VWA v Australian Paper Recovery Pty Ltd
[2015] VMC 43
•21 SEPTEMBER 2015
| IN THE MAGISTRATES’ COURT OF VICTORIA AT SUNSHINE |
| CRIMINAL DIVISION |
Case No. D12177289
| VICTORIAN WORKCOVER AUTHORITY (`VWA’) | Informant |
| v | |
| AUSTRALIAN PAPER RECOVERY PTY LTD | Accused |
| MAGISTRATE: | MAGISTRATE MACCALLUM |
| WHERE HELD: | SUNSHINE |
| DATES OF HEARING: | 7 & 9 APRIL 2015 |
| DATE OF DECISION: | 21 SEPTEMBER 2015 |
| CASE MAY BE CITED AS: | VWA V AUSTRALIAN PAPER RECOVERY PTY LTD |
| MEDIUM NEUTRAL CITATION: | [2015] VMC043 |
REASONS FOR DECISION
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr Trevor Wraight QC | Patrick McQuillen, WorkSafe |
| For the Accused | Mr A Lindeman | Mr Graham Dent, Dent Consulting & Legal |
HER HONOUR:
In preparing these reasons for decision, I have referred to the detailed written submissions of Counsel for the Accused, Australian Paper Recovery Pty Ltd (APR), and the Prosecution,[1] as well as further arguments raised verbally by both parties during the hearing.[2]
[1] Summary of Prosecution Opening, 9 April 2015; Outline of Submissions for the Accused (Australian Paper Recovery Pty Ltd), 9 April 2015 (amended date); Submissions on behalf of the Informant, 8 April 2015; Reply to Submissions for Informant, 9 April 2015 (amended date); Further Submissions on behalf of the Informant, 16 April 2015; Accused’s `Woolworth’s’ Reply, 24 April 2015.
[2] Transcript of hearing, VWA v Australian Paper Recovery Pty Ltd, 9 April 2015.
Overview of the offences
The parties agree that APR operates a workplace and business at Laverton North that is part of the paper recycling industry. APR receives waste paper at the workplace where it is sorted, baled and stacked for removal from the workplace for export.
Fusion Workforce Pty Ltd (Fusion) is a labour hire company that places its employees at various workplaces. APR required a forklift driver at its workplace and Fusion placed its employee, Mr Hannah, at the workplace. The charges state that Mr Hannah was employed between 10 January 2013 and 9 April 2013 inclusive at APR’s workplace.
The incident that gave rise to the charges arose at APR’s workplace at Laverton North on 9 April 2013. The incident resulted in Mr Hannah being seriously injured when one of APR’s forklift trucks which he had been operating tipped over and the roll cage struck and pinned him down by his arm and head.
APR is charged with two offences contrary to sections 21(1) and (2)(a) and sections 21(1) and (2)(e) of the Occupational Health and Safety Act 2004 (OHS Act). Fusion is charged with three offences under sections 21(1) and (2)(a) and sections 21(1) and (2)(e), and section 100(2) of the OHS Act arising out of the same incident concerning the injury of Mr William Hannah, but this decision concerns preliminary matters that only APR has requested that the Court determine.
Section 130(1)(b) of the OHS Act permits proceedings for an offence against the Act to be brought by “an inspector with the written authorisation of the Authority (either generally or in a particular case)”. Pursuant to section 132 of the OHS Act, the proceedings for offences against section 21(1) of the OHS Act must be brought within two years after the offence was committed or the VWA becomes aware that the offence was committed, or at any time with the written authorisation of the Director of Public Prosecutions.
The informant, Ross Lindsay Clayton, was authorised by a written authorisation dated 1 May 2014 to institute these proceedings against APR. The document authorised Ross Lindsay Clayton, an inspector appointed under the OHS Act:
[T]o bring these proceedings against Australian Paper Recovery Pty Ltd (ACN 100 624 842) for offences against the OHS Act which occurred between 10 January 2013 and 9 April 2013 at Laverton North in the State of Victoria, involving William Patrick Hannah and with regard to acts, facts or circumstances at, in, underlying or relating to, at the time of or shortly prior to the alleged said incident, under the following sections:
Occupational Health and Safety Act 2004
Sections 21(1) & (2)(a) – 1 chargeSections 21(1) & (2)(e) – 1 charge
The charge sheet was signed by the informant on 6 May 2014. The Charge-Sheet and Summons (Corporate Accused) were issued at the Melbourne Magistrates’ Court by a Registrar on 9 May 2014.
The charges against APR
(a) Charge 1 (sections 21(1) and (2)(a))
Charge 1 provides that:
Between 10 January 2013 and 9 April 2013 inclusive at Laverton North in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 (`the Act’) you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide or maintain for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide or maintain systems of work that were, so far as reasonably practicable, safe and without risks to health.
10.The elements of the section 21(1) and (2)(a) offence that the Prosecution must prove beyond reasonable doubt are:
(a) APR was an employer; and
(b) APR failed to so far as was reasonably practicable provide and maintain for its employees a working environment that was safe and without risks to health.[3]
[3] Victorian Criminal Charge Bench book, Ch 7.9.1.1, Overview of OHS Offences, paragraph 8.
11.Independent contractors engaged by an employer are considered employees for the purposes of section 21, as are the employees of those independent contractors (section 21(3)).
12.The second element of the charge, as set out in paragraph 10(b) above, requires the Prosecution to prove two matters:
a. That APR failed to take a specific step which led to employees’ health or safety being placed at risk; and
b. The measure was reasonably practicable.[4]
[4] Ibid, paragraph 22.
13.The High Court in Kirk v Industrial Court of NSW (‘Kirk’)[5] held that two propositions apply with respect to establishing a contravention under OHS legislation
[5] Kirk v Industrial Court of NSW (2010) 239 CLR 531.
a. `A statement of an offence must identify the act or omission, which is said to constitute a contravention of [the legislation]’;[6] and
[6] ibid, paragraph 14.
b. The `relevant act or omission which gives rise to the offence’ is `a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating.’ The Prosecution must identify, with sufficient precision, the particular measures that it says that APR should have taken in order to prevent the identified risk from eventuating. The measures must `identify the deficiency in the system or the measures which should have been taken to address it.’ [7]
[7] Kirk, as summarised in John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338, paragraph 32.
14.The Prosecution must also prove the existence of a causal nexus between the alleged omissions and the risk beyond reasonable doubt. That is, the Prosecution must prove that the accused’s failure to take the identified measures led to their employee’s health or safety being placed at risk.[8] There are three aspects to this requirement:
[8] Cahill v State of NSW [2008] NSWIRComm 123 at paragraph 311 citing WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453.
a. The failure to take the specified measures must have materially contributed to a risk to health or safety;
b. It must have been a risk to the health or safety of employees; and
c. The risk must have arisen in the working environment.[9]
[9] Victorian Criminal Charge Bench book, Ch 7.9.1.1, Overview of OHS Offences, paragraph 30.
15.The Prosecution alleges that APR failed to ensure, so far as was reasonably practicable that employees, including William Hannah, were not exposed to risks to their health and safety by failing to ensure a safe system of work by:
· Failing to position an emergency stop button for the conveyor as close as was reasonably practicable to the pit into which paper and cardboard were placed at the bottom of the conveyor for feeding into the baler;
· Failing to prohibit employees from climbing onto the conveyor;
· Failing to establish a No Go Zone for the forklift near the conveyor.[10]
[10] Summary of Prosecution Opening, filed 9 April 2015, paragraph 14.
16. The particulars filed together with Charge 1 in relation to APR are set out below. The particulars filed together with Charge 1 re-state the charge in the following manner on the page attached to the charge and entitled `particulars.’
Between 10th January 2013 and 9th April 2013 inclusive at Laverton North in the State of Victoria pursuant to section 21(1) and section 21(2)(a) of the Occupational Health and Safety Act 2004 (`the Act’) you were guilty of an offence in that as an employer you failed to ensure, so far as was reasonably practicable, that your employees were not exposed to risks to their health or safety when, in contravention of section 21(2)(a) of the Act, you failed to provide or maintain plant or systems of work that were, so far as reasonably practicable, safe and without risks to health.
17.The particulars that follow the above re-statement of charge 1 are that :
1.During the relevant period (10th January 2013 to 9th April 2013), you were an employer.
2.Persons you employed during the relevant period included Kevin Edward Beardsley and Kelly Steven Hoepo.
3.During the relevant period, you engaged Fusion Workforce Pty Ltd, a labour hire company, to provide you with one of its employees, namely William Hannah, to work as a forklift operator at your factory at 41 William Angliss Drive, Laverton North (`the workplace’).
