SafeWork NSW v Qantas Ground Services Ltd (No. 2)

[2023] NSWDC 146

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Qantas Ground Services Ltd (No. 2) [2023] NSWDC 146

Hearing dates:

12 April 2023

Date of orders:

10 May 2023

Decision date:

10 May 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Dismiss the application dated 1 February 2023 brought by the defendant.

(2)   Reserve the costs of the application.

Catchwords:

CRIMINAL PROCEDURE — application for stay of proceedings unless prosecutor elects to withdraw two of the four summonses — application made after commencement of trial — summonses plead a different dominant reason for same conduct — alternative charges — whether presumption under s 110(2) of the Work Health and Safety Act 2011 (NSW) has arisen — whether unfair to defendant — autrefois acquit

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 247V, 247W, 257B

District Court Rules 1973 (NSW), r 10, Pt 53

Work Health and Safety Act 2011 (NSW), ss 85, 104, 105, 106, 110, 233

Cases Cited:

SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540

Texts Cited:

Judicial Commission of NSW, Criminal Trial Courts Bench Book

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Qantas Ground Services Pty Ltd (Defendant)

Representation:

Counsel:
P McDonald SC with M Moir (Prosecutor)
B Hodgkinson SC with B Rauf (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Ashurst (Defendant)

File Number(s):

2021/284149, 2021/284164, 2021/284172, 2021/284183

Judgment

Introduction

1. This judgment concerns an application filed by the defendant on 1 February 2023 seeking a stay of all four proceedings, unless the prosecutor elects to withdraw the Summonses in case numbers 2021/284164 and 2021/284183 or the Summonses in case numbers 2021/284149 and 2021/284172.

2. The application is identical to an earlier Motion brought by the defendant, which I dealt with in my judgment delivered on 8 November 2022: SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540. That earlier application was brought before the trial started. This application is brought during the running of the trial, at a point where the prosecutor has closed its case and called all of its evidence.

Background

3. The prosecutor SafeWork NSW (SafeWork) filed four Summonses on 6 October 2021. Each Summons charges the defendant Qantas Ground Services Pty Ltd (Qantas) with engaging in discriminatory conduct for a prohibited reason contrary to s 104(1) of the Work Health and Safety Act 2011 (NSW) (the Act).

4. Qantas has pleaded not guilty to all four Summonses. All four charges relate to conduct towards an employee Mr Seremetidis, whose duties involved cleaning and servicing aircraft arriving in Sydney. Each Summons pleads as follows:

“1. At all material times, Qantas Ground Services Pty Ltd (QGS) being a corporation, was a person within the meaning of section 104 of the Work Health and Safety Act 2011 (the Act).

2.   At all material times QGS was a wholly owned subsidiary of Qantas Airways Limited (Qantas) and provided labour hire to Qantas.

3.   On or about 24 April 2014, Mr Theocharis Seremetidis (Mr Seremetidis) commenced employment with QGS. Mr Seremetidis was employed by QGS in the position of Ground Crew, Fleet Presentation, at Sydney International Airport (SIT). Mr Seremetidis’ duties involved cleaning and servicing aircraft arriving at SIT.

4.   In December 2017, Mr Seremetidis was elected as a Health and Safety Representative (HSR) for the SIT Fleet Presentation Group (the work group). On 20 April 2018, Mr Seremetidis completed a five day HSR training course.

5.   At all material times Mr Seremetidis continued to act in his capacity as a HSR.

6.   Between 26 January 2020 and 2 February 2020, workers including Mr Seremetidis raised issues and concerns with QGS regarding the risk of workers in the work group contracting COVID-19 whilst they were cleaning and servicing passenger planes arriving at SIT from China.”

Explanation by the Prosecutor: Alternative Charges

5. Mr Moir, who appeared for SafeWork on 19 October 2022, informed the court that SafeWork would not be withdrawing any of the four Summonses. He explained that SafeWork would be seeking convictions on the two “Directions” Summonses (as explained below). If SafeWork fails to obtain convictions on the Directions Summonses then it will seek, in the alternative, convictions on the two “Issues and Concerns” Summonses (also explained below).

6. SafeWork submitted that it had brought two sets of charges in the alternative. It will press for Qantas to be convicted of the two charges pleaded in the Directions Summonses. In the event that the court convicts Qantas, the alternative charges being the Issues and Concerns Summonses will be dismissed by the court. However, if SafeWork is unsuccessful on the Directions Summonses, it will seek convictions on the alternative charges being the Issues and Concerns Summonses. SafeWork will not be pursuing convictions in respect of all four Summonses.

