SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3)

[2023] NSWDC 468

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3) [2023] NSWDC 468

Hearing dates:

14, 15, 16, 17, 18, 21, 22, 23, 24, 25 November 2022
14, 15 December 2022
12 April 2023
10 May 2023
28, 30, 31 August 2023
1 September 2023
3 November 2023

Date of orders:

16 November 2023

Decision date:

16 November 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In proceedings 2021/284164 (the “Directions” Amended Summons in relation to 2 February 2020):

(1)   The elements set out in the Amended Summons have been proved beyond reasonable doubt.

(2)   I find the defendant Qantas Ground Services Pty Ltd guilty.

(3)   The matter will be listed for a Sentence Hearing on a date convenient to the parties.

(4)   Costs are reserved for later determination.

In proceedings 2021/284149 (the “Issues and Concerns” Summons in relation to 2 February 2020):

(1)   Summons dismissed.

(2)   Costs are reserved for later determination.

In proceedings 2021/284183 (the “Directions” Amended Summons in relation to 7 February 2020):

(1)   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

(2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

(3)   Costs are reserved for later determination.

(4)   The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

In proceedings 2021/284172 (the “Issues and Concerns” Summons in relation to 7 February 2020):

(1)   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

(2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

(3)   Costs are reserved for later determination.

(4)   The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

Catchwords:

CRIMINAL LAW – elements of offence – whether defendant engaged in discriminatory conduct – whether for a prohibited reason – whether reason was the dominant reason – alternative charges

CRIMINAL LAW – prosecution – work health and safety – discriminatory conduct – alter position of worker to worker's detriment – what constitutes a threat – health and safety representatives – power to direct cessation of unsafe work – whether there was a reasonable concern that the work would expose workers to a serious risk, emanating from an immediate or imminent exposure to a hazard – whether there was consultation and attempt to resolve issue – legal consequences of direction to cease unsafe work where there had been no required consultation

OTHER – health and safety representative directed workers to cease cleaning planes arriving from China – risk of contracting COVID-19 from surfaces – health and safety representative stood down because he gave direction to cease unsafe work

Legislation Cited:

Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 46, 81

Criminal Appeal Act 1912 (NSW), s 5AE

Criminal Procedure Act 1986 (NSW), s 133(2)

Evidence Act 1995 (NSW), s 165

Fair Work Act (2009) (Cth)

Work Health and Safety Act 2011 (Qld), s 85

Work Health and Safety Act 2011 (NSW), ss 4, 46, 47, 48, 49, 50, 66, 68, 70, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 93, 99, 104, 105, 106, 110

Work Health and Safety Regulation 2017 (NSW), cl 24

Cases Cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092; (2009) 189 IR 165

CFMMEU v Sydney International Container Terminals Pty Ltd [2020] FWC 4983

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591

Constantanidis v R [2022] NSWCA 4

Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited (No. 2) [2015] FCA 1088

Department of Public Prosecutions (VIC) v ACME Storage Pty Ltd [2017] VSCA 90

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302

Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11

State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Victorian WorkCover Authority v Patrick Stevedoring Pty Ltd [2011] VMC 62

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Texts Cited:

New England Journal of Medicine, “Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany”, 30 January 2020

Australian Government Department of Health, “Novel coronavirus (2019-nCoV)”

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
P McDonald SC with M Moir (Prosecutor)
B D 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

The Task of this Court

Discriminatory Conduct

The “Directions” Summonses

2 February 2020 Conduct

7 February 2020 Conduct

The “Issues and Concerns” Summonses

2 February 2020 Conduct

7 February 2020 Conduct

Relevant Provisions of the WHS Act

Consultation under the WHS Act

Health and Safety Representatives under the WHS Act

Issue Resolution under the WHS Act

Right to Cease or Direct Cessation of Unsafe Work under the WHS Act

Provisional Improvement Notices under the WHS Act

The Lead Up to 2 February 2020

24 January 2020

25 January 2020

26 January 2020

27 January 2020

28 January 2020

29 January 2020

30 January 2020

31 January 2020

1 February 2020

2 February 2020

3 February 2020

4 February 2020

5 February 2020

6 February 2020

7 February 2020

Consideration of the Letter of Allegations

Were the 7 February 2020 Allegations the same as the 2 February 2020 Allegations?

What was the Reason for Standing Down Mr Seremetidis on 2 February 2020?

21 February 2020

3 March 2020

4 March 2020

24 March 2020

30 March 2020

2 February 2021

Proceedings 2021/284164 : The “Directions” Summons re 2 February 2020

Was there Discriminatory Conduct by QGS?

Did Mr Seremetidis Exercise a Power under the WHS Act?

Reasonable Concern

Exposure To Serious Risk

Immediate or Imminent Exposure to a Hazard

Consultation – a Necessary Precursor

Consideration: The Directions given by Mr Seremetidis

Fair Work v CFMMEU

Consideration

Dominant Reason

Proceedings 2021/284149 : The “Issues and Concerns” Summons re 2 February 2020

Proceedings 2021/284183 : The “Directions” Amended Summons re 7 February 2020

Proceedings 2021/284172 : The “Issues and Concerns” Summons re 7 February 2020

Did part of the Letter of Allegations constitute a Threat?

Orders

Judgment

Introduction

1. In the early months of 2020 the world was becoming aware of a serious health risk posed by a virus. China appeared to be the initial epicentre of the virus, but it was spreading through the world by international air travel. Airlines in particular were concerned by the spread of the virus.

2. The events which are the subject of these prosecutions occurred in January and early February 2020. At that time the virus was simply called the Coronavirus, so that is how it will be referred to in this judgment. It was not until later in 2020 that it was formally given the name COVID-19. It was also later in the year that a pandemic was officially declared.

3. The defendant Qantas Ground Services Pty Ltd (QGS) was a wholly owned subsidiary of Qantas Airways Limited (Qantas) and was a part of the Qantas Group. QGS provided labour hire services to the Qantas Group.

4. Mr Theo Seremetidis was employed by QGS to work at Sydney International Terminal (SIT) as a high lift truck driver. Mr Seremetidis was also an elected Health and Safety Representative (HSR) for the SIT Fleet Presentation Group provided by QGS to Qantas.

5. On 2 February 2020 QGS stood down Mr Seremetidis from his employment. He was directed not to attend work until an investigation was completed by QGS.

6. By an Amended Summons filed in proceedings 2021/284164, SafeWork NSW (SafeWork), being the regulator as defined by s 4 of the Work Health and Safety Act 2011 (NSW) (the WHS Act), charged QGS with engaging in discriminatory conduct for a prohibited reason, contrary to the WHS Act. The allegation in those proceedings was that on 2 February 2020 QGS altered the position of Mr Seremetidis to his detriment and that the dominant reason for standing him down was a prohibited reason, because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the WHS Act.

7. For reasons set out below, I have come to the conclusion that the elements of this offence have been established beyond a reasonable doubt and that QGS is guilty of the offence charged.

8. An alternative charge was brought in relation to the events of 2 February 2020, in proceedings 2021/284149. Since I will make a finding that QGS is guilty of the principal charge brought in proceedings 2021/284164, I will not go on to consider whether the alternative charge has been established. That charge will be dismissed without any consideration of the merits, as requested by the prosecutor.

9. SafeWork also brought proceedings against QGS arising out of events which occurred on 7 February 2020. The principal charge, brought in proceedings 2021/284183, was that QGS engaged in discriminatory conduct for a prohibited reason on 7 February 2020, contrary to the WHS Act. In particular, it was said that QGS threatened to take disciplinary action against Mr Seremetidis, because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the WHS Act.

10. For reasons set out below, I have come to the view that SafeWork has failed to establish that QGS made a threat against Mr Seremetidis to take disciplinary action on 7 February 2020, as alleged. I will therefore find that this charge has not been proved.

11. An alternative charge was brought in relation to the events of 7 February 2020. In proceedings 2021/284172, SafeWork alleged that the dominant reason for threatening Mr Seremetidis with dismissal or disciplinary warning was a prohibited reason, 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.

12. For reasons set out below, I have come to the view that SafeWork has failed to establish that QGS made a threat against Mr Seremetidis to take disciplinary action, on 7 February 2020, as alleged. I will therefore find that this charge has not been proved.

The Task of this Court

13. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict, free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

14. The prosecution bears the onus of proving the guilt of the defendant at all times, subject to one matter where the defendant bears the onus of proof. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt. In this particular case there is a reverse onus upon the defendant on one issue, arising from s 110 of the WHS Act.

15. The defendant is presumed by law to be innocent of the offence unless and until the evidence which I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

16. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.

17. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

18. I must consider the factual situation in late January and early February 2020. I must determine the issues without the benefit of hindsight and only having regard to what was known at the relevant time.

19. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4. In the present case many of the witnesses worked for the defendant but were made redundant later in the pandemic. Some witnesses still work for QGS. I must take into account that some of the memories of the witnesses might be influenced by what they now know about Coronavirus, rather than what they knew at the relevant time.

20. I say straight away that I formed the impression that all witnesses were doing their best to tell the truth. I regard any discrepancy between their oral evidence and any prior statements to be due to lapse of time. In particular I formed a favourable impression of Mr Seremetidis. His evidence in chief and in cross-examination extended over many days. His memory of events was detailed and largely accurate, when assessed against contemporaneous documents. I formed the view that he attempted to carry out his duties as a HSR conscientiously and carefully.

Discriminatory Conduct

21. Section 104 of the WHS 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.”

22. Thus the elements of the offence are that a person must not:

1. engage in discriminatory conduct,

2. for a prohibited reason,

3. where the prohibited reason is the dominant reason for the discriminatory conduct.

23. Section 105 of the WHS 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).

24. Section 105(2) of the WHS 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.”

25. Section 106 of the WHS 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 worker health and safety with other workers – s 106(h)(vi).

