 5, the company is convicted and fined the sum of $85,000.  On Charge 6, the company is convicted and fined the sum of $75,000.  On Charge 7, the company is convicted and fined the sum of $75,000.  That makes a total of $475,000.

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