4.Pursuant to s 21(3)(a) of the Act, William Hannah was also your employee and you owed him a duty of care under section 21(1) of the Act by reason of the operation of section 21(3)(b) of the Act in that you exercised control over the work activities of William Hannah at your workplace.
5.You breached your statutory duty of care to your employees including William Hannah in that you failed to:
a. Position an emergency stop button for the conveyor as close as was reasonably practicable to the pit into which paper and cardboard were placed at the bottom of the conveyor for feeding into the baler;
b. Prohibit your employees including William Hannah from climbing on the conveyor;
c. Establish a No Go Zone for the forklift near the conveyor.
6.Employees placed at risk by your failures included William Hannah.
7.The risk to which your employees including William Hannah were exposed by your failures was a risk of death or serious injury.
18. The Prosecution conceded at the hearing that the inclusion of the word `plant’ in the re-statement of charge 1 is attributable to a typographical error, and confirmed that the Prosecution allegations are confined to `systems of work’ rather than `plant.’[11]
[11] Submissions on behalf of Informant, 8 April 2015, paragraph 23.
19. The Prosecution relies on section 21(3) of the OHS Act and states that Hannah was a deemed employee of APR within the meaning of s 21(3)(a) and that the failures as particularised were matters over which APR had control within the meaning of section 21(3)(b).[12]
[12] Summary of Prosecution Opening, paragraph 15.
20. The Prosecution proposes to adduce at trial evidence to prove that the failures as particularised were matters that were reasonably practicable in the circumstances.
21. Section 20(2) of the OHS Act provides that regard must be had to the following factors when determining what is or was at a particular time reasonably practicable in relation to ensuring health and safety:
a.the likelihood of the hazard or risk concerned eventuating;
b.the degree of harm that would result if the hazard or risk eventuated;
c.what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
d.the availability and suitability of ways to eliminate or reduce the hazard or risk; and
e.the cost of eliminating or reducing the hazard or risk.
(b) Charge 2 (sections 21(1) and (2)(e))
22.Charge 2 is that:
Between 10 January 2013 and 9 April 2013 inclusive at Laverton North in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 (`the Act’), you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide and maintain for your employees a working environment that was safe and without risks to health when, in contravention of section 21(2)(e), you failed to provide such information, instruction, training or supervision to your employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
23.The elements of charge 2 that the Prosecution must prove beyond reasonable doubt are that:
· APR was an employer; and
· APR failed so far as was reasonably practicable to provide and/or maintain for its employees a working environment that was safe and without risks to health in that it failed to provide such information, instruction, training or supervision to its employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
24.The legal principles as set out by the High Court in Kirk’s case with respect to charge 1 apply equally to charge 2.
25.The Prosecution alleges, in particular, that APR failed to sufficiently instruct and supervise employees that:
· They did not climb onto the conveyor;
· They observed a No Go Zone for the forklift near the conveyor.[13]
[13] Particulars to Charge 2, paragraph 5.
26.The particulars filed together with Charge 2, restate the charge as follows.
Between 10th January 2013 and 9th April 2013 inclusive at Laverton North in the State of Victoria pursuant to section 21(1) and 21(2)(e) of the Occupational Health and Safety Act 2004 (`the Act’), you were guilty of an offence in that as an employer you failed to provide such information, instruction, training or supervision to your employees as was necessary to enable those person (sic) to perform their work in a way that was safe and without risks to health.
27.The particulars which follow the re-statement of Charge 2 are as follows:
1. During the relevant period (10th January 2013 to 9th April 2013), you were an employer.
2. Persons you employed during the relevant period included included Kevin Edward Beardsley and Kelly Steven Hoepo.
3. During the relevant period, you engaged Fusion Workforce Pty Ltd, a labour hire company, to provide you with one of its employees, namely William Hannah, to work as a forklift operator at your factory at 41 William Angliss Drive, Laverton North (`the workplace’).
4. Pursuant to s 21(3)(a) of the Act, William Hannah was also your employee and you owed him a duty of care under section 21(1) of the Act by reason of the operation of section 21(3)(b) of the Act in that you exercised control over the work activities of William Hannah at your workplace.
5. You breached your statutory duty of care to your employees including William Hannah in that you failed to sufficiently instruct and supervise them to ensure that:
a. they did not climb on the conveyor;
b. they observed a No Go Zone for the forklift near the conveyor.
6. Employees placed at risk by your failures included William Hannah.
7. The risk to which your employees including William Hannah were exposed by your failures was a risk of death or serious injury.
28.The Prosecution relies on section 21(3) of the OHS Act and states that Hannah was a deemed employee of APR within the meaning of s 21(3)(a) and that the provision of instruction and supervision were matters over which APR had control within the meaning of section 21(3)(b). It proposes to adduce evidence to prove that the failures particularised were matters that were reasonably practicable in the circumstances.[14]
[14] Summary of Prosecution Opening, paragraph 21.
29.The Court must have regarded to section 20(2) of the OHS Act in determining what is or was at a particular time reasonably practicable in relation to ensuring health and safety.
Issues in contention
30.APR contends that the charges are invalid for several reasons. There was a degree of overlap between the various arguments APR raised, which I have summarised below.
31.APR submits that the charges:
a. Issue 1: do not satisfy the formal requirements of the CPA as the sheet containing the particulars is undated, unsigned and unauthenticated by the Court;
b. Issue 2: fail to adequately particularise the nature of the employment relationship between APR and Mr Hannah, according to section 21(3) of the OHS Act and the authority in Inspector Mark Kenneth Glenister (Victorian WorkCover Authority) v the Magistrates’ Court of Victoria and Baiada Poultry Pty Ltd (Baiada Poultry),[15] and therefore disclose no offence known to law;
[15] [2014] VSC 265.
c. Issue 3: should not be read together with the particulars in order to disclose the elements of the offence. It asserts that the charge without reference to any particulars should contain all elements of the offence. This is related to issue 2. APR argues further that if the Court finds the charge to be invalid on the basis of Issues 2 or 3, as the limitation period for the bringing of charges against APR has expired, the charge is a nullity and cannot be amended;
d. Issue 4: are ambulatory and therefore uncertain;
e. Issue 5: are bad for duplicity;
f. Issue 6: are cast in a manner that is wider than what is permitted by the authorisation, and the prosecution is thereby invalidly commenced;
g. Issue 7: fail to particularise other essential matters alleged by the Prosecution, as set out below.
Summary of findings
32.For the reasons set out below I have dismissed all of the APR’s arguments that the charges are invalid.
Relevant legislative provisions
33.Before considering the detailed submissions by the parties in relation to the above arguments brought by APR, it is necessary to set out the relevant legislative provisions, and case law, that has been relied on by both parties.
Commencement of a Criminal Proceeding
34.Section 5 of the CPA provides that a criminal proceeding may be commenced in three ways, the relevant one for this proceeding being by filing or signing a charge sheet in accordance with section 6.
5How a criminal proceeding is commenced
A criminal proceeding is commenced by—
(a) filing or signing a charge-sheet in accordance with section 6; or
(b) filing a direct indictment in accordance with section 159; or
(c) a direction under section 415 that a person be tried for perjury.
35.Relevant parts of sections 6, 8 and 9 of Part 2.2 of the CPA provide as follows:
PART 2.2—CHARGE-SHEET AND LISTING OF MATTER
6Commencement of a criminal proceeding in the Magistrates' Court
(1)A criminal proceeding is commenced—
(a)by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or
….
(c)if a summons to answer a charge is issued under section 14, the time that the charge sheet is signed.[16]
[16] Section 14 of the CPA applies where the summons to answer a charge is issued by a police officer or a public official, rather than the Court.
(3)A charge-sheet must—
(a)be in writing; and
(b)be signed by the informant personally; and
(c)comply with Schedule 1.
.…
8Order for amendment of charge-sheet
(1)The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c)the amendment will not cause injustice to the accused.
9Errors etc. in charge-sheet
(1)A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.
(2)A charge on a charge-sheet is not invalid by reason only of—
(a)omitting to state the time at which the offence was committed unless time is an essential element of the offence; or
(b)incorrectly stating the time at which the offence was committed; or
(c) stating the offence to have been committed on an impossible day or on a day that never happened.
Relevant parts of Schedule 1 of the CPA provide:
SCHEDULE 1
Sections 6(3), 159(3)
CHARGES ON A CHARGE-SHEET OR INDICTMENT
1Statement of offence
A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
2Statement of particulars
(1)Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
3Statutory offence
(1)In this clause—
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2)For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a)identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
(3)If a statutory offence states—
(a)the offence to be committed in alternative ways; or
(b)any element or part of the offence in the alternative—
a charge may state the commission of the offence or the element or part of the offence in the alternative.
4Exceptions, exemptions etc.