26. Section 110 of the WHS 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.”

The “Directions” Summonses

2 February 2020 Conduct

27. In proceedings 2021/284164 the Amended Summons alleges that:

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

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

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

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

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

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

28. Section 85(1) of the WHS 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. This will be discussed further below.

7 February 2020 Conduct

29. In proceedings 2021/284183 the Amended Summons alleges that:

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

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

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

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

30. As previously recited, the “Directions” Summonses are the principal charges pursued by SafeWork.

The “Issues and Concerns” Summonses

2 February 2020 Conduct

31. In proceedings 2021/284149 the charge is that on 2 February 2020:

1. QGS stood down Mr Seremetidis from his employment and altered his position to his detriment.

1. 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.

7 February 2020 Conduct

32. In proceedings 2021/284172 the charge is that on 7 February 2020 in addition to having already stood down Mr Seremetidis from his employment:

1. QGS threatened to take disciplinary action against him, including a threat to issue him with a warning or to terminate his employment.

2. 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.

33. The “Issues and Concerns” Summonses are alternative, or “back-up” charges to the “Directions” Summonses. A last-minute attempt by SafeWork to make the “Issues and Concerns” Summonses the principal charges and the “Directions” Summonses the alternative charges was not permitted (see Ruling dated 30 August 2023). SafeWork submitted and QGS accepted that: if there was a finding of guilt on a principal charge then the alternative charge should be dismissed; if a principal charge was not proved then the court should go on to consider the alternative charge.

Relevant Provisions of the WHS Act

Consultation under the WHS Act

34. Part 5 of the WHS Act deals with “Consultation, representation and participation”. Contained within Divisions 1 and 2 are the following sections:

“46   Duty to consult with other duty holders

If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.

Maximum penalty—

(a)  in the case of an individual—230 penalty units, or

(b)  in the case of a body corporate—1,155 penalty units.

Division 2 Consultation with workers

47   Duty to consult workers

(1)  The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—

(a)  in the case of an individual—230 penalty units, or

(b)  in the case of a body corporate—1,155 penalty units.

(2)  If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3) The agreed procedures must not be inconsistent with section 48.

48   Nature of consultation

(1)  Consultation under this Division requires—

(a)  that relevant information about the matter is shared with workers, and

(b)  that workers be given a reasonable opportunity—

(i)  to express their views and to raise work health or safety issues in relation to the matter, and

(ii)  to contribute to the decision-making process relating to the matter, and

(c)  that the views of workers are taken into account by the person conducting the business or undertaking, and

(d)  that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2)  If the workers are represented by a health and safety representative, the consultation must involve that representative.

49   When consultation is required

Consultation under this Division is required in relation to the following health and safety matters—

(a)  when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b)  when making decisions about ways to eliminate or minimise those risks,

(c)  when making decisions about the adequacy of facilities for the welfare of workers,

(d)  when proposing changes that may affect the health or safety of workers,

(e)  when making decisions about the procedures for—

(i)  consulting with workers, or

(ii)  resolving work health or safety issues at the workplace, or

(iii)  monitoring the health of workers, or

(iv)  monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v)  providing information and training for workers, or

(f)  when carrying out any other activity prescribed by the regulations for the purposes of this section.”

35. The words “consult” and “consultation” are not defined in the WHS Act. The Macquarie Dictionary gives the following meaning for the verb “consult”:

1. To seek counsel from; ask advice of.

2. To refer to for information.

3. To have regard for a person’s interest, convenience etc in making plans.

4. To consider or deliberate; take counsel; confer.

36. The Macquarie Dictionary defines the noun “consultation” to mean:

1. The act of consulting; conference.

2. A meeting for deliberation.

37. In Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited (No. 2) [2015] FCA 1088 at [274] Murphy J cited the following propositions, derived from earlier cases, with approval:

“A key element of [the content of consultation] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according to the nature and circumstances of the case. In other words, what will amount to ‘consultation’ has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.”

38. In Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at p 1124 the Judicial Committee of the Privy Council considered a consultation obligation in an ordinance in respect of measures to alter local government boundaries. The Judicial Committee said:

“The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think.”

39. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 Logan J said at [45]:

“To elaborate further on the ordinary meaning and import of a requirement to ‘consult’ may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps with detailed elaboration, ‘this is what is going to be done’ and saying to that person ‘I’m thinking of doing this; what have you got to say about that?’ Only in the latter case is there ‘consultation’.”

Health and Safety Representatives under the WHS Act

40. Division 3 of Part 5 of the WHS Act deals with HSRs. A HSR may be elected “to represent workers who carry out work for the business or undertaking”: s 50 of the WHS Act.

41. The following sections of the WHS Act, in relation to HSRs, are relevant to the present proceedings:

“66   Immunity of health and safety representatives

A health and safety representative is not personally liable for anything done or omitted to be done in good faith—

(a)  in exercising a power or performing a function under this Act, or

(b)  in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act.

68   Powers and functions of health and safety representatives

(1)  The powers and functions of a health and safety representative for a work group are—

(a)  to represent the workers in the work group in matters relating to work health and safety, and

(b)  to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and

(c)  to investigate complaints from members of the work group relating to work health and safety, and

(d)  to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

(2)  In exercising a power or performing a function, the health and safety representative may—

(a)  inspect the workplace or any part of the workplace at which a worker in the work group works—

(i)  at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and

(ii)  at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and

(b)  accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and

(c)  with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and—

(i)  an inspector, or

(ii)  the person conducting the business or undertaking at that workplace or the person’s representative, and

(d)  with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(i)  an inspector, or

(ii)  the person conducting the business or undertaking at that workplace or the person’s representative, and

(e)  request the establishment of a health and safety committee, and

(f)  receive information concerning the work health and safety of workers in the work group, and

(g)  whenever necessary, request the assistance of any person.

Note—

A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.

(3)  Despite subsection (2) (f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

(a)  does not identify the worker, and

(b)  could not reasonably be expected to lead to the identification of the worker.

(4)  Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

70   General obligations of person conducting business or undertaking

(1)  The person conducting a business or undertaking must—

(a)  consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking, and

(b)  confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group, and

(c)  allow any health and safety representative for the work group to have access to information that the person has relating to—

(i)  hazards (including associated risks) at the workplace affecting workers in the work group, and

(ii)  the health and safety of the workers in the work group, and

(d)  with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and—

(i)  an inspector, or

(ii)  the person conducting the business or undertaking at that workplace or the person’s representative, and

(e)  with the consent of one or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(i)  an inspector, or

(ii)  the person conducting the business or undertaking at that workplace or the person’s representative, and

(f)  provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act, and

(g)  allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided, and

(h)  permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works, and

(i)  provide any other assistance to the health and safety representative for the work group that may be required by the regulations.

Maximum penalty—

(a)  in the case of an individual—115 penalty units, or

(b)  in the case of a body corporate—575 penalty units.

(2)  The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act.

Maximum penalty—

(a)  in the case of an individual—115 penalty units, or

(b)  in the case of a body corporate—575 penalty units.

(3)  Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.”

Issue Resolution under the WHS Act

42. Division 5 of Part 5 of the WHS Act deals with “Issue resolution”. It contains the following sections:

“80   Parties to an issue

(1)  In this Division, parties, in relation to an issue, means the following—

(a)  the person conducting the business or undertaking or the person’s representative,

(b)  if the issue involves more than one business or undertaking, the person conducting each business or undertaking or the person’s representative,

(c)  if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative,

(d)  if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.

(2)  A person conducting a business or undertaking must ensure that the person’s representative (if any) for the purposes of this Division—

(a)  is not a health and safety representative, and

(b)  has an appropriate level of seniority, and is sufficiently competent, to act as the person’s representative.

81   Resolution of health and safety issues

(1)  This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue.

(2)  The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

(3)  A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

82   Referral of issue to regulator for resolution by inspector

(1)  This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue.

(2)  A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue.

(3)  A request to the regulator under this section does not prevent—

(a) a worker from exercising the right under Division 6 of this Part to cease work, or

(b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work.

(4)  On attending a workplace under this section, an inspector may exercise any of the inspector’s compliance powers under this Act in relation to the workplace.”

Right to Cease or Direct Cessation of Unsafe Work under the WHS Act

43. Division 6 of Part 5 of the WHS Act deals with the “Right to cease or direct cessation of unsafe work”. It contains the following relevant sections:

“83   Definition of ‘cease work under this Division’

In this Division, cease work under this Division means—

(a) to cease, or refuse, to carry out work under section 84, or

(b)  to cease work on a direction under section 85.

84   Right of worker to cease unsafe work

A worker may cease, or refuse to carry out, work if the worker 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.

85   Health and safety representative may direct that unsafe work cease

(1)  A health and safety representative may direct a worker who is in a work group represented by the representative 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.

(2)  However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after—

(a)  consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work, and

(b) attempting to resolve the matter as an issue under Division 5 of this Part.

(3) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under Division 5 of this Part if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4)  The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).

(5)  The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.

(6)  A health and safety representative cannot give a direction under this section unless the representative has—

(a)  completed initial training prescribed by the regulations referred to in section 72 (1) (b), or

(b)  previously completed that training when acting as a health and safety representative for another work group, or

(c)  completed training equivalent to that training under a corresponding WHS law.

86   Worker to notify if ceases work

A worker who ceases work under this Division must—

(a)  as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative, and

(b)  remain available to carry out suitable alternative work.

87   Alternative work

If a worker ceases work under this Division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties.

88   Continuity of engagement of worker

If a worker ceases work under this Division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work—

(a)  at the same or another workplace, and

(b)  that was safe and appropriate for the worker to carry out.

89   Request to regulator to appoint inspector to assist

The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.

Note—

The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.”