The Act

7. Section 104 of the Act as in force in February 2020 provided as follows:

“104 Prohibition of discriminatory conduct

(1) A person must not engage in discriminatory conduct for a prohibited reason.

Maximum penalty:

(a) in the case of an individual - $100,000, or

(b) in the case of a body corporate - $500,000.

(2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct.

Note: Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.”

8. Section 105 of the Act defines discriminatory conduct. The definition includes:

1. If the person puts a worker to his or her detriment in the engagement of the worker – s 105(1)(a)(iii).

2. If the person alters the position of the worker to the worker’s detriment – s 105(1)(a)(iv).

9. Section 105(2) of the Act provides as follows:

“(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.”

10. Section 106 of the Act defines “prohibited reason”. Discriminatory conduct is engaged in for a prohibited reason if it is engaged in because (inter alia):

1. The worker exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee – s 106(c).

2. The worker raises or has raised or proposes to raise an issue or concern about work health and safety with other workers – s 106(h)(vi).

11. Section 110 of the Act deals with proof of discriminatory conduct. It provides:

“110 Proof of discriminatory conduct

(1) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution--

(a) proves that the discriminatory conduct was engaged in, and

(b) proves that a circumstance referred to in section 106 (a)-(j) existed at the time the discriminatory conduct was engaged in, and

(c) adduces evidence that the discriminatory conduct was engaged in for a prohibited reason.

(2) The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves on the balance of probabilities, that the reason was not the dominant reason for the conduct.

(3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.”

“Directions” Summonses

2 February 2020 Conduct

12. In proceedings 2021/284164 the Summons alleges that:

1. On 2 February 2020 Qantas stood down Mr Seremetidis from his employment.

2. Mr Seremetidis was directed not to attend work until an investigation was completed by Qantas.

3. In standing him down, Qantas altered the position of Mr Seremetidis to his detriment in that he no longer had access to paid overtime or the workplace generally.

4. Qantas engaged in discriminatory conduct within the meaning of s 105 of the Act towards Mr Seremetidis.

5. This conduct was engaged in for a prohibited reason within the meaning of s 106 of the Act.

6. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had exercised or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act.

13. Section 85(1) of the Act provides that a HSR may direct a worker to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

7 February 2020 Conduct

14. In proceedings 2021/284183 the Summons alleges that:

1. On 7 February 2020, in addition to having already stood down Mr Seremetidis from his employment, Qantas threatened to take disciplinary action against Mr Seremetidis, including a threat to issue him with a warning or to terminate his employment.

2. Qantas engaged in discriminatory conduct within the meaning of s 105 of the Act towards Mr Seremetidis.

3. This conduct was engaged in for a prohibited reason within the meaning of s 106 of the Act.

4. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had exercised or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act.

“Issues and Concerns” Summonses

15. In proceedings 2021/284149 the charge is that on 2 February 2020 Qantas stood down Mr Seremetidis from his employment and altered his position to his detriment. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China.

16. In proceedings 2021/284172 the charge is that on 7 February 2020, in addition to having already stood down Mr Seremetidis from his employment, Qantas threatened to take disciplinary action against him, including a threat to issue him with a warning or to terminate his employment. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China.

A Preliminary Point

17. In Written Submissions (MFI 33) SafeWork pointed out that the application referred to r 10 of Pt 53 of the District Court Rules 1973 (NSW). That rule is concerned with pre-trial applications. The present application is made during the running of the trial.

18. In Written Submissions in Reply (MFI 34) Qantas conceded that the reference to r 10 was inappropriate. Instead, Qantas relied on s 247V(1) of the Criminal Procedure Act 1986 (NSW) (the CP Act) which provides:

“On or after the commencement of the trial or sentencing hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial or sentencing hearing.”

19. Safework submitted that Qantas should not be permitted to advance the application because in the decision given last November, binding orders were made dismissing an identical application. The prosecutor referred to s 247W of the CP Act, which refers to preliminary orders being binding on the presiding judge, unless “it would not be in the interests of justice for the order to be binding”.

20. I accept the submission of Qantas that I have power under s 247V of the CP Act to consider this application made during the running of the trial.

Primary Submission for Qantas

21. Qantas submitted (MFI 32, par 2.6) that the prosecutor alleges that on the same day, the defendant engaged in the same discriminatory conduct but for two different prohibited reasons. Qantas submitted that s 110 of the Act would then operate so that each of the two alleged prohibited reasons arising out of the same circumstances on the same day would be presumed to be the dominant reason for that same conduct on that same day. Qantas submitted that “such a result is impermissible”. No authority was cited for that proposition.

Has the Section 110(2) Presumption Yet Arisen?