Any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge.
37.In Baiada Poultry, Ginnane J sets out (at paragraphs 61 to 71) the requirements for a valid criminal charge under the common law and under the CPA. His Honour held that whilst the CPA engages the language of the common law, it was necessary to apply the language of the CPA in determining whether or not the charges were valid, and that section 9(1) of the Act prevents a charge being invalid by reason of a failure to allege matters that are non-essential elements of a charge. However, where an essential element of the offence is not included in the charge, the nature of the charge will not be sufficiently disclosed, as required by clause 1(b) of Schedule 1 of the CPA. The failure to sufficiently disclose the charge will prevent it being amended, pursuant to the terms of section 8(4)(a). The charge will therefore be a nullity.
38.At common law, if the charges are brought before the expiry of the limitation period, but are found to be defective after the limitation period is passed, they can be amended as long as the amendment does not substitute a new charge. However, under the CPA the Court can only permit the amendment of a charge after the expiration of the limitation period if the three criteria listed in s 8(4) of the CPA are established.
39.His Honour states:
Conclusion: the requirements of the CPA for a valid criminal charge
61. …, I will state my conclusions concerning the requirements for a valid criminal charge, first under the common law and secondly under the CPA.
62. At common law, a charge has to state the essential elements of the offence with which the defendant is charged and detail the time, place and manner of the defendant’s acts or omissions.
63. At common law, a charge can be amended after the expiration of the limitation period provided the amendment does not substitute a new charge.
64. While the CPA uses language from the common law principles governing the validity of criminal charges, it is necessary to apply the words of the CPA in determining the validity of the four charges.
65. Under the CPA, the charge-sheet must state the offence and contain the particulars that are necessary to give reasonable information as to the nature of the charge. Although there is no set formula, the particulars required will usually include the time, place and manner of the acts charged and other particulars of the act, matter or thing alleged by the informant as the foundation of the charge.
66. The Court can only permit the amendment of a charge after the expiration of the limitation period if the three criteria listed in s 8(4) of the CPA are established.
67. The first is that the charge-sheet before amendment sufficiently disclosed the nature of the offence.
68. The other two requirements are that the amendment does not amount to the commencement of a proceeding for a new offence and that the amendment will not cause injustice to the accused.
Section 9 of the CPA
69. Section 9(1) of the CPA states that a charge-sheet is not invalid by reason only of a failure to comply with Schedule 1. Section 9(2) gives instances of errors in the charge-sheet which will not invalidate the charge.
70. Baiada submitted that the use of the word ‘only’ in both sub-sections clearly means that the common law rules for holding a charge invalid apply. There must be other circumstances in which either a charge-sheet or a charge can be invalid. In particular, the CPA does not purport in any way to vary the common law requirement that a valid charge must assert the essential legal and factual elements that make up the offence, which includes the acts and omissions relied on.
71. I consider that s 9(1) prevents a charge being invalid by reason of a failure to allege matters that are not essential elements of a charge, for example, technical objections such as those identified in s 9(2) or a typographical error in identifying the provision that creates the offence. There is considerable authority concerning the operation of similar provisions. However, it is unnecessary to attempt to define the ambit of s 9 for the present proceedings. (Emphasis added, authorities omitted).
40.Ginnane J upheld the ruling of the Magistrate that `if an essential element of the offence was absent from the charge, the nature of the charge will not be sufficiently disclosed, as required by clause 1(b) of Schedule 1 of the CPA.’[17] His Honour stated that the Magistrate’s statement `reflected orthodox legal principle’ that `a valid charge must contain the essential elements of the offence.’[18] At paragraph 169, Ginnane J concluded:
[17] Paragraph 80.
[18] Ibid.
169. In my opinion, the requirement of s 8(4)(a), of ‘sufficiently disclosing the nature of the offence’, directs attention to the requirements of clause 1 of Schedule 1 of the CPA, which, in turn, requires a statement of the offence and particulars giving reasonable information as to the nature of the charge. A statement of the offence must contain both of those requirements. If they are both present, the charge-sheet before the amendment sufficiently discloses the nature of the offence.
The OHS Act
41.The relevant provisions of the OHS Act are set out below.
42.The terms `employee’ and `employer’ are defined in section 5 as follows:
employee means a person employed under a contract of employment or contract of training (see also subsection (2), which applies to Crown contracts and is not relevant in this case);
employer means a person who employs one or more other persons under contracts of employment or contracts of training.
43.The objects of the OHS Act are contained in section 2. It provides:
2Objects
(1)The objects of this Act are—
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
(2) It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.
44.Section 4 of the OHS Act contains `The principles of health and safety protection’. It provides:
4The principles of health and safety protection
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5)Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.
45.Part 3 of the OHS Act is headed `General Duties Relating to Health and Safety’. Part 3, Division 1 of the OHS Act is entitled `The concept of ensuring health and safety’. Section 20, contained within Division 1, provides:
20The concept of ensuring health and safety
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.
46. Part 3, Division 2 of the OHS Act is headed `Main duties of employers’. Section 21, the provision under which the charges arise, sets out the duties of employers to employees. Section 21(3)(a) provides that a reference to an `employee’ in section 21 includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor. Section 21(3)(b) provides that the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
21Duties of employers to employees
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty:1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b)make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c)maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d)provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e)provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
(3)For the purposes of subsections (1) and (2)—
(a)a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b)the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
(4)An offence against subsection (1) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).
47.Part 3, Division 6 is entitled `Single charge for multiple contraventions of certain duties.’ Section 33(1) states:
33Single charge for multiple contraventions of certain duties
(1)This section applies to—
(a)a contravention of a provision of Division 2, 3, 4 or 5 by a person; and
(b)a contravention of such a provision for which an officer of a body corporate, partnership or unincorporated body or association (including a body corporate, partnership or unincorporated body or association representing the Crown) is liable.
Note
For liability of officers, see Divisions 4 and 5 of Part 11.
(2)Subject to any contrary court order, two or more contraventions may be charged as a single offence if they arise out of the same factual circumstances.
(3)This section does not authorise contraventions of two or more provisions of Division 2, 3, 4 or 5 to be charged as a single offence.
(4)If two or more contraventions are charged as a single offence, a single penalty only may be imposed in respect of the contraventions.
The Baiada Poultry decision
48.Both parties rely on the recent Supreme Court decision of Baiada Poultry. APR argues that the case provides an analogy for why the charges in this case are deficient and should be struck out. It is therefore convenient to briefly summarise the findings of the Supreme Court that are relied on by the parties in this hearing.
49.In Baiada Poultry, VWA sought judicial review of a decision of the Victorian Magistrate’s Court made on 16 September 2013 that the four charges brought by VWA against Baiada Poultry Pty Ltd (Baiada) did not provide reasonable information as to the nature of the charges so as to comply with Schedule 1 of the CPA, were ineffective and a nullity, and as such could not be amended by the provision of further particulars pursuant to section 8(4) of the CPA.
The facts in Baiada Poultry
50.Baiada ran a chicken processing plant at Laverton North. It engaged as a cleaning contractor a company by the name of Ecowize Specialised Hygiene Services Pty Ltd (`Ecowize’). Mr Satinder Sarel Singh was an employee of Ecowize. Mr Singh was tragically killed at Baiada’s workplace when he was cleaning the chicken processing equipment.[19] Charges were brought by VWA against Baiada and Ecowize, which were struck out by the Magistrate. Amendments to the charges proposed by VWA after the first ruling were not accepted by the Magistrate in his second ruling and struck out. The charges, as they appear in the Supreme Court’s decision, are set out below. The non-highlighted part of the text shows the charges that were before the Magistrate in his first ruling. The underlined text shows the amendments proposed by VWA.
[19] Paragraphs 3-6.
Baiada Poultry Pty Ltd (ACN 002 925 948)
Charge 1 ‑ s 21(1) and 21(2)(a)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide or maintain plant or systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars:
1.Baiada Poultry Pty Ltd (ACN 002 925 948) (“the accused”), at all material times conducted a business undertaking at 15–17 Pipe Road, Laverton North (“the workplace”).
2.The accused was an employer for the purposes of the Occupational Health and Safety Act 2004 (“the Act”).
3.In August 2010, Ecowize Specialised Hygiene Services Pty Ltd (ACN 096 111 689) (“Ecowize”) was contracted by the accused to provide cleaning services at the workplace.
4.Satinder Sarel SINGH (“Singh”) was employed by Ecowize as a cleaner. At all material times Singh was working as a cleaner at the workplace. For the purposes of section 21(1) and (2) and pursuant to section 21(3) the Act, Singh was an employee of the accused.