Provisional Improvement Notices under the WHS Act

44. Division 7 of Part 5 of the WHS Act deals with provisional improvement notices. Section 90 of the WHS Act provides as follows:

“90   Provisional improvement notices

(1)  This section applies if a health and safety representative reasonably believes that a person—

(a)  is contravening a provision of this Act, or

(b)  has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.

(2)  The health and safety representative may issue a provisional improvement notice requiring the person to—

(a)  remedy the contravention, or

(b)  prevent a likely contravention from occurring, or

(c)  remedy the things or operations causing the contravention or likely contravention.

(3)  However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

(4)  A health and safety representative cannot issue a provisional improvement notice unless the representative has—

(a)  completed initial training prescribed by the regulations referred to in section 72 (1) (b), or

(b)  previously completed that training when acting as a health and safety representative for another work group, or

(c)  completed training equivalent to that training under a corresponding WHS law.

(5)  A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.”

45. Section 92 of the WHS Act provides as follows:

“92   Contents of provisional improvement notice

A provisional improvement notice must state—

(a)  that the health and safety representative believes the person—

(i)  is contravening a provision of this Act, or

(ii)  has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated, and

(b)  the provision the representative believes is being, or has been, contravened, and

(c)  briefly, how the provision is being, or has been contravened, and

(d)  the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.”

46. Section 93(1) of the WHS Act provides that a provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters of activities causing the contravention or likely contravention to which the notice relates.

47. Section 99(2) of the WHS Act provides that a person issued with a provisional improvement notice must comply with the notice, within the time specified in the notice.

The Lead Up to 2 February 2020

48. SafeWork tendered a Statement of Agreed Facts signed by the solicitors for the parties (PX 1, Tab 5). That Statement sets out, day by day, documents created and events which occurred. In final submissions the parties also referred to a Prosecutor’s Chronology (MFI 37) and a Defendant’s Chronology (MFI 36).

49. I propose to follow the structure of the Statement of Agreed Facts, and those two chronologies, and deal with the events which occurred day by day.

24 January 2020

50. Ms Francene Camilleri was the Operations Manager Fleet Presentation for Qantas. Ms Camilleri sent an email (PX 1, Tab 12) on 24 January 2020 addressed “Hi All”. The email sent a link to access “the most up to date information provided by Qantas Aviation Medicine and Occupational Health Services regarding the Corona Virus.”

51. The email also stated:

“Please be advised for Fleet Presentation staff, it is business as usual and no additional PPE is required. Since the P2 mask is available now for dust/smoke please feel free to use this if you feel you need to. Please ask the GSOT on shift if you require a mask.”

52. The acronym “GSOT” was used by everyone at QGS to refer to a person who held the position of a Ground Services Operational Team Manager.

25 January 2020

53. Safety toolbox talks were held with cleaning crews before they boarded an aircraft to carry out their cleaning duties. These talks were conducted by the GSOT in charge of that group.

54. At 7.55am on 25 January 2020 Mr Jesse Findlay, a GSOT, gave a safety toolbox talk (PX 1, Tab 54, p 1) on board the aircraft designated QF128, arriving from Hong Kong. He recorded the topics discussed as follows:

“•    Corona virus & wearing PPE and using hand sanitiser / Gloves

•   Offered out update from medical

•    Fielded Questions from the Team, Edie had some questions but was supportive

•    Checked Welfare”

55. At 11.00am on 25 January 2020 Mr Findlay conducted a similar toolbox talk on the bay for QF130, arriving from Shanghai (PX 1, Tab 54, p 2).

56. At 11.43am on 25 January 2020 Ms Camilleri sent an email (DX 5) to a group email address for all GSOTs. She forwarded information and an attachment, which came from Dr Russell Brown of Qantas Group Medical. Dr Brown said that “operation continues as normal with heightened awareness”. He summarised some of the information in the update, including the fact that there were now 846 confirmed cases of disease, it had spread to 9 countries, the spread within China was increasing and the World Health Organisation (WHO) continued to recommend against any trade or travel restrictions.

57. Dr Brown recorded that there had been a temporary refusal to meet a China Southern aircraft. Two possible infectious cases were reported aboard QF2 from Singapore to Sydney. Dr Brown said that “this is shifting towards a SARS type picture, although less severe at this stage”.

58. The attached update from Dr Brown referred, inter alia, to the risk of Coronavirus spreading to ground staff as “currently extremely unlikely”. The update recommended the routine use of gloves, regular and careful hand washing and routine cleaning products. Masks were not currently recommended. Dr Brown described Coronavirus as “a rapidly evolving situation”. He referred to the risk for Qantas staff and passengers as “low”.

59. At 3.20pm on 25 January 2020 Mr Michael Allworth, another GSOT, conducted a safety toolbox talk at Bay 31 (PX1, Tab 54, p 3). He discussed Coronavirus and the wearing of PPE and using hand sanitiser.

26 January 2020

60. At 7.55am on 26 January 2020 Mr Findlay conducted a safety toolbox talk for the crew servicing QF128 (PX 1, Tab 54, p 4). He discussed wearing PPE and using hand sanitiser and gloves. He offered out updated medical sheets.

61. At 10.20am on 26 January 2020 Mr Findlay conducted a safety toolbox talk for the crew servicing QF130 (PX 1, Tab 54, p 5). Mr Findlay recorded discussing wearing PPE and using hand sanitiser and gloves. He offered out updated medical sheets. He also recorded:

“Fielded questions from the Team, Some concern from Half the team but re iterated points around low risk and washing hands, They worked without issue.”

62. At 11.37am on 26 January 2020 Ms Camilleri sent an email to all of the GSOTs (DX 6). The email attached the day’s health update from Dr Brown of Qantas Group Medical. Dr Brown said that operations continued as normal “with heightened awareness”. He referred to “growing impacts on our network”. In summarising the Qantas health update, Dr Brown said: “At this stage it still appears to only spread with very close contact, and is severe mainly in high risk elderly people”.

63. At 5.30pm on 26 January 2020 Mr Allworth conducted a safety toolbox talk on Bay 24 inside a fleet van (PX 1, Tab 54, p 6). He recorded discussing Coronavirus and wearing a mask, gloves and using hand sanitiser.

27 January 2020

64. At 9.00am on 27 January 2020 Mr Reece Smith and Mr Richard Keech conducted a safety toolbox talk concerning Coronavirus inside the Bay 24 crew coaster (PX 1, Tab 54, p 7). The talk was given to “Danny and his crew”. They were allocated to flight QF118 from China. Mr Smith handed out the latest information from Qantas Group Medical. He gave the crew a box of P2 masks and reminded them about wearing gloves and washing their hands after the flight.

65. Mr Smith recorded the following in his Communication Record (PX 1, Tab 54, p 7):

“There were still some refusal, mostly from Vicky Dean. I told the crew they have two options available to them, option one is to follow the guidelines that I have just provided and carry on with their allocated task. Option two was to refuse the lawful and reasonable directive to clean this flight, however if they choose to take option two they will be subject to disciplinary action as this will be considered unprotected industrial action and refusal of a lawful and reasonable directive.”

66. Mr Smith said that he told the crew he would join them for the entire cleaning of the aircraft but he would not wear a mask.

67. On 27 January 2020 some workers raised concerns with Mr Seremetidis about cleaning an aircraft coming from China (Tcpt 197/49-198/43). Mr Seremetidis spoke to Mr Smith about the workers’ concerns (Tcpt 198/45-199/3).

68. Mr Seremetidis recorded these matters in an email sent at 2.12pm to Mr Smith (PX 1, Tab 15). Copied into the email were Mr Lau from the Transport Workers Union (TWU) and Ms Sheets-Chavolla, who was the leading hand on the crew of which Mr Seremetidis was a member. Mr Seremetidis set out his version of what he said to Mr Smith:

“As discussed earlier today on the phone a few workers refused to go on planes that had arrived from China based on safety concerns in relation to the corona virus. Those workers have the right to cease unsafe work under the WHS act, section 84 if they believe that there’s a risk to health and safety associated with the allocated work. You advised me that the business position is that at this point the risk is low and therefore work continues as usual. You also advised that anyone refusing to work on planes that have arrived from China, the business would see that as unprotected industrial action and that workers would be subjected to disciplinary action. I also advised you that it’s prohibited under the WHS act to coerce a person not to exercise a power or not to perform a function under the act. Last, I advised that I’d be escalating this to Safework NSW tomorrow.

Can you confirm the above and also put anything that I may have forgotten?”

69. At 1.31pm Mr Smith sent an email to all GSOTs, and to other persons including Brad Ezekiel, Nicola Davidson and Nicole Watts (PX 1, Tab 14). The subject of the email was “TWU Response to Corona Virus Outbreak”. In part the email referred to the conversation earlier that day between Mr Smith and Mr Seremetidis. Mr Smith said:

“I believe the TWU have been using the recent news stories regarding the Corona Virus Outbreak to spread fear amongst Qantas employees.

Firstly attached are photos from a FaceBook ‘Airport Workers’ group that was posted on Friday by TWU Rep Troy Rodgers. I’m sure you will agree the language used in this post is quite inflammatory, especially the references to the Governments response.

Secondly whilst I was on board the inbound QF117 (EBM) from China I received a phone call from Theo Seremetidis. He was calling to notify me that some employees had expressed concerns about the Virus. I said to Theo I understand and that’s why both myself and the Supervisor (Richard) have been present at all flight arrivals from China & Hong Kong today, providing employees with face masks and the latest medical information from Qantas and the World Health Organisation. I also added that I had just had a meeting with Danny’s crew.

Theo then started to quote a section from the WHS Act and said that Management cannot force people to work on these inbound flights from China. I told Theo that Qantas has made its stance on this matter very clear and it was not up for debate. I told him I was happy to meet with and speak to anyone that had specific concerns. Theo told me that I could not threaten staff with disciplinary action. I told Theo that I was sticking to the fact and being transparent about the choice employees have available to them. Theo said that he would be raising this matter with Safe Work which I said he is welcome to do so.