22. Qantas submitted (MFI 32, par 4.4) that since the prosecutor has closed its case, the presumption imposed by s 110 of the Act operates from this point in the proceedings. The onus is reversed and Qantas is now required to prove that the alleged reason for the discriminatory conduct was not the dominant reason for the conduct.

23. In oral submissions (Tcpt 936/42-937/5) senior counsel for SafeWork argued that the presumption had not necessarily arisen, as s 110(1) of the Act provides that the section only applies in proceedings if the prosecution:

“(a)    Proves that the discriminatory conduct was engaged in, and

(b) Proves that a circumstance referred to in s 106(a)-(j) existed at the time the discriminatory conduct was engaged in, and

(c)   Adduces evidence that the discriminatory conduct was engaged in for a prohibited reason.”

24. No concession was made by Qantas at this stage that such matters had been proved, or that such evidence had been adduced. Nor was there any analysis by either party as to whether the necessary precursors in s 110(1) of the Act had been satisfied so that the presumption in s 110(2) of the Act operated. Further, the court would not engage at this stage, even if asked, upon making findings in relation to the three matters set out in s 110(1) of the Act.

25. Seen from the point of view of the defendant, Qantas is now facing a choice of whether to go into evidence, and in particular, whether it needs to call any evidence to rebut the presumption of a dominant purpose, if the prosecutor has satisfied the requirements of s 110(1) of the Act. Seen from the point of view of SafeWork, the presumption has not arisen, as the necessary precursors in s 110(1) of the Act have not even been debated, let alone established by a finding of the court.

26. Whether or not the presumption has arisen is the same as debating whether Schrödinger’s cat is alive or dead. It all depends upon the point from which you view the issue.

Unfairness

27. Qantas submitted (MFI 32, par 4.5) that since there can only be one dominant reason in law for a particular course of conduct, “the law does not permit a prosecutor to allege two different prohibited reasons for the same discriminatory conduct, even in the alternative”. There was no authority cited for that proposition.

28. Further, Qantas submitted (MFI 32, par 4.7), that where at law there can only be one dominant reason, it would be “unfair to presume two reasons to be dominant and require a defendant to prove that neither was the dominant reason”. Qantas pointed out that since all charges were being heard together, submissions would have to be made regarding the alternate charges at the same time as submissions are made regarding the primary charges. Qantas submitted as follows:

“In making those submissions on the alternate, the defendant would not have the benefit of the court’s reasons in relation to the primary charges. The court’s reasoning on the primary charges may raise matters that the defendant would want to deal with in the relation to the alternate charges, but it would be denied the opportunity to do so.”

29. In response, SafeWork submitted (MFI 33, pars 29-30) as follows:

“29.   Qantas’ argument that ‘submissions would have to be made regarding the alternative charges at the same time as submissions are made regarding the primary charges’ (DOS at [4. 71) does not give rise to any unfair prejudice toward Qantas, as this situation applies to any defendant in criminal proceedings charged with alternate offences. The submissions would be made in the context of the charges being charged in the alternative.

30.   Qantas’ argument as to unfairness appears based on the proposition that it would be unable to address any matters relating to the alternate charges arising from the Court's reasoning on the primary charges: DOS at [4.7]. No authority is cited to support this argument. The underlying proposition also overstates the position to suggest that the Defendant should not be ‘deprived the opportunity’ to address the Court once its reasoning is disclosed on the primary charges. Qantas has every opportunity to address the Court on all matters relating to both the primary and alternate charges prior to the Court's final judgment.”

30. In oral submissions, senior counsel for SafeWork pointed out that the court was not going to be asked to make a finding that the primary offence had been proven for the pleaded dominant reason, and that the alternative offence had also been proved for the pleaded dominant reason. They are charges in the alternative (Tcpt 940/30).

31. Senior counsel for SafeWork submitted that where in any criminal trial there are a number of charges and a number of discreet issues “parties do not have the luxury or the advantage of a piecemeal approach by the court” (Tcpt 935/22).

32. Senior counsel for SafeWork also referred to authorities which say that alternative counts can be pleaded, which include alternative counts that are mutually exclusive (Tcpt 941/1-10).

33. In a jury trial, alternative counts are left to the jury, which has the task of whether or not to find a defendant guilty on the primary charge or to acquit on the primary charge and deliver a verdict on the alternative count. I see no reason why summary trials are any different to jury trials in this regard.