5.For the purposes of sections 21(1) and (2) of the Act the accused exercised control at the workplace with respect to the chicken processing chain line while cleaning was being undertaken by Ecowize.
6.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that a system was in place that ensured that when employees including Satinder Pal Singh Sarel, were cleaning the chicken processing chain line including associated sprockets, shackles and wash boxes, the chicken processing line was not operating by:
Ensuring that the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.
7.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that a system was in place that prevented employees including Satinder Pal Singh Sarel, coming in contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned by:
Providing screening or guarding to prevent entanglement in the chicken processing line.
Charge 2 ‑ s 21(1) & 21(2)(e)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(e) you failed to provide such information, instruction or training to your employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
Particulars:
1. Particulars 1–5 of charge 1 are repeated.
2.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that employees including Satinder Pal Singh Sarel, were provided with adequate information, instruction or training in relation to the cleaning of the chicken processing chain line including associated sprockets, shackles and wash boxes by:
Providing, or ensuring the provision of by Ecowize, information, instruction or training to employees engaged to conduct cleaning of the chicken processing line, requiring the tagging and locking out the chicken processing line while cleaning is being undertaken.
Charge 3 ‑ s 21(1) & 21(2)(e)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(e) you failed to provide supervision to your employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
Particulars:
1. Particulars 1–5 of charge 1 are repeated.
2.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that employees including Satinder Pal Singh Sarel, were provided with adequate supervision in relation to the cleaning of the chicken processing chain line including associated sprockets, shackles and wash boxes by:
Ensuring that employees were adequately supervised while cleaning the chicken processing line so that no cleaning would be undertaken while the chicken processing line was operating.
Charge 4 ‑ s 26(1)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as a person who had, to any extent, the management or control of a workplace you failed to ensure, so far as was reasonably practicable, that the workplace
and the means of entering and leaving it werewas safe and without risks to health.Particulars:
1.Baiada Poultry Pty Ltd (ACN 002 925 948) (“the accused”), at all material times conducted a business undertaking at 15–17 Pipe Road, Laverton North (“the workplace”).
2.In August 2010, Ecowize Specialised Hygiene Services Pty Ltd (ACN 096 111 689) (“Ecowize”) was contracted by the accused to provide cleaning services at the workplace.
3.The accused had, to an extent, management or control at the workplace with respect to the chicken processing chain line while cleaning was being undertaken by Ecowize.
4.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that ensured that when persons including Satinder Pal Singh Sarel were cleaning the chicken processing chain line including associated sprockets, shackles and wash boxes, the chicken processing chain line was not operating by:
Ensuring that the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.
5.Baiada Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that prevented persons including Satinder Pal Singh Sarel, coming in contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned by:
Providing screening or guarding to prevent entanglement in the chicken processing line.
11. The parties accepted that the charges and the particulars should be read together for the purposes of determining their validity.
51.Charge 4, for an offence against section 26 of the OHS Act, was an alternative charge to Charges 1 to 3 brought pursuant to section 21 of the OHS Act.
52.Baiada argued that the charges ought be struck out on the basis that they disclosed no offence.
Overview of findings by the Supreme Court in Baiada Poultry
53.In summary, the Supreme Court found that:
a. The original charge sheet did not sufficiently disclose the nature of the offence in respect of charges 1, 2 and 3, which were brought for offences against section 21 of the OHS Act;
b. Charges 1, 2 and 3 brought pursuant to section 21 of the OHS did not sufficiently disclose the nature of the offence, as the charges and their particulars did not state that Baiada owed the duties of an employer to Mr Singh because he was an employee of Ecowize, which had been engaged by Baiada, and that Baiada had control of the work place or part of it.[20]
[20] Paragraphs 172-175.
c. The Magistrate in his decision[21] had correctly applied section 8(4) of the CPA in respect of his finding that the proposed amendments to charges 1, 2 and 3 brought pursuant to section 21 of the OHS could not be amended, as the charges failed to sufficiently disclose the offence and were a nullity.
[21] Cited in Baiada Poultry as Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013).
d. The Magistrate did not correctly apply section 8(4) of the CPA in relation to the fourth charge, brought pursuant to section 26 of the OHS Act. The fourth charge pursuant to section 26, unlike charges 1-3, did not have as its essential element that Baiada had the duties of an employer to Mr Singh. An essential element of that offence included that Baiada had to an extent the management and control of the workplace, and the Court found that language of charge 4 contained those allegations. Charge 4 was therefore upheld by the Court and remitted to the Magistrates’ Court for further hearing. It is understood that an appeal has been brought in relation to the Supreme Court’s finding on Charge 4, however the outcome of any such appeal will not have an impact on the present decision.
(a) The findings of the Supreme Court in relation to the elements of section 21(3)
54.The Magistrate held that each of the four charges failed to specify one or more essential elements of the offence.[22] In relation to charges 1-3, the Magistrate decided that in order for charges 1, 2 and 3 to valid, they must specify that Baiada was an employer, and state how and why Baiada was an employer.[23] VWA relied on the definition of `employee’ contained in s 21(3)(a) of the OHS Act, which includes employees of independent contractors engaged by an employer.[24] The Supreme Court held that:
[22] Baiada Poultry, paragraph 25.
[23] Ibid, paragraphs 84 to 88.
[24] Ibid, paragraph 90.
89. I consider that the Magistrate did not err in concluding that the VWA was required to specify in charges 1, 2 and 3 the elements of the offence that imposed on Baiada the duties of an employer to Mr Singh. In my opinion, without the specification of that information, charges 1, 2 and 3 do not state the essential elements of the offence and do not give reasonable information as to the nature of the charges.
90. The VWA was relying on the definition of ‘employee’ contained in s 21(3)(a) of the OHS Act, that includes employees of independent contractors engaged by an employer. Section 21(3)(b) extends the duties of an employer, such as Baiada, to an independent contractor engaged by the employer and to the employees of the independent contractor:
in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
91. Section 21(3), at least in paragraph (a), is a definitional provision creating a statutory definition of ‘employee’, which includes employees of an independent contractor engaged by an employer. Those persons would not be employees of Baiada at common law.
92. Section 21(3)(b) extends the duties of employers to the particular circumstances that it describes and which I have set out above. As Byrne J stated in Stratton v Van Driel Ltd, a case that concerned the predecessor to the OHS Act:
The difficult question is to identify what precisely is the nature of this control and what it is over which control must exist in order to attract this extended duty.
93. Byrne J further stated:
In s 21(3)(b) any duty imposed by s 21(1), as exemplified in s 21(2), is a duty ‘in relation to’ these matters. This conjunctive phrase indicates that the relationship between the duties and the subject matter of the duties is also very wide. Focusing for the moment on para (i) of s 23(3)(b), the only factor limiting the imposition of the duty is that the matters to which it relates be matters over which the person engaging the independent contractor has control.
94. In Reilly v Devcon Australia Pty Ltd, the Court of Appeal of the Supreme Court of Western Australia considered s 19(4) of the Occupational Safety and Health Act 1984 (WA) which was in the following terms:
(4)For the purposes of this section, where, in the course of a trade or business carried on by him, a person (in this section called ‘the principal’) engages another person (in this section called ‘the contractor’) to carry out work for the principal —
(a)the principal is deemed, in relation to matters over which he has control or, but for an agreement between him and the contractor to the contrary, would have had control, to be the employer of —
(i) the contractor; and
(ii)any person employed or engaged by the contractor to carry out or to assist in carrying out the work; and
(b)the persons mentioned in paragraph (a)(i) and (ii) are deemed, in relation to those matters, to be employees of the principal.
95. The Court of Appeal stated:
Looked at in its overall context, s 19 is designed to ensure that those who are most directly responsible for the safety of workers (their employers and principals who have contracted with their employers) and who have actual control over matters affecting their safety should be held liable for default in exercising that responsibility. That the control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety seems to us to be evident from the words used, read in their context.
It is significant that s 19(4) is directed to ‘matters’ over which the principal has control, unlike s 22(1) which is directed to a person who has, to any extent, control of ‘a workplace’ or of the means of access to and egress from it. This suggests that s 19(4) is concerned with actual control over a particular matter affecting safety, rather than general responsibility for, or control over, the workplace. That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work: see, eg, Humberstone v Northern Timber Mills) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.
96. The Court of Appeal stated that the construction it preferred was consistent with that given to similar legislation in other States and was not in conflict with the construction adopted by Byrne J in Stratton’s Case.
97. The question is whether the provisions of s 21(3)(b), which the VWA relies on to extend Baiada’s duty as an employer to Mr Singh as an employee, were essential elements of the offences that were the basis of charges 1, 2 and 3. I consider that, at the least, the charges that rely on s 21(3)(b) should state either in the charge or in the particulars that Baiada owed the duties of an employer to Mr Singh because he was an employee of Ecowize, which had been engaged by Baiada, and that Baiada had control of the workplace or part of it as was alleged.