Just to be clear Theo was not refusing and duties himself. He was acting as a spokesperson for concerned employees.

Please note, before this phone call took place, Theo/Desiree’s crew were allocated the inbound Vietnam Airlines flight. Desiree called me to request masks. I explained to her they were not a requirement, particularly for flights arriving from Vietnam, however I was more than happy to meet her at the aircraft to give her crew masks which I subsequently did.

Things have since settled down for now. The GSOTM team will keep you informed of any development on this matter…”

70. At 2.40pm on 27 January 2020 Mr Findlay conducted a safety toolbox talk for the crew on the bay for QF108, arriving from Beijing (PX 1, Tab 54, p 8). He discussed Coronavirus, wearing PPE and using hand sanitiser and gloves.

71. At 3.15pm on 27 January 2020 Ms Camilleri sent an email to all of the GSOTs, Ms Davidson and Mr Ezekiel (DX 7). Ms Camilleri forwarded the day’s health update from Dr Brown of Qantas Group Medical. Dr Brown’s summary included the statement that “all cases outside of mainland China have been imported by travellers”. He noted deaths in people over 50 years of age with underlying heart or lung conditions. Dr Brown summarised the spread of the disease, including an increased number of confirmed cases, and the spread to more countries. Dr Brown noted that Australia was planning for evacuation of people and staff from Wuhan in China. Dr Brown noted that increasingly staff were requesting to wear masks. He noted that masks were not recommended for ground staff meeting aircraft from mainland China and said that there was an “extremely low risk of an infected person contaminating a surface on an aircraft”. Dr Brown concluded the email by saying that mainland China numbers in the previous five days showed that “we are in a critical phase to see how things progress”.

72. At 3.19pm on 27 January 2020 Mr Smith sent an email to all of the GSOTs and to, inter alia, Mr Ezekiel, Ms Davidson and Ms Watts (PX 1, Tab 16). The email from Mr Smith forwarded the email from Mr Seremetidis sent at 2.12pm on 27 January 2020 and referred to above. Mr Smith added the following comment:

“FYI – A pretty good summary however I will not be responding as requested…”

73. At 5.15pm on 27 January 2020 an email (PX 1, Tab 17) was sent by Ms Nicola Davidson, who was “Head of Sydney Airport, Freight, Catering and Australian Airports for Qantas Airways Limited”. The email was sent to all of the GSOTs, and to, inter alia, Mr Ezekiel and Ms Watts. I infer that the email from Ms Davidson was designed to address the matters raised by Mr Seremetidis in his email. Ms Davidson said:

“We need to discuss this urgently with Theo and any other HSRs etc. They need to discuss with the business prior to stopping work, especially since we have advice from medical.

Can I suggest that we get Theo and others to have a conference call with the medical team tomorrow, if this continues.

Let me know when Theo is on and I’ll organise to get one of the medical team to speak to the fleet team and any others.”

74. At 5.34pm on 27 January 2020 Mr Findlay sent an email to Ms Davidson setting out the roster for Mr Seremetidis, who was on morning shifts for the remainder of the week (PX 1, Tab 18).

28 January 2020

75. At 6.57am on 28 January 2020 Mr Seremetidis sent an email to Ms Camilleri (PX 1, Tab 21, p 3). The email was copied to, inter alia, Mr Smith and Mr Lau. Mr Seremetidis said:

“There’s a lot of workers that are worried about the corona virus on flights that come in from China. The news are reporting that the virus can be transmitted from person to person in the incubation period before someone feels unwell. Also, no one knows how many infected people have travelled to other Chinese cities before the travel restrictions were put in place.

Qantas flies to Beijing Shanghai and Hong Kong. A lot of workers are afraid to work on these flights due to the risk of infection and are ceasing unsafe work of these particular flights.

Can you show me how the PCBU is managing this risk?”

76. At 9.20am on 28 January 2020 an email was sent to all Qantas employees headed “In The News” (PX 2, Tab 57). In part, it said:

“Coronavirus update

We’re continuing to closely monitor the situation, and the risk in Qantas Group ports is currently considered low. The World Health Organization continues to recommend against any travel or trade restrictions. Further information on the virus can be found on The Terminal.”

77. The reference to “The Terminal” is a reference to the Qantas Intranet, which could be accessed by all employees from a mobile device or from computers made available to employees in the meal rooms.

78. At 10.40am on 28 January 2020 Ms Camilleri replied by email to the email sent by Mr Seremetidis at 6.57am that morning (PX 1, Tab 21, pp 2-3). Ms Camilleri said that Qantas continued to work within the guidelines provided by Qantas Group Medical. Up-to-date information was provided by Qantas Group Medical to all employees who attend to flights from China. P2 masks and gloves were available to all staff. Ms Camilleri referred to the health information previously circulated by email.

79. The email concluded by Ms Camilleri saying:

“We will continue to take the advice of Qantas Medical, other sources of information, such as the media do not necessarily provide factual information. Staff safety is our priority and we will continue to provide them the most up to date information.

To provide you (HSRs) with an opportunity to ask questions, a conference call with Qantas Medical has been set up for 2.00pm today.”

80. Ms Davidson organised a Microsoft Teams Meeting at 2.00pm with Dr Russell Brown in relation to Coronavirus (PX 1, Tab 19). Mr Seremetidis was one of the parties invited to participate in the Teams Meeting.

81. At 2.13pm on 28 January 2020 Ms Camilleri sent an email to the GSOTs, Ms Davidson and Mr Ezekiel (DX 8). She forwarded the Coronavirus daily update from Dr Russell Brown. The update reported an increasing number of deaths due to Coronavirus and the spread to more countries. The update noted that the WHO assessment of the general event remained “very high in China, high at the regional level and high at the global level”. The risk to Qantas staff was said to be “considered low”. The update noted that in China there had been reports of the spread of Coronavirus from people prior to having significant symptoms. It was said that outside China, the spread from someone who is asymptomatic was “extremely unlikely”. The update noted that mask supplies were running out around the world, due to overuse. The update referred to an Australian Government alert being “unchanged”. It recommended people “exercise normal safety precautions”.

82. At 2.39pm on 28 January 2020 an email was sent by Mr Ben Pryor, who held the position of Operations Portfolio Manager Sydney Airport for Qantas (PX 1, Tab 20, pp 2-3). The email contained his notes of the meeting with Dr Russell Brown in relation to Coronavirus. In dot-point form Mr Pryor set out his understanding of what Dr Brown said. His notes included the following:

“•   Fear in populations is largely irrational.

•   Coronavirus is difficult to spread.

•    Reassurance point of view staff on aircraft not at great risk at all.

•    Flu kills 400, 500K a year. So we need perspective.

•   Masks: There is no evidence masks change the outcome. Exception is health care professionals or cabin staff dealing with someone that is sick.

•   Normal cleaning or walking past an infected person extremely unlikely”.

83. At 3.05pm on 28 January 2020 Mr Seremetidis sent an email (PX 1, Tab 21, pp 1-2) to Ms Camilleri. It was copied to, inter alia, all of the GSOTs, Mr Smith and Mr Ezekiel. Mr Seremetidis said:

“I just finished the conference call with Qantas medical. The doctor mentioned that there has been a risk Assessment done. Also there are a few more questions I have that I didn’t have enough air time to ask all these questions

1)   I’d like to see the risk assessment

2)   when was this risk assessment done and was it done in consultation with HSRs

3)   the doctor talked about the status on the risk of the virus to workers. Has this been communicated and consulted with workers? If yes How? When? If not, why not?

4) You state that information was provided to workers via links - the PCBU has an obligation under Section 47 – 49 to consult with all affected workers about any workplace hazards. Has the PCBU properly consulted with all affected workers?, and if not, when do you plan on doing this, and how?

5)   How is work performed, including the physical, mental and emotional demands of the tasks and activities? Has the PCBU taken in to consideration that workers may find this hazard a psychological hazard, and not only a genuine biological hazard? What has the PCBU implemented to manage this?”

84. At 3.30pm on 28 January 2020 Ms Davidson sent an email to Qantas Personnel, but did not include any GSOTs or Mr Seremetidis (PX 1, Tab 20, pp 1-2). Ms Davidson said:

“Sydney had a call with Dr Russell Brown today after some noise bubbling about coronavirus. All the leadership team as well as HSRs and other influencers attended the call.

In very simple terms – summary as follows: Detailed info below

1.   Very low to zero risk of getting the virus. Not airborne.

2.   Masks and gloves not required. Best defence is usual hygiene rules – washing hands properly for 20 seconds

3.   No change to BAU processes and procedures

4.   Updates daily by medical team on the terminal.

It was helpful and if you have any issues, I am sure that Russell would support a call.”

85. The abbreviation “BAU” stands for “business as usual”.

86. At 5.30pm on 28 January 2020 Ms Camilleri sent an email to Mr Seremetidis, responding to his email sent at 3.05pm (PX 1, Tab 21, p 1). The email was copied to all of the GSOTs and, inter alia, Mr Smith and Mr Ezekiel.

87. Ms Camilleri said:

“We are taking a national (and international) approach to how we communicate the information we receive as an organisation about the Coronavirus. The Qantas medical team is continually monitoring the situation, including providing daily updates.

The risk assessment has been completed by medical experts and as such all business units have been taken into consideration as part of the review including overseas ports, Cabin Crew, Fleet Presentation and Customer Service etc. It is not a port by port or singular business unit approach.

Information is provided to you on a daily basis, via the Terminal. This information is updated daily for all workers at Qantas and in addition GSOTs are out and about with firsthand information, ready to provide to all workers including those attending aircraft that arrive from China.

If any workers have concerns including psychological, emotional or physical, as always, they must speak to their GSOT or Supervisor directly for assistance.