34. It would be necessary for this court to give itself a direction in accordance with the suggested direction for an alternative verdict set out in par 2-2.10 of the Criminal Trial Courts Bench Book published by the Judicial Commission of NSW. That direction is as follows:

“It is a matter for you how you approach your task in determining the verdict or verdicts to give on the principal charge in the indictment and any alternative charge available for your consideration. Of course, if you are not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence being [state offence], then you must find the accused not guilty of that charge. You may then consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charge [or charges] which are open to you. As I have indicated to you, the ingredients of the principal offence and the alternative charge [or charges] are not identical. If you find that the Crown has proved beyond reasonable doubt each of the elements of the alternative offence [or any of them] then you may find the accused guilty of the alternative count [or any of them].

However, I direct you that you should not regard the availability of an alternative count as an invitation to compromise your verdict. For example, it would be quite wrong for you to find the accused guilty of the alternative count [or any of them] simply because some of you found that the accused was guilty of the principal count but others were not so satisfied and would enter a verdict of not guilty of that charge. It would be unfair and contrary to your oaths [or affirmations] to decide to break the deadlock by convicting the accused on the alternative count [or any of them].”

35. I accept the submission of SafeWork that there is no unfairness to the defendant arising from the need to make submissions at the conclusion of the case in relation to the primary charges and, in the alternative, the alternative Summonses. The defendant will have to make a forensic decision as to the evidence (if any) that it calls in relation to the dominant reason alleged on the primary charge and the dominant reason alleged on the alternative charge. Parliament has decided that the defendant bears an evidentiary onus in relation to these matters, but there is nothing in the legislation which says that only one dominant reason can be alleged if alternative charges are brought, as they can be pursuant to s 233 of the Act.

35. In any criminal trial where there are multiple issues and alternative charges, the defendant is faced with some difficult choices. However, that is not unfair, as it is simply a result of the criminal trial process, and in this case, the reversal of an onus of proof by statute. The forensic decisions to be made by Qantas, arising from facing alternative charges, and the operation of s 110 of the Act, have been looming on the horizon ever since the charges were brought.

Autrefois Acquit

37. Qantas also submitted that if at the end of the trial the court found that the prosecutor had not established the primary charges, then the defendant would have had an argument that the dismissal of this charge would operate as a plea in bar to the court hearing the alternative charges. The plea in bar would be in the nature of a plea of autrefois acquit. Senior counsel for Qantas submitted that the opportunity to raise such a plea would be denied to the defendant, and that such denial would not be consistent with the proper administration of justice (Tcpt 931/45).

38. I fail to see why that is so. At the conclusion of the case, the defendant will have the opportunity to make submissions on any matter of fact or law which it chooses. One submission which it may wish to make is that, if the primary charges are dismissed, then such dismissal operates as a plea in bar to the alternative charges. That is a pure matter of law which can be argued as a complete answer to the alternative charges. No doubt a submission would then be made, very much in the alternative, that based upon the evidence, the prosecutor had not made out the alternative counts.

39. Senior counsel for Qantas characterised that approach as “boxing at shadows” (Tcpt 932/13). It was submitted that this would not be a good use of the court’s time. I reject those submissions. It is not unusual in any litigation for arguments to be raised in the alternative, which then have to be dealt with by a trial judge. I can see no practical bar to a plea of autrefois acquit being argued at the conclusion of the trial. Such a plea would be based (no doubt) upon the submission of the defendant, that the primary charges have not been established by the prosecutor. The argument, simply put, would be that as a matter of law, if the court is not satisfied about the primary charges, then the defendant is entitled to a verdict on the alternative counts. The opportunity to put that submission would not be denied, and could not be denied, to the defendant. Senior counsel for SafeWork conceded that such an argument could be raised (Tcpt 944/10).

Is the Situation Now Any Different to November 2022?

40. The submissions for Qantas pointed out that the decision of November 2022 was given at a time when the trial had not started, whereas the present application has been made after the prosecutor has called all of its evidence. That is just a fact, and there was no submission at all about any aspects of the evidence called by the prosecutor which had put the defendant in a position different to that which it occupied prior to the first day of the trial.

Conclusions

41. For the above reasons, I propose to dismiss the defendant’s application.

42. SafeWork asked me to dismiss the application with costs in its favour (MFI 33 par 43). The defendant sought an order for costs in its favour if the application succeeded (MFI 34 par 6.2). My present view is that costs should follow the event, and the defendant should pay the prosecutor’s costs of the application. However, I am unsure whether I can make a costs order at this interlocutory stage of the proceedings, having regard to s 257B of the Criminal Procedure Act 1986 (NSW). That matter was not addressed in submissions. In those circumstances I will reserve the costs of this application, to be dealt with at the conclusion of the proceedings.

Orders

43. In each of the four matters, the orders of the court are:

1. Dismiss the application dated 1 February 2023 brought by the defendant.

2. Reserve the costs of the application.

Decision last updated: 10 May 2023