98. Without such details the charge did not provide the essential factual elements of the offence to enable the determination of the provision of the legislation under which the charge was brought.
99. I do not consider that the charges or their particulars needed to set out details of the evidence relating to control or contain details of Baiada’s engagement of Ecowize. Those were matters for evidence at the hearing of the charges. In the case of the determination of ‘matters over which’ the employer has control, then the principles discussed in Reilly v Devcon Australia Pty Ltd and Stratton’s Case will be applied.
100. Because charge 1 does not contain the essential elements of the offence that I have referred to in the previous paragraphs, I consider that the charge-sheet before the amendment did not sufficiently disclose the nature of the offence and cannot be amended under the power contained in s 8(4)(a) of the CPA.
101. This finding also affects charges 2 and 3, which for similar reasons fail to ‘give reasonable information as to the nature of the charge’ and do not sufficiently disclose the nature of the charge (emphasis added, authorities omitted).[25]
[25] Ibid, paragraph 89-101
(b) The findings of the Supreme Court with respect to the elements of section 20(2)(a)-(e)
55.The Magistrate also held in relation to charges 1 to 3 that the following matters were essential elements of the charges:
…the matters relied on to establish why a remedy said to be reasonably practicable was in fact reasonably practicable by reference to the considerations listed in s.20(2)(a) to (e) of the OHS Act and any other relevant matters (Ruling 1, p 22.6; Ruling 2 paragraph [29]);[26]
[26] Ibid, paragraph 102.
56.The Supreme Court held that although the Prosecution has to provide reasonable information of why it alleged that measures Baiada had not taken were reasonably practicable, it did not need to give particulars of the Prosecution case in respect of each of the matters contained in sections 20(2)(a) to (e):
108. I consider, with respect, that the Magistrate erred in deciding that the VWA had to provide particulars of each of the matters in s 20(2)(a) to (e).
109. The VWA had to prove beyond reasonable doubt that Baiada, as an employer, had failed, so far as was reasonably practicable, to provide and maintain for employees of the employer a working environment that was safe and without risk to health. It had to provide reasonable information of why it alleged that the measures Baiada had not taken were reasonably practicable. However, it did not need to give particulars of its case in respect of each of the matters contained in s 20(2)(a) to (e).
110. The particulars provided detailed the measures that Baiada should have taken towards the workers, such as Mr Singh, to whom, on the VWA’s case, Baiada owed the employer’s duties prescribed in s 21 of the OHS Act. Those measures were to have a system in place that ensured that the chicken processing chain line was not operating when it was being cleaned. The reasonable practicability of that measure was to be determined at the hearing of the charges.
111. I accept the VWA’s submission that the matters listed in s 20(2)(a) to (e) are not essential elements of the offence, but are matters to which regard must be had in ‘determining what is reasonably practicable in relation to ensuring health and safety’ [emphasis added, authorities omitted].[27]
[27] Ibid, paragraphs 108-111
(d) The findings of the Supreme Court with respect to the elements of section 21(2)(e)
57.The Supreme Court also held, in relation to charges 2 and 3, `that the Magistrate erred in deciding that the charges needed to detail why the VWA alleged that Baiada, rather than Ecowize, should have performed particular tasks’ relating to the provision of information, instruction, training or supervision, and specification of the extent of what is said to have been its responsibility.[28] His Honour states:
[28] Ibid, paragraphs 112-119.
Conclusion
118. I consider that the VWA has established grounds A3(c) and (d). With respect, I consider that the Magistrate erred in deciding that the charges needed to detail why the VWA alleged that Baiada, rather than Ecowize, should have performed particular tasks. These details were matters of evidence at trial.
119. I do not consider that those matters were essential elements of the offences nor were they required to give reasonable information as to the nature of the charges. Baiada’s contention that it discharged its duty by engaging Ecowize was a matter to be considered on the hearing of the charges.
(d) Further findings of the Supreme Court with respect to Charge 2 – ss 21(2)(e)
58.Charge 2 alleged the failure to provide information, instruction or training to employees as was necessary to enable them to perform their work in a way that was safe and without risks to health. The Magistrate held that its essential elements included:
the specific detailed directions required to be included in the instructions, information, instruction or training, why such information, instruction or training was necessary and the required manner of transmission of the information, instruction or training (Ruling 1, pp 29.1, 27.8);[29]
[29] Ibid, paragraph 120.
59.VWA argued that charge 2 should be read with charge 1, and that when read together,
it alleged that Baiada failed to provide information to ensure that the processing line was not operating when employees were cleaning it. The particulars referred to the cleaning of the chicken processing line with specific attention to sprockets, shackles and wash boxes. Mr Singh died when he was cleaning that equipment.[30]
[30] Ibid, paragraph 122.
60.The Supreme Court held that:
125. I do not consider that the Magistrate erred as the VWA alleged in ground A3(e).
126. Charge 2 contained particulars stating that Baiada had failed to ensure that employees were provided with adequate information, instruction or training in relation to the cleaning of the chicken processing chain line, including associated sprockets, shackles and wash boxes. They did not give reasonable information as to the nature of the charge.
127. I do not consider that charge 2 can be read by reference to the terms of the particulars contained in charge 1. There was no obvious link between the charges to operate so as to incorporate matters alleged in one charge into the other charge.
128.The use of the adjective ‘adequate’, whether it is of information, instruction or a system, conveys information only when its meaning is identified. As Kirk’s Case made clear in respect of the phrase ‘appropriate’, some readily available standard must be provided to the persons charged to identify what was not done which, if done, might have prevented the accident. The same reasoning applies to the word ‘adequate’.
129. Charge 2 provides no detail of what the VWA alleges was the adequate information, instruction or training required in relation to the cleaning of the chicken processing chain line and associated equipment (authorities omitted)[31].
[31] Baiada Poultry paragraphs 128-129
(e) Further findings of the Supreme Court in relation to charge 3 – s 21(1) & 21(2)(e) - `Adequate Supervision’
61.Charge 3 related to the failure of Baiada to provide, as stated in the particulars `adequate supervision in relation to the cleaning of the chicken processing chain line including associated sprockets, shackles and wash boxes.’
62.The Magistrate found that essential elements of charge 3 were:
details as to who should supervise, the level, location and frequency of supervision required, and why it was necessary (Ruling 1, p 29.1; Ruling 2, paragraph [43]).[32]
[32] Ibid, paragraph 120.
63.The Supreme Court held that:
141. The Magistrate correctly concluded that charge 3 did not give ‘reasonable information as to the nature of the charge’. My reasons for that conclusion are the same as for my conclusion in respect of ground A3(e). The word ‘adequate’, by itself, does not provide a ‘readily available standard’ of what the VWA alleges was required.
142. However, I do not agree with the Magistrate that details were required of who should supervise, the level and frequency of supervision and why it was required. That exceeds what the law regards as necessary.[33]
[33] Ibid, paragraph 141-142.
(f) Further findings of the Supreme Court in relation to charge 3 – s 21(1) & 21(2)(e) - `Adequate information, training and instruction’
64.Charge 2 related to the failure of Baiada, as stated in the particulars (paragraph 2), to ensure that employees `were provided with adequate information, instruction or training in relation to the cleaning of the chicken processing chain line including associated sprockets, shackles and wash boxes.’
65.The Supreme Court held that for the same reasons given above, the adjective ‘adequate’ did not provide reasonable information as to the nature of the charge.”[34]
[34] Ibid, paragraph 146.
(g) Findings of the Supreme Court in relation to charge 4 – s 26
66.Unlike the other charges, the Supreme Court found charge 4 to be valid, because:
...unlike charge 1, it does not have as an essential element that Baiada had the duties of an employer to Mr Singh. It does have as an essential element that the person, here Baiada, did have to an extent the management or control of a workplace. The words of charge 4 contain those allegations. The particulars to charge 4 specify the matters over which it is alleged that the control existed, namely the operation of the chicken processing chain line. I do not consider that any more was required for a valid charge[35].
[35] Ibid, paragraph 159.
Analysis and Findings
67.Returning now to the issues raised by APR in the present case.
Issue 1 – the charges do not satisfy formal requirements of the CPA
68.The first issue raised by APR is that the particulars, which should be properly regarded as forming part of the formal document which is the charge sheet and summons, are undated, unsigned and unauthenticated.[36] As set out above, section 6(3) of the CPA provides that a charge-sheet must be in writing, be signed by the informant personally, and comply with Schedule 1. Schedule 1, clause (1)(b) states that a charge must contain the particulars in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge. Clause 2(1) provides that, subject to sub-clause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
[36] Transcript of hearing, 9 April 2015, p.27.