Confirming the conversation with Dr Brown, there is no change to business as usual procedures and processes and that extra vigilance is required with normal handwashing and personal hygiene procedures.”

29 January 2020

88. At 6.35am on 29 January 2020 Mr Findlay conducted a safety toolbox talk on the bay for QF128, a flight from Hong Kong (PX 1, Tab 54, p 9). He discussed Coronavirus, wearing PPE and using hand sanitiser and gloves. He recorded that the team had “minimal concerns”.

89. At 7.01am on 29 January 2020 Mr Seremetidis sent an email to Mr Lau of the Transport Workers Union (TWU) and Ms Marsic, who was the TWU training manager (PX 3, Tab 22, p 1). He forwarded a copy of the email chain between himself and Ms Camilleri, which has been summarised above. Mr Seremetidis said:

“Good morning. This is the response I received from the PCBU. I feel like I’m being brushed off and I’m not given the information I request. I don’t feel consultation has occurred with HSRs or workers. I’m Not given the risk assessments and it was all done without HSRs”

90. At 7.13am on 29 January 2020 Mr Seremetidis sent an email to Ms Camilleri, which was copied to the GSOTs, and inter alia, Mr Smith, Mr Ezekiel and Mr Lau (PX 1, Tab 21, p 1). Mr Seremetidis said:

“Just reminding you that the information I’ve requested is requested as an HSR and the PCBU has an obligation to provide it. Also the PCBU has an obligation to consult as per the act with workers and HSRs.

I am now requesting the info form the previous email by COB Thursday 30/1/2020.”

91. At 9.24am on 29 January 2020 Mr Sam Moran sent an email to Inspector Colleen Harris of SafeWork (PX 1, Tab 24, pp 1-2). Mr Moran held the position of Manager People and Operational Safety – Australian Airports for Qantas. He copied and pasted material into that email to inform Inspector Harris what QGS was doing and what information had been provided to QGS workers. On page 2 of the email he stated, as part of a summary of the Teams Meeting with Dr Brown on 28 January 2020:

“•   HSR stated he gets lots of questions and management are not communicating:

•   Qantas Head of Sydney Airport stated as a response that the GSOTs have been communicating directly with staff.

•   Monitor info on The Terminal website.

•   Risk is continually reassessed by Qantas management, medical and leadership team.”

92. I infer that the HSR referred to in that part of the email was Mr Seremetidis. He did raise questions at the meeting with Dr Brown.

93. At 9.50am on 29 January 2020 Dr Brown sent an email with an update about “significant developments overnight” (DX 14). The update referred to an increasing number of cases in an increasing number of countries.

94. At 10.20am on 29 January 2020 Mr Findlay conducted a safety toolbox talk on Bay 2 with the crew assigned to clean QF130 from Shanghai (PX 1, Tab 54, p 10). Mr Findlay recorded that he had a private conversation with Catherine Ofria. He recorded:

“I spoke to Catherine separately, I listened to her concerns, Explained all the information and what may occur if she refuses to complete the tasks. She has agreed to go onboard but was not happy. Email of discussion sent to Francene.”

95. While the Communication Record (PX 1, Tab 54, p 10) notes Mr Seremetidis as being in attendance at the meeting, Mr Findlay later realised that Mr Seremetidis was not there (PX 1, Tab 53).

96. At 1.28pm on 29 January 2020 Mr Findlay sent an email to Ms Camilleri regarding the flight QF130 inbound from Beijing (PX 1, Tab 25). Mr Findlay gave the following “recap”:

“•   Arrived on bay prior to crew arriving with Masks ready to go.

•   Desiree’s crew arrived on bay. I met them at the van and began distributing masks, There was some concern around the virus, I relayed information from the most recent Qantas medical update.

•   Desiree asked me to speak with Catherine Separately.

•   After speaking with about 7 staff, all but Catherine Ofria and I believe it was Debra Fotiou went to the Aircraft

•   Catherine Asked me what would happen if she refused to go onboard, I again highlighted the message regarding the risk, the supply of the PPE and Washing Hands ect. I explained that if an employee chooses to not go on the assigned task then the business may consider that as unprotected industrial action and they may face a disciplinary action.

•   Catherine said words to the effect of ‘Well we don’t have a choice’

•   I Explained she had a choice, I had given her all the information and it was up to her to make a decision.

•   She said she would go on but wasn’t happy about it. Debra and myself walked to the A/C and Catherine stayed on board the van to make a call

•   When on the Aircraft I saw Theo Seremetidis and he asked if Catherine was on board, I said yes and where he could find her.

•   I assisted Desiree by driving 6 crew members who did not want to extend back to the meal room in the Van, Catherine was one of the team members and she said words to the effect of ‘Jess I don’t mean any disrespect to you or any other GSOT but ill tell you now I wont be getting on that plane again, I have a Sick boy to worry about and I wont put him at risk’ I had already explained everything to Catherine so rather than respond back with more info I nodded.

I believe Catherine Spoke to Theo. S who may have said to her let them know you wont go on again maybe to ‘test the waters’

We may be at the tipping point of staff beginning to refuse to go onboard as the news reports the Virus in a more severe light. Should we have a standard and uniform way we will deal with any team member who refuses their duties?

Also Desiree asked if she does get sick and it is Coronavirus will this be covered under workers Compensation ?

Please let me know if you need anymore information ?”

97. At 4.40pm on 29 January 2020 Ms Camilleri sent an email to Mr Seremetidis (PX 1, Tab 28, p 2). She said:

“I’d like to take this opportunity to discuss your email.

Please me know if you’d like to bring a support person and if they need tasking out.”

98. The email from Ms Camilleri proposed a meeting for 12 noon on 30 January 2020.

99. At 6.11pm on 29 January 2020 Mr Seremetidis sent an email to Ms Camilleri in response to her invitation to attend a meeting (PX 1, Tab 28, p 2). Mr Seremetidis said:

“Unfortunately Ho Lau isn’t available tomorrow. Can we meet after the weekend ?? The questions 1 and 2 are pretty self explanatory and should be fairly easy to get.

1)   I’d like to see the risk assessment that has been done

2)   when was this risk assessment done and was it done in consultation with HSRs?

I’m still expecting this information by tomorrow 5pm.

The rest of the information requested that needs clarification can be discussed in our meeting next week.”

30 January 2020

100. At 12.16pm on 30 January 2020 Mr Findlay sent an email to Ms Camilleri headed “Post QF130 Theo Conversation” (PX 1, Tab 29). In his email Mr Findlay stated as follows:

“Post discussion with staff from crew scheduled to service QF130, 3 x Crew did not attend the flight. King Odor, Jamile Abdou, Amanda Greenhill.

The below discussion took place between myself and Theo Seremetidis.

•   Theo Called me to ask where I was, I explained I was on the A/C at bay 25 and he said he would come to the plane.

•   Theo arrived and we discussed the earlier incident with the 3 x staff refusing to clean the QF130.

•   Theo explained that he had spoken to the staff involved and called the safe work regulator contact : John Whatman [mobile number]

•   He said that it was breech under that act to threaten staff with disciplinary action for refusing to complete a task that they feel they are Unsafe. I explained the information currently says it is low risk and we can continue working as per direction.

•   I explained how I present the information to the staff, answered questions, reiterated the business position, offered PPE and explained what May occur if they refuse task and how the business May view their action.

•   I explained to Theo that I did not threaten staff, but I provided staff with all the information so that they could make their own decision. This information included what may happen as a result of refusing to complete a task.

•   Theo said the regulator would like to speak to me and that if the threats of disciplinary action continue, they would escalate.

•   Theo mentioned that other carriers have cancelled flights, BA and Air Canada, I explained that for the moment we are still operating into mainland china.

•   He brought up that he had asked for the risk assessment, I explained that that was a separate matter to this request and that he will be updated shortly.

•   I thanked him for the information and said I would refer what he has told me and the contact details he provided to the business However at this stage what I have explained is still the business position.

•   The conversation tone was courteous on both sides. Catherine Ofria was a witness to the conversation.”

101. Ms Watts arranged a conference call for 1.30pm with Jamile Abdou and King Odor, who were two of three employees who refused to clean the aircraft arriving from China. By text message, Jamile Abdou and King Odor informed Ms Watts that they would not be attending the meeting, as they had spoken to Mr Seremetidis who advised them not to take part in the conference call (PX 1, Tab 31).

102. At 1.09pm on 30 January 2020 Ms Camilleri sent an email to Mr Moran, copied to all of the GSOTs, and, inter alia, Ms Davidson, Ms Watts and Mr Ezekiel. The importance of the email was said to be “high” (PX 1, Tab 30). Ms Camilleri said:

“Seeking your assistance please, today we had 3 Fleet Presentation employees refuse to work on the inbound QF130 from Shanghai. We are currently managing these employees.

My concern is with Theo Seremetidis (QGS SIT HSR), who is currently engaging in phone calls directly with Safework – details in email below. I know you have been on the front foot with Safework regarding this matter, however I have asked my team to not engage in any contact with Safework directly and to escalate to me. Has there been any further update from Safework from yesterday, it might be helpful to reach out again regarding the information below.

Brett – I know Theo is trying to do the right thing by his workers, however as mentioned, I strongly believe I will be issued a PIN tomorrow regarding the attached email. It might be a good time to address him and the approach he is taking on this matter.

Please let me know if you need any more information.”

103. The reference to a “PIN” in the second last paragraph is a reference to a provisional improvement notice which a HSR can issue under s 90 of the WHS Act. As previously recited, a business issued with a PIN must comply with the Notice within the time specified in the Notice: s 99(2) of the WHS Act.

104. At 4.52pm on 30 January 2020 Ms Camilleri replied by email to Mr Seremetidis (PX 1, Tab 28, p 1), in relation to his email sent at 6.11pm on 29 January 2020.