69.The Prosecution cited Baiada Poultry in which it is stated that `[t]he parties accepted that the charges and the particulars should be read together for the purposes of determining their validity.’[37] APR strongly disagrees that the particulars can be read with the charge in this case, noting that the fact that they have not been signed, dated or authenticated by the Registrar when the charge was issued and filed at court, so should not be regarded by the Court as anything more than particulars.[38]
[37] At paragraph 11.
[38] Paragraph 27, Reply to Submissions for Informant, 9 April 2015.
70.I do not agree with the submission by APR that the particulars do not comply with the CPA because they are unsigned, undated and unauthenticated. The charge sheet was signed by the Informant on the 6th of May 2014 and the particulars were filed at the same time as the charges. The Declaration of Service of Charge Sheet & Summons states that a true copy of the charge sheet and summons together with particulars was served on APR on 9 May 2014. The charge sheet itself refers to the particulars immediately under the text of the charge by the statement `see particulars attached’, and it is evident from this that the charge and the particulars are to be read together. The charges themselves are repeated, not verbatim but in a paraphrased manner, on the sheet entitled particulars. I also accept the Prosecution submission that it is a common practice for an accused to request of the prosecution further and better particulars of charges, so that the accused may better understand the case that an accused has to answer.[39]
[39] Transcript, pages 71-72.
71.For these reasons, I dismiss APR’s argument in relation to Issue 1.
Issue 2 – the charges fail to adequately particularise the nature of the employment relationship between APR and Mr Hannah and disclose no offence known to law
72.APR contended that the charges fail to adequately particularise the nature of the employment relationship between APR and Mr Hannah. I do not accept this argument. In Baiada Poultry the charges that were held to be invalid did not clearly articulate either in the charge or in the particulars the basis upon which Mr Singh was said to be an employee of Baiada. Ginnane J held that at a minimum the charges that rely on section 21(3)(b) should state in the charge or in the particulars that the employer owed the duties of an employer to the employee of the independent contractor, because he was an employee of the independent contractor, which had been engaged by the employer, and that the employer had control of the workplace.[40]
[40] Baiada Poultry paragraph 97.
73.In this case, the particulars to both charges identify the basis of the employment relationship. It is stated at paragraph 4 of the particulars that pursuant to section 21(3)(a) of the OHS Act, Mr Hannah was APR’s employee and APR owed him a duty of care under section 21(1) of the OHS Act, by reason of the operation of section 21(3)(b) of the OHS Act, in that APR exercised control over the work activities of Mr Hannah at its work place.
74.In my view, this fulfils the minimum requirements for charges relying on section 21(3)(b) as stated by Ginnane J. APR’s argument with respect to issue 2 is dismissed.
Issue 3 - the charges do not without reference to the particulars contain all elements of the offence
75.APR’s second argument appeared to be linked to a broader proposition, that charges should be distinguished from particulars, and contain all elements of the offence that the Prosecution is required to prove beyond reasonable doubt. In this case, the way in which the charges have been drafted includes a reference to section 21(3) in the particulars, rather than the charge itself. As stated as above, in Baiada Poultry,[41] Ormiston J held that the provisions of section 21(3)(b) were essential elements of the offence and must be specifically pleaded. APR argues that the separation of the charge and the particulars in this respect offends the principles set down by the Court in Baiada Poultry. It argues further that if the Court finds the charge to be invalid on this basis, as the limitation period for the bringing of charges against APR has expired, the charge is a nullity and cannot be amended.
[41] Ibid.
76.APR submits that the role of particulars is to provide particulars with respect to the elements of the charge and that `the charge alone must withstand scrutiny for, amongst other things, incorporating where applicable the terms of other operative provisions such as section 21(3) of the OH&S Act, namely, for the purpose of deciding whether the charge discloses an offence.’[42] APR also relies on the decision of His Honour Ormiston J in Woolworths (Victoria) Limited v Marsh[43] (‘Woolworths’), stating that:
[42] Reply to Submissions for Informant, 9 April 2015, paragraph 27.
[43] Unreported, Supreme Court of Victoria, per Ormiston J, 12 June 1986.
His Honour found that where an offence relies on a number of proscriptions contained in various sections or sub-sections, etc., and, is therefore `ambulatory”, all applicable parts (or elements) of any such ambulatory statutory offence, must be set out in the informant (sic)/charge (and not in F & BP’s).[44]
[44] Accused’s Woolworth’s Reply, 24 April 2015, p.3.
77.APR’s reference to the Woolworths case appears to be raised as authority to assert two separate arguments. The first is that according to the authority in Baiada Poultry, the charge and not the particulars should contain reference to the elements of section 21(3). The second is that the charges as drafted are ambulatory, in that they are generally cast and could result in charges under other provisions of the OHS Act.
78.In relation to the first issue, the Prosecution argues that the charges and the particulars should be read together. It relies on Schedule 1 of the CPA, and submits that the charges and particulars filed against APR comply with Schedule 1.[45] It relies, in addition to Baiada Poultry which sets out the main authorities on the validity of a criminal charge, on the following authorities in support of its submissions regarding the common law requirements for a charge. The following extracts are verbatim citations from the Prosecution submissions, paragraphs 11, 12 and 14.
[45] Further submissions on behalf of the Informant, 16 April 2015, paragraphs 8-14.
11. In Kirk v Industrial Court (NSW) the High Court relevantly described the applicable common law as follows:
‘The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable practicability as to the nature of the offence charged” (authorities omitted).
12.The Court of Appeal said in DPP Reference No 2 of 2011:
`It is ... necessary to distinguish between what have been called the “essential ingredients of the alleged offence” which must be sufficiently identified, and other facts which the prosecution is obliged to establish but which are not so described.’ (authorities omitted)
….
14. It must be recalled that a charge should be interpreted in the way that a reasonable accused would understand it. As Nettle JA said in Kypri (citing DPP Reference No 2 of 2001):
`A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid. ‘ (authorities omitted)
79.Regarding the issue of amendments out of time, in Kypri Nettle JA also stated:[46]
[46] (2011) 33 VR 157, paragraph 23.
`The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.’ (citations omitted).
80.In my view, the charges and the particulars should be read together in order to determine the validity of the charges. Any issue concerning the validity of a charge must be determined in accordance with the requirements of the CPA. Schedule 1, clause 1 provides that:
1 Statement of offence
A charge must –
(a) state the offence that the accused is alleged to have committed; and
(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information about the nature of the charge.
81.The role of particulars is usually to ‘include the time, place and manner of the acts charged and other particulars of the act, matter or thing alleged by the informant as the foundation of the charge.’[47]
[47] Baiada Poultry, paragraph 65.
82.A plain reading of the language of the Schedule 1, clause 1, makes it clear that particulars form part of a charge. Whilst the role of particulars is to give reasonable information about the nature of the charge, as opposed to stating the offence, the particulars are part of the charge. This is consistent with Baiada Poultry, where it was held that charges that rely on section 21(3)(b) may state either in the charge or in the particulars the elements of section 21(3)(b)[48] to provide the essential elements of the offence.[49]
[48] Ibid, paragraph 97.
[49] Ibid, paragraph 98.
83.This position is supported by Nettle JA’s reasoning in Kypri, where his Honour stated that where the true nature of the offence is apparent on the face of the charge sheet and summons, the defendant may be apprised of the true nature of the offence by the provision in writing of amongst other things, particulars. His Honour stated further that in the case before him `there could have been no doubt about the true nature of the offence alleged…if there had been served with the charge, or even subsequently before the expiration of the limitation period, particulars…’[50]
[50] DPP v Kypri, paragraph 39.
84.The NSW Court of Appeal in John Holland v Industrial Court of NSW[51] held that the charges should be read as a whole, including the particulars supplied in the charge. In doing so, it specifically rejected an argument by Counsel for John Holland that the Court should focus only on the statement of the charge in making its decision, and not make reference to the particulars, noting that the High Court in Kirk’s case had also examined the particulars of the charges.
[51] [2010] NSWCA 338, point 4, summary of findings, referencing paragraph 56 of the judgment.
55 Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order. John Holland, …. submitted that the balance of each Application, which provides particulars of the charge, is not the statement of the offence for the purpose of applying the reasoning of the High Court in Kirk.
56 This is too narrow an interpretation of that reasoning. Indeed, it is inconsistent with the reasoning in Kirk which, as I have set out above, analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked.