105. Ms Camilleri said:

“The risk assessment that Dr Russell Brown spoke about on the phone hook-up is not a risk assessment as you would know it. It is an assessment being conducted by Qantas Medical Services and Crisis Management Team. This assessment has and is being undertaken in conjunction with the information provided by the Australian Government, foreign Governments and the World Health Organisation. It’s a dynamic assessment that is being updated daily as I know it. It’s being managed as a Crisis by the Group’s Crisis Management Framework in accordance with Qantas procedures.

Any questions, concerns or suggestions of HSRs can be raised via management for consideration and the outcome of the Crisis meetings is being communicated via the management teams. It’s impossible to have every HSR in the Crisis Management meetings and it would be impossible to act swiftly and effectively if we did.”

106. At 4.54pm on 30 January 2020 Ms Camilleri sent an email to all of the GSOTs and Mr Ezekiel regarding an update from Dr Brown (DX 9). In short, the update referred to an increased number of cases in an increased number of countries. It noted that the WHO was still advising against the application of any restrictions to international air traffic.

107. At 7.02pm on 30 January 2020 Mr Moran sent an email to Ms Camilleri (PX 1, Tab 48, p 2). The subject was “Post QF130 Theo Conversation”. Mr Moran said:

“I spoke with Robert MayeII, Manager Metro Operations, Safework NSW, who is the manager of the SafeWork Inspectors assigned to Qantas issues.

Robert and three of his Inspectors (Kerry, Colleen and Mara) received my email yesterday advising them, proactively, about the communication, considerations and precautions undertaken by Qantas relative to the coronavirus situation. Robert acknowledged this communication during our phone conversation, and noted that it mirrored the advice published by SafeWork NSW.

Robert spoke with the mentioned Inspector, John Whatman, who advised that he did not require Qantas to call him and had not provided any advice or direction to an HSR regarding the stopping of fleet presentation work activities. It was confirmed that the Regulator will not issue such advice to HSRs but would attend the site and act in a mediatory role, if required.

It was a positive phone call and SafeWork had no immediate concerns.”

108. At 8.43pm on 30 January 2020 a fact sheet for ground workers was sent by email (PX 2, Tab 59). It stated that the health risk to employees “remains low”. The threat of infection to ground workers was “very low”. The fact sheet said that normal PPE was sufficient for all airport ground workers, including those cleaning aircraft originating from mainland China. It said that good hygiene was the most effective form of protection.

109. On 30 January 2020 a letter was published in the New England Journal of Medicine entitled “Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany” (PX 7). This document was not seen by Mr Seremetidis until he read it on 1 February 2020. The contents of the New England Journal of Medicine document will be discussed below in relation to events of 1 February 2020.

31 January 2020

110. At 6.45am on 31 January 2020 Ms Watts and Mr Allworth held a meeting with the three workers who had refused to clean the planes arriving from China. Mr Seremetidis attended this meeting as a support person for the three workers.

111. Each worker was handed a letter from Ms Watts (PX 1, Tab 36). The text of each letter was:

“Direction to follow reasonable and lawful directions

I understand on 30 January 2020, that you refused to board an aircraft and perform your duties in relation to Qantas Flight QF130 from Beijing. You advised that this was due to your concerns about the risk of contracting Coronavirus. You were advised at the time that the risk of that occurring was negligible and that there was PPE available.

I again confirm that the risk of aircraft workers contracting Coronavirus as a result of working on aircraft is negligible. This position has been confirmed verbally by a representative from Qantas Medical this morning. We have also provided you with written advice to this effect.

In these circumstances, and with the information available to you, you cannot reasonably be concerned that working on aircraft originating from China would expose you to a serious risk to your health or safety or that there is a risk of immediate or imminent exposure to Coronavirus.

Direction

Given the above, the Company is formally directing you to perform your duties as required including performing your duties on aircraft originating from ports in China.

The Company’s position is that the direction outlined above is reasonable and lawful, and you are required to comply with it. It is important that you are aware that should you fail to comply with this direction, this may result in disciplinary action being taken against you, up to and including termination of your employment.

Employee Assistance Program (EAP)

[Paragraph omitted]

Thank you for your time this morning.”

112. At 9.11am on 31 January 2020 the email “In The News” newsletter was circulated (PX 2, Tab 60). Under the heading “Coronavirus” the email referred to the WHO declaring the Coronavirus outbreak a public health emergency of international concern. The health risk to Qantas Group employees was said to remain “low”. It was said that Qantas Group Medical was completing daily risk assessments.

274. I turn to consider the legal consequences of these findings.

Consideration: The Directions given by Mr Seremetidis

282. It is beyond doubt that Mr Seremetidis specifically directed workers three times on the morning of 2 February 2020 to cease work which he regarded as unsafe,

283. It is also beyond doubt that Mr Seremetidis specifically stated that he was giving a direction under s 85 of the WHS Act.

284. As recited above I have accepted the submission made by QGS that because Mr Seremetidis had not consulted or attempted to resolve the issue, as required by s 85(2) of the WHS Act, he was not in a position to give a s 85 direction without compliance with s 85(2).

285. In written submissions delivered at the conclusion of the evidence the parties submitted as follows.

286. SafeWork submitted (MFI 39, par 353) that it was not necessary for the prosecution to prove that the direction was a valid exercise of the HSR’s function under s 85.

287. QGS submitted as follows:

1. Because of the failure to consult, the requirement of s 85(1) was not met and the directions issued by Mr Seremetidis were not authorised by the WHS Act (MFI 41, par 90).

2. Because of the failure to engage in issue resolution, when Mr Seremetidis did issue directions to cease work on 2 February 2020, he was not performing a function, or exercising a right, as a HSR (MFI 41, par 103).

3. Section 106 did not operate in these circumstances to make the issue of the direction by Mr Seremetidis a “prohibited reason” (MFI 41, par 104).

4. As a consequence of these matters, the prosecutor has failed to make out one of the required elements of s 104(1) of the WHS Act and so the charge should be dismissed with costs.

5. A circumstance required by s 110(1)(b) has not been proven and no evidence of a prohibited reason required by s 110(1)(c) has been adduced. As a result s 110(2) is not enlivened to raise a presumption in favour of the prosecutor that the dominant reason for the discriminatory conduct was the prohibited reason alleged in the s 104 charge.

288. Neither party cited any authority for their opposing views about whether the direction to cease work had to be a valid exercise of the power under s 85 of the WHS Act.

289. The proceedings were listed for delivery of judgment on 3 November 2023. Late on 2 November 2023 the solicitors for QGS emailed my Associate to draw attention to the decision of the Federal Court of Australia delivered on 30 October 2023 in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302 (Fair Work v CFMMEU). On 3 November 2023 both parties indicated that they wished to file supplementary written submissions in relation to this case. They did so.

Fair Work v CFMMEU

290. This case concerned s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI Act). Directions to cease work were given by HSRs in reliance on s 85 of the Work Health and Safety Act 2011 (Qld) (WHSQ Act). Section 85 of the WHSQ Act is in identical terms to s 85 of the WHS Act, as both are part of a unified national scheme. In the proceedings the Fair Work Ombudsman alleged that employees had engaged in “unlawful industrial action” by their failure or refusal to perform work in contravention of s 46 of the BCI Act. The respondents submitted that the stoppages were not “industrial action” within s 7 of the BCI Act because the employees were under no legal obligation to work, after directions to cease work had been given to them pursuant to s 85 of the WHSQ Act.

291. Section 46 of the BCI Act was a “Grade A civil penalty” provision. Contravention exposed the respondents to the imposition of pecuniary penalties under s 81 of the BCI Act. Thus the case did not concern a criminal prosecution. However, the consideration of the effect of an invalid s 85 direction is of assistance in the present proceedings. The applicant had submitted that a direction which is not validly made in accordance with s 85 of the WHSQ Act is ineffective to relieve an employee from their obligation to work. One of the bases for this submission was that there had not been consultation before the s 85 direction was issued. In this regard, the proceedings raised a factual issue identical to that raised in the present proceedings. The trial judge said at [223]:

“The proper construction of s 85 is informed by the objects set out in s 3 of the WHSQ Act. It may be seen from s 3(1)(a) and (2), that the WHSQ Act aims, relevantly, to protect workers against harm to their health, safety and welfare. It applies the principle that workers should be given the highest level of protection from hazards and risks arising from work.”

292. The trial judge said at [294] that the purpose of consultation under s 85(2) is to allow those persons with a duty to ameliorate or eliminate the serious risk, the opportunity to do so, before a direction to cease work is given. Section 85(2) requires consultation with each PCBU holding such a duty. As a fact, it was held that there was a failure by the HSRs to consult and therefore there was a failure to comply with the requirement of s 85(2) – at [297]. The applicant submitted that there could not be a valid direction where any of the conditions under s 85(1) for the exercise of the power were not met – at [332].

293. The trial judge considered whether the employees were required to comply with the directions once they were given, even if they were invalid. This is not a factual question which arises in the present proceedings, but the analysis by Rangiah J is valuable in considering the submission made by QGS that the s 85 directions of Mr Seremetidis were invalid (because of lack of consultation) and thus they were a nullity and of no effect.

294. In considering the issue, the trial judge said:

“350 Division 6 of Part 5 of the WHSQ Act provides for the protection of the health and safety of workers in circumstances involving a degree of urgency, while balancing the interests of PCBUs in not having work unduly or unnecessarily disrupted. It does so by conferring authorisation upon workers under s 84 to cease work, and a power under s 85 upon HSRs to direct workers to cease work, where the specified conditions are satisfied. Under s 50, the role of a HSR is to ‘represent workers who carry out work for the business or undertaking’. The role carries substantial responsibility and confers substantial power under ss 68, 85 and 90 of the WHSQ Act. That is recognised by detailed and prescriptive provisions being made for appointment and election (ss 50-67), disqualification (ss 67A-67F), training (s 72) and meetings (ss 75-79). The role of a HSR as the workers’ elected and trained representative in matters affecting their health and safety is consistent with a power in the HSR to give an authoritative instruction or command to cease work when the HSR is reasonably satisfied of the urgent circumstances described in s 85(1).

351 The power under s 85(1) cannot be regarded a power to merely give advice or make a recommendation to workers to cease work. It is self-evident that anyone could give such advice or make such a recommendation. It would be unnecessary for the legislature to enact detailed and specific provisions conferring power upon a HSR to do so.

352 This view is reinforced by s 85(3). It cannot be supposed that where, ‘the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction’, the HSR's power is to merely give advice to a worker to cease work. The power is to give an authoritative instruction or command to cease work.

353 Further, s 86 (which provides that if a worker stops under s 84, they must personally notify their employer of their decision) may be contrasted with s 85(5) (which requires that where the HSR gives a direction, the obligation to notify the PCBU falls on the HSR). Section 85(5) would serve no purpose if there were still a decision to be made by workers after the HSR has given a direction.

354 Another contextual matter is that s 87 provides that if a worker has ceased work under Division 6, a PCBU, ‘may direct the worker to carry out suitable alternative work’. That cannot be supposed to confer a power to merely advise a worker to carry out suitable alternative work. It is ordinarily a sound rule of construction to give the same meaning to the same word appearing in different parts of a statute: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; IMM v The Queen (2016) 257 CLR 300 at [143].

355 I am unpersuaded by the applicant's contextual arguments. Under the applicant's construction, the HSR's direction would be merely advisory, and the worker would have to make their own assessment of whether the conditions specified in s 84 of the WHSQ Act are satisfied. A fundamental purpose of having a trained HSR to represent workers in matters affecting their health and safety must be to take that kind of decision-making out of the workers’ hands where urgency is involved.

356 Accordingly, the HSR’s power under s 85(1) of the WHSQ Act to ‘direct a worker … to cease work’ is a power to give authoritative instructions or command that a worker cease work. That power implies a corresponding obligation on a worker to comply with the direction. If there were no such obligation on a worker, the direction would amount to a mere recommendation or advice, a construction which I have rejected.

357 I reject the applicant’s submission that a worker is never required to comply with a direction—even an invalid one—given by a HSR under s 85(1).”

295. The trial judge then referred to the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 as follows:

“361    In Project Blue Sky, the plurality held at [91]:

‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied: there is not even a ranking of relevant factors or categories to give guidance on the issue.’

(Citations omitted.)

362 Accordingly, it is necessary to consider whether the legislative purpose of the WHSQ Act is to invalidate any direction that does not comply with the conditions set out in s 85(1) and (3) of that Act.

363   In Project Blue Sky, the plurality observed at [92]:

‘Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition.’

(Citations omitted.)

364   The plurality continued at [93]:

‘ … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’

(Citations omitted.)

365 In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, Spigelman CJ observed at [40]:

‘The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form.’

366   His Honour went on to state at [42] that, ‘[t]he second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme’, noting that, in that case, a particularly relevant consideration was the point of time in the decision-making process at which the element under consideration occurs.”

296. Against the background of that authority, Rangiah J said:

“368 I have explained that a direction under s 85(1) to cease work is intended to be given in circumstances of urgency to protect workers against a serious risk to their health and safety. The legislative scheme envisages there will be greater urgency when a direction is given without consultation with a PCBU under s 85(3). I have concluded that that a worker is obliged to comply with a valid direction. The obligation to comply means there is no scope for the worker to second-guess the direction. Neither is a worker required to assess the circumstances and, under s 84, make their own decision.

369 These matters inform the question of whether a direction given in circumstances where it is ultimately determined that HSR's concern was not reasonable, or that the risk was not so serious and immediate or imminent that it was not reasonable to consult before giving the direction, is invalid and of no effect. In the circumstances of urgency that s 85 of the WHSQ Act is concerned with, it cannot be intended that workers will make inquiries as to whether the conditions of the section have been satisfied. It follows that the worker will often be unaware of circumstances that may give rise to non-existence of the conditions under s 85(1) and (3).

370 If a direction is invalid and of no legal effect because a condition under s 85(1) or (3) does not exist, an employee will have ceased work without authority to do so. The worker may be liable to civil action for, inter alia, a breach of s 46 of the BCI Act and breach of contract despite being bound to follow a direction that they have no control over: see also Rookes v Barnard [1963] 1 QB 623 at 682-3; [1962] 2 All ER 579 at 600; Australasian Meat Industry Employees Union v Australian Meat Holdings (1999) 93 IR 308 at [102]; Irving M, The Contract of Employment (2nd ed, LexisNexis Butterworths, 2019) at pp 498-499.

371 An anomaly would arise that the HSR giving the direction may be protected under s 66, but no corresponding protection would extend to a worker who merely complied with the direction. The serious injustice that could be caused to workers is a factor that tells against construing s 85(1) and (3) as rendering a direction invalid and of no legal effect in such circumstances: see Montreal Street Railway Company v Normandin [1917] AC 170 at 175; Accident Compensation Commission v Murphy [1988] VR 444 at 449.”

297. The conclusion of the trial judge was expressed at [374] as follows:

“374 In my opinion, the legislative purpose of the WHSQ Act is not to invalidate a direction on the basis that a HSR's concern was not a reasonable one, or that there was no consultation in circumstances where a risk was not so serious and immediate or imminent that it was not reasonable to consult. It is unnecessary to consider the position where workers know, or ought to know, that the conditions of s 85(1) or (3) have not been met. The applicant has not made any such allegation.”

Consideration

298. It is clear that as a matter of fact, both by words and actions, Mr Seremetidis was directing workers to cease unsafe work. It is also clear as a fact that the sole reason given by QGS for standing Mr Seremetidis down was because he had spoken to the workers and told them to cease unsafe work.

299. The only power of a HSR under the WHS Act to speak in that way is contained in s 85. Just because a thing done could be subject to challenge does not mean that something has not taken place. In State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Justice Gageler said at [52]:

“Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a ‘nullity’ in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.” (citations omitted)

300. In Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 Sackville AJA referred to the quote from Kable above and said at [175]:

“Despite the apparently unqualified observations of McHugh J in GJ Coles a decision affected by jurisdictional error – even a failure to comply with a ‘mandatory’ statutory precondition to the exercise of a power – is not necessarily devoid of legal consequences.”

301. The giving of the directions by Mr Seremetidis on 2 February 2020 were things done in the purported exercise of a power conferred by law. They remained at all times “a thing in fact”, to adopt the phrase of Justice Gageler. The directions given by Mr Seremetidis were capable of having legal consequences. Any worker who ceased work pursuant to a statement made by a HSR had to remain available to carry out suitable alternative work – s 86(b) of the WHS Act. The person conducting the business or undertaking could direct such a worker to carry out suitable alternative work at the same or another workplace, if that work was safe and appropriate for the worker to carry out, until the worker could resume normal duties – s 87 of the WHS Act. Further, if a worker ceased work pursuant to a direction from a HSR, such cessation did not affect the continuity of engagement of the worker for prescribed purposes – s 88 of the WHS Act. The prescribed purposes are set out in cl 24 of the Work Health and Safety Regulation 2017 (NSW). They are remuneration and promotion, as affected by seniority; superannuation benefits; leave entitlements; and any entitlement to notice of termination of the engagement.

302. Thus, the factual existence of the directions given by Mr Seremetidis, even if s 85(2) was not satisfied, had consequences for the creation or alteration of legal rights or legal obligations, both on the part of workers who were the recipients of the directions, and the person conducting the business or undertaking who could require those workers to carry out alternative work. These were consequences which “do not depend on the legal force of the thing itself”.

303. It surely could not be the case that a worker who receives a direction to cease unsafe work from a HSR, and who has no means of knowing whether or not the legal precursors to the exercise of the power have been satisfied, could be penalised for ceasing work pursuant to such a direction.

304. I am reinforced in reaching this conclusion by a consideration of the reasoning of Rangiah J in Fair Work v CFMMEU, summarised above. As QGS has submitted, that decision is concerned with civil penalty provisions and not with criminal prosecutions. However, the analysis of a s 85 direction which was given without consultation, and its legal effect upon both the PCBU and the recipients of the declaration (the workers who were directed to cease unsafe work), is the very issue raised in the present proceedings, by the submission for QGS that such a direction is a nullity. The decision in Fair Work v CFMMEU is not binding on this court, but I find its reasoning on this issue persuasive.

301. Having regard to the legislative purpose of the WHS Act, the failure to consult did not invalidate the s 85 directions given by Mr Seremetidis. As the prosecutor submitted (MFI 45, par 63) the directions given on 2 February 2020 are protected under s 104 of the WHS Act from discriminatory conduct.

302. I therefore find that when, on three occasions on the morning of 2 February 2020, Mr Seremetidis gave a direction to cease unsafe work, he was giving those directions by exercising power as a HSR under s 85 of the WHS Act.

303. I further find that when it came to standing down Mr Seremetidis, QGS did so on the basis that Mr Seremetidis had given directions to cease unsafe work in his capacity as a HSR. QGS was in no way concerned at that time with whether or not Mr Seremetidis had consulted with them or attempted to resolve the health and safety matter with them. The reason given to Mr Seremetidis by Ms Watts on 2 February 2020 was not that he gave a direction which was invalid or that he was not legally empowered to give the directions. It was simply that he had in fact given the directions.

304. On 30 January 2020 Ms Camilleri had indicated her specific concerns about Mr Seremetidis contacting SafeWork and her fear that he would issue a PIN (see par 102 above). Mr Hardy was so concerned that Mr Seremetidis may raise issues about the workers who were due to clean the planes that were coming in from China, that he rang Ms Watts late in the evening on 1 February 2020 and told her to be ready go to the airport the next day, a Sunday (see par 128 above). When Mr Seremetidis gave his directions to cease unsafe work on 2 February 2020, QGS moved to stand him down, rather than consulting with Mr Seremetidis and entering into some form of issue resolution.