85.Further support for this position may be found in case law referred to in the Victorian Criminal Proceedings Manual, which states:[52]
[52] Victorian Criminal Proceedings Manual paragraph 2.4.2 `Particulars’
a. Particulars are necessary in order to inform the accused of the case that he or she will face and allow the court to link the evidence that is given with the allegations in the charge-sheet;
b. A charge-sheet that only identifies the alleged statutory offence will generally be inadequate, as the accused must be informed of how he or she is alleged to have committed the offence;
c. Adequate particulars are essential to a fair trial, but the degree of particularisation required will vary from case to case (authorities omitted).
86.Therefore, APR’s argument in relation to Issue 3 is dismissed.
Issue 4 - the charges are ambulatory and therefore uncertain
87.The next question that APR raises for determination by the Court is whether the fact that section 21(3) of the OHS Act is referred to in the particulars of the charges, rather than the charges itself, makes the charges ambulatory and uncertain, and as such, renders the charges invalid.
88.A provision operates in an ambulatory fashion where it creates offences by reference to contraventions otherwise appearing in different sections of an Act.[53] Where a charge is cast in a manner that generally refers to a part of section of an Act, and that part of section of the legislation incorporates other offences, it may render the charge invalid on the basis that it is uncertain, ambiguous or duplex.
[53] Kypri, per Nettle JA, paragraph 15.
89.For example, in DPP v Kypri, section 49(1) (e) of the Road Safety Act 1986 stated a person is guilty of an offence if he or she refused to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A). Nettle JA found that the charge in this case referred collectively to section 55 as whole. Nettle JA held further that section 27 of the Magistrates’ Court Act 1989, which provided that it is sufficient for a charge to describe an offence in the words of an Act or subordinate instrument by which it is created, or in similar words, had no application in relation to an ambulatory provision like s 49(1)(e), and cited with approval in Woolworths (Victoria) Ltd v Marsh[54] (‘Woolworths’), where Ormiston J stated:
[54] Unreported, Supreme Court of Victoria, per Ormiston J, 12 June 1986.
…It cannot have been intended that [the section] should be relied upon merely by the recitation of the words of the “offence” section for that would tell the defendant nothing.[55]
[55] Ibid page 15.
90.APR relies on the authority in Woolworths as support for its argument. In this case, the accused was charged as follows:
The information of Fred Marsh of Melbourne in the State of Victoria who says that the said defendant on the second day of September 1983, at 4 Station Street, Moorabbin, being a shop keeper did unlawfully fail or neglect to close and keep closed its shop from the hour of five-thirty o’clock in the afternoon of the said day, in contravention of the provisions of the Labour Industry Act 1958.[56]
[56] Ibid, page 1.
91.His Honour Ormiston J held that section 167 of the Magistrates (Summary Proceedings) Act 1975 could not be relied on by the informant
…where the section creating the offence is ambulatory in operation in that it refers to contraventions otherwise appearing in the Act or in another Act.
…Taking sections such as s.570 of the Companies (Victoria) Code and s.205 of the Labour and Industry Act itself, there would be thousands of offences in the one case, and dozens of offences in the other, created by those provisions. It cannot have been intended that s. 167 should be relied merely by the recitation of the words of the `offence’ section for what would tell the defendant nothing.
[90] (2003) 8 VR 288, at 42.
That authority was upheld by the Court of Appeal in AB Oxford Cold Storage,[91] in which Nettle JA[92] stated:
Since s.48(2) of the OHS Acthttp:// a section which contemplates that authority may be given in a particular case, and which allows consent to be given generally, logic implies that the same reasoning is applicable. In each case it is simply a question of whether the prosecution answers to the description of a prosecution which has been authorised.
Consequently, I agree with the judge that the informant’s authority to prosecute was an authority to prosecute in this particular case. Despite that it did not refer to the circumstances with which the proceeding was concerned, it described the prosecution in terms which were capable of accommodating the prosecution and the appellant did not show that the approval did not relate to the prosecution.[93]
[91] (2005) 11 VR 298.
[92] Callaway JA and Byrne AJA agreeing.
[93] Ibid, paragraphs 20-21.
Second, I accept the argument of the Prosecution that in construing the validity of the charges, it is relevant for the Court to bear in mind that the OHS Act is socially beneficial legislation with the objectives of making workplaces as safe as practicable.[94] This approach to construction of the meaning of the
OH S Act was taken by Byrne J in Stratton v Van Driel,[95] in which His Honour stated:
I approach the task of construing this statute conscious that it is social legislation intended to secure the safety and welfare of persons at work and to protect them against the risks of this: s.6. It should, therefore, be construed generously with this object in mind.[96]
[94] Submissions on behalf of the Informant, paragraphs 27 to 33.
[95] [1998] VSC 75.
[96] Ibid, paragraph 15
A similar approach to interpreting the OHS legislation must be taken in the present case when determining the validity of the charges. Section 2 sets out the objects of the OHS Act to which the Court must have regard, and section 4 sets out the principles of health and safety protection. In particular, section 4(1) states that `[t]he importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances’ (emphasis added). The date range referred to in the charges relates to the period of exposure of employees and other persons to the alleged risk.
The offences are about risks that not only employees, but also persons at work and members of the public are exposed to be reasons of an employer’s breach of duty under the OHS Act. The Court of Appeal held in in Australian Char[97] that proof of an offence against ss.21 and 47 (under the equivalent provisions of the previous legislative regime) is not dependent upon there having been an accident and injury to an employee.
55. Byrne v. Baker concerned prosecution of a company director for an offence against s.107 of the Companies Act 1958. When the Court referred to "this concept of negligence" it was speaking of "one aspect of the concept of negligence, as known and acted upon for many years by the courts on misfeasance summonses against directors": (1964) VR at p.453. This was not a reference to common law negligence in the context of a claim by an injured worker against his or her employer. It should not be supposed that the passage, when cited by Fullagar J was intended to convey that s.21 could only operate in the context that injury had been suffered by an employee; or that proof of an offence against s.21 was dependent upon proof of foreseeability of injury to an employee injured in fact.
56. It is one thing to say that s.21 imports concepts applicable to the tort of negligence - a proposition implicit in the joint judgment of Dawson, Toohey and Gaudron JJ in Chugg v. Pacific Dunlop Ltd; Pacific Dunlop Ltd. v. Chugg [1990] HCA 41; (1991) 170 CLR 249at p 265. But it is another matter to conclude that s.21 requires the occurrence of an accident to an employee against which to consider an employer's acts or omissions. The obligation cast upon the prosecution is that it identify, with sufficient particularity, the breach of s.21(1) upon which it relies. In that context the prosecution carries the onus of proof in relation to practicability: Chugg [1990] HCA 41; 170 CLR 249. Nothing in that obligation requires that an accident involving injury to an employee has occurred. It is consistent with this analysis that s.21 "confers neither a civil cause of action nor a defence to a civil action: s.28" (Chugg at 170 CLR p.260). Also consistent is the structure of the Act insofar as it permits the giving of provisional improvement notices, improvement notices and prohibition notices. The former two classes of notices may be given where an opinion is formed either that an employer is, inter alia, contravening a provision of the Act or has committed a contravention in circumstances that make it likely that the same will continue or be repeated. A contravention of s.21 would fit within that framework, a framework which is inconsistent with the requirement that a contravention be dependent upon or tied to an accident involving injury to an employee.
57. It follows from what we have said that proof of an offence against ss.21 and 47 is not dependent upon their having been an accident and injury to an employee. So, considerations apposite to the common law tort of negligence are not, in the context of an alleged breach of s.21, necessarily confined by a requirement of foreseeability of injury to a particular employee, that employee having in fact suffered injury. That does not mean, however, in the event that an accident has occurred and injury has been sustained, that the prosecution is precluded from conducting its case on a narrow basis. That was here the situation. The prosecution sought to establish breach of s.21 simply by reference to the circumstances in which injury was sustained by Evans. It was not obliged to take such a course in principle; but that is the forensic choice it made. Even limited by that context, however, the passage cited from Holmes did no more than set a proper framework for the jury's enquiry[98].
[97] Australian Char, paragraphs 55 to 57
[98] Ibid, paragraphs 55 to 57.
I accept the statement by the Prosecution that Mr Hannah’s injury `is evidence of the height of the risk alleged. The incident that led to his injury is an example of one of the risks that needs to be protected against by a safe system of work and adequate training and supervision. Whether or not the prosecution can establish a direct link between APR’s failings and the incident is a matter for evidence.’[99] The fact that the charges refer to persons other than Mr Hannah reflects the language of the legislation. Counsel for the Prosecution confirmed at the hearing that VWA does not propose to lead evidence that any other persons were injured in the same manner as Mr Hannah, and that Kevin Edward Bearsley and Kelly Steven Hoepo, who are referred to in the charges, are witnesses to the accident.
[99] Submissions on behalf of the Informant, 8 April 2015, paragraph 30.