305. 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.

306. I find that on 2 February 2020 QGS engaged in discriminatory conduct (a matter not in dispute) and that that conduct was engaged in for a prohibited reason, as it was engaged in because Mr Seremetidis exercised a power or performed a function as a health and safety representative, a prohibited reason under s 106(c) of the WHS Act.

Dominant Reason

311. As recited above, I have found that in proceedings 2021/284164 the prosecutor has proved the first two elements of the charge beyond a reasonable doubt. It has proved:

1. QGS engaged in discriminatory conduct,

2. for a prohibited reason, being conduct engaged in because Mr Seremetidis exercised a power or performed a function as a health and safety representative.

312. Section 104(2) of the WHS Act requires the reason referred to in s 106 to be the dominant reason for the discriminatory conduct.

313. Above I have found that the reason for QGS engaging in discriminatory conduct towards Mr Seremetidis, was because he exercised a power or performed a function as a health and safety representative. That was the reason given to Mr Seremetidis on the day he was stood down.

314. While the letter of allegations raised additional matters, I have found above that these were not matters which were reasons for standing Mr Seremetidis down on 2 February 2020. Rather they were an attempt (unsuccessful in my view) to find additional reasons for conduct already engaged in for a specified reason.

315. Section 110 of the WHS Act provides that the prosecution must:

1. Prove that the discriminatory conduct was engaged in – I have found this element proved beyond a reasonable doubt.

2. Prove that a circumstance referred to in s 106(a)-(j) existed at the time the discriminatory conduct was engaged in – I have found this element proved beyond a reasonable doubt.

3. Adduce evidence that the discriminatory conduct was engaged in for a prohibited reason. All of the evidence adduced in the case points to the conduct being engaged in for the prohibited reason. QGS said so on the day. Mr Seremetidis made it plain that he was directing workers to cease unsafe work in reliance upon his perception that he had a power to do so under s 85 of the WHS Act as a HSR. Thus, evidence has been adduced that the discriminatory conduct was engaged in for a prohibited reason. As Senior Counsel said in final submissions (Tcpt 1033/20):

“We've never denied that we stood him down on the 2nd because Mr Seremetidis gave a direction. What we’ve denied is that it was a direction authorised by s 85.”

316. Section 110(2) of the WHS Act provides that the reason alleged for the discriminatory conduct is presumed to be the dominant reason (a requirement of s 104(2) of the WHS Act) unless the accused proves on the balance of probabilities that the reason was not the dominant reason for the conduct. QGS did not attempt to do so and there is no evidence which would satisfy me on the balance of probabilities that the prohibited reason for the conduct was not the dominant reason.

317. I find that QGS engaged in discriminatory conduct for a prohibited reason which was the dominant reason for the conduct. Thus, all of the elements of the charge have been established beyond a reasonable doubt.

Proceedings 2021/284149 : The “Issues and Concerns” Summons re 2 February 2020

318. These proceedings were brought as an alternative charge to proceedings 2021/284149 (the “Directions” Amended Summons re 2 February 2020). Since I have found the offence charged in 2021/284149 to have been established by SafeWork, the alternative or “back-up” charge will be dismissed.

Proceedings 2021/284183 : The “Directions” Amended Summons re 7 February 2020

Proceedings 2021/284172 : The “Issues and Concerns” Summons re 7 February 2020

319. These two charges fail for the same reason so I will deal with them together.

Did part of the Letter of Allegations constitute a Threat?

320. The two lines in the letter of allegations said by SafeWork to constitute a threat to engage in disciplinary conduct are as follows:

“Theo, the Allegations are serious. If substantiated, they may result in disciplinary action being taken against you (which could include a warning or even termination of your employment).”

321. A threat may constitute discriminatory conduct by reason of s 105(2) of the WHS Act which provides:

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

322. The submissions for the prosecutor on this matter were brief and to the point. The written submissions said (MFI 39, pars 301-306) that:

1. QGS threatened to take action which would have placed Mr Seremetidis in a worse situation, in that QGS threatened to take disciplinary action against him such as a warning or even dismissal from his employment. That threat was set out in the letter of allegations dated 7 February 2020 in writing.

2. In Victorian WorkCover Authority v Patrick Stevedoring Pty Ltd [2011] VMC 62 (Patrick), it was found that a warning letter constituted a detrimental alteration of the worker’s position.

3. The court should be satisfied that the statement in the letter of allegations plainly constituted a threat to dismiss Mr Seremetidis, and a threat to give him a warning.

323. On my reading of Patrick, a warning letter per se is not necessarily a threat. In that case several warning letters were issued to an employee. However, the finding that a threat was made arose from a meeting with the employee after earlier warning letters were sent concerning the employee’s behaviour. At [88] the magistrate made the following finding:

“I am satisfied beyond reasonable doubt that at this meeting Mr Byers said words to the effect that he felt like sacking Mr Carroll and that if he continued to undermine management his job would be on the line.”

324. At [89] the magistrate said that he was satisfied that the comments constituted a threat to dismiss Mr Carroll. He said that the words must be viewed in the context of previous communications between the parties and in particular a warning letter of 11 October 2007.

325. Thus, a warning letter does not necessarily constitute a detrimental alteration of a worker’s position. In Patrick there were words said which, interpreted against the background of earlier warnings by letter, constituted a threat to detrimentally deal with a worker.

326. The written submissions for the defendant (MFI 41, pars 108) pointed out that the term “threat” is defined by the Macquarie Dictionary as:

“1   A declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace.

2   An indication of probable evil to come; something that gives indication of causing evil or harm.

3   A person or thing which is deemed to have a negative impact on one’s fortunes.”

327. The written submissions made reference to the decision in Department of Public Prosecutions (VIC) v ACME Storage Pty Ltd [2017] VSCA 90 (ACME), where the court said at [41]:

“Thus, what must be proved to establish this element of the section 76 offence is that the accused intentionally made ‘a declaration of an intention or determination to inflict punishment, pain or loss on someone’. The mental element, plainly enough, is the intention to make such a declaration.”

328. I find that the two lines of the letter of allegations which are said to constitute a threat, do not rise to that level. Firstly, Mr Seremetidis was advised that the allegations were serious. It was necessary that this statement be made, so that the recipient of the letter would take action to respond to the allegations made. The next sentence of the two lines contains the three conditional words “if”, “may” and “could”. All that was said was that if the allegations were substantiated, there might be disciplinary action which might include a warning or even termination of employment.

329. Attached to the letter of allegations was a documented headed “Information for a Respondent about the Investigation Process”. At the foot of the second column on the first page (PX 2, Tab 89, p 8) it was pointed out that disciplinary action “may be taken” and that a range of disciplinary options “may be available”. It was said that the decision about any action would depend on a range of factors. Further, the respondent would be asked to attend a meeting to discuss the findings and any possible disciplinary action. It seems to me that this was all part of a process to afford natural justice to the person against whom the allegations were made.

330. Further, the Standards of Conduct Policy, which was an attachment to the letter of allegations (PX 2, Tab 89, p 10) said that employees who breached the Policy “may be subject to disciplinary action” – cl 3.2. Further it was pointed out in cl 12.4 of the Policy that if the complaint was substantiated, this “may” warrant formal disciplinary action up to and including dismissal. Clause 12.4(b) of the Policy required the investigation to be conducted according to the general principles of procedural fairness.

331. The two lines in the letter of allegations upon which SafeWork bases its case in relation to a “threat” are in my view not a threat and could not be construed as threat. They are nothing more than the giving of procedural fairness to the recipient of the letter, so that the recipient takes the matter seriously, knowing that if the allegations are substantiated there may be disciplinary consequences. I cannot read the two lines in the letter of allegations any other way. They are most certainly not, to adopt the words at [41] in ACME, a declaration of an intention or determination to inflict punishment.

332. Those findings mean that the two Summonses based on conduct on 7 February 2020 have not been proved by SafeWork beyond a reasonable doubt. In particular, in proceedings 2021/284183 (a “Directions” Amended Summons), the allegation is made in par 10 that:

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

333. I find that QGS did no such thing.

334. In proceedings 2021/284172 (an “Issues and Concerns” Summons) the same pleading is made in par 10 of the Summons. Again, I find that QGS did not threaten action against Mr Seremetidis as alleged.

335. I therefore find that in those two actions, SafeWork has not established that QGS engaged in discriminatory conduct within the meaning of s 105(2) of the WHS Act. Subject to affording SafeWork an opportunity to consider stating a case to the Court of Criminal Appeal, those two charges should be dismissed.

Orders

336. In proceedings 2021/284164 (the “Directions” Amended Summons in relation to 2 February 2020) the orders of the court are:

1. The elements set out in the Amended Summons have been proved beyond reasonable doubt.

2. I find the defendant Qantas Ground Services Pty Ltd guilty.

3. The matter will be listed for a Sentence Hearing on a date convenient to the parties.

4. Costs are reserved for later determination.

337. In proceedings 2021/284149 (the “Issues and Concerns” Summons in relation to 2 February 2020) the orders of the court are:

1. Summons dismissed.

2. Costs are reserved for later determination.

338. In proceedings 2021/284183 (the “Directions” Amended Summons in relation to 7 February 2020) the orders of the court are:

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

3. Costs are reserved for later determination.

4. The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

339. In proceedings 2021/284172 (the “Issues and Concerns” Summons in relation to 7 February 2020) the orders of the court are:

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

3. Costs are reserved for later determination.

4. The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

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Amendments

29 February 2024 - Case title amended to add "(No. 3)"

Decision last updated: 29 February 2024