I find that the Authorisation describes the prosecution in terms that are capable of accommodating the prosecution and that APR has not demonstrated on the balance of probabilities that the terms of the Authorisation do not relate to the Prosecution. I also reject APR’s arguments that the charges are duplex in that they attempt to cover charges against other persons, or that the charges refer to one continuous offence, or refer to uncharged acts.
Issue 7 – the charges fail to particularise other essential matters alleged by the Prosecution
APR’s submission points to the failures of Mr Hannah as contributing to the accident by his own behaviour, and appears to argue that APR had no duty to him because his own behaviours are matters over which they had no control.[100]
[100] Outline of Submissions for the Accused, 7 April 2015, paragraph 29.
In making this argument, APR refers to the decision of Baiada Poultry[101] and seeks to draw a comparison with this case in two respects. First, it states that in this case, as was the case in Baiada Poultry, both the employer and the deemed employer were charged. No issue arises from this. Secondly, it seeks to compare the charges in Baiada with the charges in this case and asserts that `they are similar if not for all intents and purposes the same as those against APR and Fusion.’[102]
[101] Ibid, paragraph 35.
[102] Ibid, paragraph 37.
As stated above, a comparison between the charges in the two cases shows immediately that they are not similar, and I refer to and repeat my reasons as set out above under Issues 2 and 3.
Counsel for the Defence submitted, nevertheless, that the charges were still not adequately particularised, Mr Lindeman made two further arguments by way of general reference to Baiada Poultry:
a. The fact of APR’s control should have been particularised in relation to Mr Hannah’s own alleged failures;[103]
b. The use of the word `sufficiently’ in paragraph 5 of the particulars to charge 2 does not sufficiently particularise the allegation that there was a failure to instruct and supervise employees.
[103] Outline of submissions for the Accused, 7 April 2015, paragraph 40.
Each of these submissions is considered in detail below.
Issue 7(a) – Failure of the prosecution to particularise `control’
For ease of reference, the particulars to Charge 1, paragraph 5(c) state:
You breached your statutory duty of care to your employees including William Hannah in that you failed to:
a. Position an emergency stop button for the conveyor as close as was reasonably practicable to the pit into which paper and cardboard were placed at the bottom of the conveyor for feeding into the baler;
b. Prohibit your employees including William Hannah from climbing on the conveyor;
c. Establish a No Go Zone for the forklift near the conveyor.
APR argues that, in relation to the issue of `control’ as set out in Reilly v Devcon (referred to in the summary of Baiada Poultry set out above), that the particulars provided by the Prosecution in paragraph 5(c) are `at best illusory when understood against Mr Hannah’s failure to apply his FLT brake and disengage the gear.’[104] It is asserted that the failures by Mr Hannah should be `matters over which’ APR should have been alleged to have control.[105]
[104] Outline of Submissions for the Accused (Australian Paper Recovery Pty Ltd), 7 April 2015 (amended date), paragraph 40.
[105] Ibid, paragraph 40.
APR’s argument that the charges are defective for failing to particularise that APR had control over Mr Hannah’s own failures must be rejected. First, Baiada Poultry determined that whilst it was necessary for the prosecution to allege control of the workplace by the deemed employer, it was not necessary for the charges or the particulars to set out details of the evidence relating to control, as these were matters for evidence at the hearing of the charges.[106] Ginnane J held further, that in any case concerning determination of matters over which an employer is said to have control, the principals in Reilly v Devcon Australia Pty Ltd and Stratton’s case are to be applied.[107]
[106] Baiada Poultry, paragraph 99.
[107] ibid, paragraph 99.
The parties made submissions regarding whether or not the evidence suggests that Mr Hannah went `on a frolic of his own’ and thereby caused or contributed to the incident that injured him.[108] It is not appropriate for me, in determining these preliminary issues, to have regard to the evidence proposed to be adduced by the parties during the hearing. The question before me is whether or not the prosecution needs, in order to satisfy the requirements for a valid charge, to particularise its case that Mr Hannah’s behaviour was a matter over which it had control. I have concluded that it needed to do no more than allege control over the workplace in the manner that it has done. The onus is then on the Prosecution at the hearing to prove the allegations outlined in the particulars by leading evidence.
Issue 7(b) - the use of the word `sufficiently’ in paragraph 5 of the particulars to charge 2 does not sufficiently particularise the allegation that there was a failure to instruct and supervise employees
[108] See for example paragraph 29 of Outline of Submissions for the Accused, 7 April 2015, and Submissions on behalf of the Informant, 8 April 2015, paragraph 32.
APR takes issues with the use of the word `sufficiently’ in paragraph 5 of the particulars to charge 2, (see paragraph 27 above). APR’s submissions refer generally to Ginnane J’s reasoning in Baiada Poultry at paragraph 128 (see discussion paragraph 61 above), and paragraphs 130-135. Counsel for APR submits that the use of the word `sufficiently’ in this context commits the same error which the High Court, in Kirk’s case, made clear in respect of the phrase `appropriate’, that it fails to identify a readily available standard that allows accused persons to identify what was not done, which if done, may have prevented the accident. It submits further that there is a lack of detail regarding the failure to provide `supervision’. Ginnane J held that in Baiada Poultry the use of the words `adequate’ in the charge 2, as well as the failure to provide adequate `supervision’ was similarly deficient.[109]
[109] Baiada Poultry, paragraphs 128 and 141.
APR’s argument must be rejected for the following reasons. Charge 2, paragraph 5, identifies specific practical measures that VWA says that APR should have taken to address the risk, but did not take, namely that there was a failure to sufficiently instruct and supervise them to ensure that:
a.They did not climb on the conveyor; and
b.They observed a No Go Zone for the forklift near the conveyor.
The NSW Court of Appeal in John Hollandv Industrial Court of NSW [2010] NSWCA 338 sets out a useful summary of the facts and findings in Kirk’s case:[110]
[110] John Holland, paragraphs 31-40.
31 The High Court in Kirk was dealing with offences under the predecessor legislation, namely, s 15 and s 16 of the Occupational Health and Safety Act 1983. However, all parties in this Court accepted that there was no material difference between those provisions and s 8(1) and (2) of the OH&S Act.
32 In Kirk two propositions are stated in a number of places in equivalent formulations. These propositions are that, in order to establish a contravention:
“A statement of an offence must identify the act or omission said to constitute a contravention” – see [14], [15], [27], [37], [38], [74]; and
The “relevant act or omission which gives rise to the offence” is “a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating” – see [12], [14], [19], [28], [38].33 As the joint judgment put it on one occasion:
“[17] ... A breach or contravention ... is the measure not taken, the act or omission of the employer.”
34 The joint judgment in Kirk considered the five particulars provided under the equivalent of s 8(1) of the OH&S Act, and three particulars provided under the equivalent of s 8(2) of the OH&S Act. Those particulars were (see Kirk at [22]):
“ ... the defendant failed to:
i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
iii. to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;
iv. ensure that the Polaris All Terrain Vehicle (‘ATV’) was only operated by persons with appropriate training.
v. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.”35 With respect to the first three particulars the High Court noted that they did little more than set out the words of the section together with a reference to the ATV. The High Court went on to say:
“[28] ... The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company.”
36 As to the other matters the High Court had said:
“[25] ... Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity.”
37 However, the joint judgment rejected this particular also when it said, with respect to all the particulars:
“[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take ... The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV.”
38 In the event, the High Court concludedthat a jurisdictional error had been committed. This flowed from a misinterpretation of ss 15 and 16 of the 1983 Act there under consideration.
39 The joint judgment said:
“[37] ... his Honour's reasons disclose a wrong understanding of what constituted an offence against ss 15 and 16 and how the defence under s 53(a) was to be applied in proceedings for such an offence. His Honour did not appreciate that no act or omission on the part of the Kirk company had been charged. To the contrary, his Honour accepted the proposition that the prosecutor is not required to demonstrate that particular measures should have been taken to prevent the risk identified.”
40 Their Honours concluded:
“[74] ... Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.”
In Baiada Poultry, the unamended charges merely stated that Baiada had failed to provide `adequate information’ (charge 2) and failed to provide `adequate supervision’ (charge 3).
What is different in this case, which distinguishes it factually from Kirk’s case and Baiada Poultry, is that the word `sufficient’ and the reference to `supervision’ is explained by reference to the measures set out in the particulars. The particulars identify the specific measures that VWA says APR did not, and should have taken. The particulars, therefore, give reasonable information as to the nature of the charge.
Conclusion
I find for the above reasons that the charges sufficiently disclose the nature of the offences and contain the particulars that are necessary to give reasonable information as to the nature of the charges.
APR’s application is dismissed.
I will now hear the parties on costs.
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