District Court New South Wales Medium Neutral Citation: SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540 Hearing dates: 3 November 2022 Date of orders: 8 November 2022 Decision date: 08 November 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In matters: 2021/284149, 2021/284164, 2021/284172, 2021/284183 (1) Dismiss the Notice of Motion filed by the defendant on 14 October 2022. (2) Order the defendant to pay the prosecutor's costs of the Notice of Motion. Catchwords: CRIMINAL PROCEDURE – application for stay of proceedings until prosecutor elects whether it will withdraw two of the summonses – where summonses plead different dominant reasons for the same conduct – what are the elements of each offence – what evidence would be sufficient to procure a legal conviction – what must be proved to establish commission of each of the offences – whether charges can be brought in the alternative Legislation Cited: Criminal Procedure Act 1986 (NSW), s 247H Work Health and Safety Act 2011 (NSW), ss 85, 104, 105, 106, 110 Cases Cited: Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] 225 ALR 226 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Category: Procedural rulings Parties: SafeWork NSW (Prosecutor) Qantas Ground Services Pty Ltd (Defendant) Representation: Counsel: P McDonald SC with M Moir (Prosecutor) B Hodgkinson SC with B Rauf (Defendant) Solicitors: Department of Customer Service (Prosecutor) Ashurst (Defendant) File Number(s): 2021/284149, 2021/284164, 2021/284172, 2021/284183 Judgment Introduction 1. The prosecutor SafeWork NSW (SafeWork) filed four Summonses on 6 October 2021. Each Summons charges the defendant Qantas Ground Services Pty Ltd (Qantas) with engaging in discriminatory conduct for a prohibited reason contrary to s 104(1) of the Work Health and Safety Act 2011 (NSW) (the Act). 2. All four charges relate to conduct towards an employee Mr Seremetidis, whose duties involved cleaning and servicing aircraft arriving in Sydney. Each Summons pleads as follows: "1. At all material times, Qantas Ground Services Pty Ltd (QGS) being a corporation, was a person within the meaning of section 104 of the Work Health and Safety Act 2011 (the Act). 2. At all material times QGS was a wholly owned subsidiary of Qantas Airways Limited (Qantas) and provided labour hire to Qantas. 3. On or about 24 April 2014, Mr Theocharis Seremetidis (Mr Seremetidis) commenced employment with QGS. Mr Seremetidis was employed by QGS in the position of Ground Crew, Fleet Presentation, at Sydney International Airport (SIT). Mr Seremetidis' duties involved cleaning and servicing aircraft arriving at SIT. 4. In December 2017, Mr Seremetidis was elected as a Health and Safety Representative (HSR) for the SIT Fleet Presentation Group (the work group). On 20 April 2018, Mr Seremetidis completed a five day HSR training course. 5. At all material times Mr Seremetidis continued to act in his capacity as a HSR. 6. Between 26 January 2020 and 2 February 2020, workers including Mr Seremetidis raised issues and concerns with QGS regarding the risk of workers in the work group contracting COVID-19 whilst they were cleaning and servicing passenger planes arriving at SIT from China." 1. On 14 October 2022 the defendant filed a Notice of Motion (without nominating a return date) seeking a stay of the proceedings until the prosecutor elects whether it will withdraw two of the Summonses. 2. Qantas relies upon the affidavit of Ms Brooks solicitor dated 14 October 2022 (DX 1) which refers to a letter dated 7 October 2022 sent by the solicitors for Qantas, raising concerns relating to the Summonses and inviting the prosecutor to withdraw two of the Summonses. 3. The Notice of Motion was first listed for mention on 19 October 2022. Explanation by the Prosecutor: Alternative Charges 1. Mr Moir, who appeared for SafeWork on 19 October 2022, informed the court that SafeWork would not be withdrawing any of the four Summonses. He explained that SafeWork would be seeking convictions on the two "Directions" Summonses (as explained below). If SafeWork fails to obtain convictions on the Directions Summonses then it will seek, in the alternative, convictions on the two "Issues and Concerns" Summonses (also explained below). 2. The position of SafeWork was confirmed in its written submissions (MFI 3). SafeWork submitted that it had brought two sets of charges in the alternative. It will press for Qantas to be convicted of the two charges pleaded in the Directions Summonses. In the event that the court convicts Qantas, the alternative charges being the Issues and Concerns Summonses will be dismissed by the court. However, if SafeWork is unsuccessful on the Directions Summonses, it will seek convictions on the alternative charges being the Issues and Concerns Summonses. SafeWork will not be pursuing convictions in respect of all four Summonses at the trial set to commence on 14 November 2022. The Act 1. Section 104 of the Act as in force in February 2020 provided as follows: "104 Prohibition of discriminatory conduct (1) A person must not engage in discriminatory conduct for a prohibited reason. Maximum penalty: (a) in the case of an individual - $100,000, or (b) in the case of a body corporate - $500,000. (2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct. Note: Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason." 1. Section 105 of the Act defines discriminatory conduct. The definition includes: 1. If the person puts a worker to his or her detriment in the engagement of the worker – s 105(1)(a)(iii). 2. If the person alters the position of the worker to the worker's detriment – s 105(1)(a)(iv). 1. Section 105(2) of the Act provides as follows: "(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action." 1. Section 106 of the Act defines "prohibited reason". Discriminatory conduct is engaged in for a prohibited reason if it is engaged in because (inter alia): 1. The worker exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee – s 106(c). 2. The worker raises or has raised or proposes to raise an issue or concern about worker health and safety with other workers – s 106(h)(vi). 1. Section 110 of the Act deals with proof of discriminatory conduct. It provides: "110 Proof of discriminatory conduct (1) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution-- (a) proves that the discriminatory conduct was engaged in, and (b) proves that a circumstance referred to in section 106 (a)-(j) existed at the time the discriminatory conduct was engaged in, and (c) adduces evidence that the discriminatory conduct was engaged in for a prohibited reason. (2) The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves on the balance of probabilities, that the reason was not the dominant reason for the conduct. (3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof." "Directions" Summonses 2 February 2020 Conduct 1. In proceedings 2021/284164 the Summons alleges that: 1. On 2 February 2020 Qantas stood down Mr Seremetidis from his employment. 2. Mr Seremetidis was directed not to attend work until an investigation was completed by Qantas. 3. In standing him down, Qantas altered the position of Mr Seremetidis to his detriment in that he no longer had access to paid overtime or the workplace generally. 4. Qantas engaged in discriminatory conduct within the meaning of s 105 of the Act towards Mr Seremetidis. 5. This conduct was engaged in for a prohibited reason within the meaning of s 106 of the Act. 6. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had exercised or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act. 1. Section 85(1) of the Act provides that a HSR may direct a worker to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. 7 February 2020 Conduct 1. In proceedings 2021/284183 the Summons alleges that: 1. On 7 February 2020, in addition to having already stood down Mr Seremetidis from his employment, Qantas threatened to take disciplinary action against Mr Seremetidis, including a threat to issue him with a warning or to terminate his employment. 2. Qantas engaged in discriminatory conduct within the meaning of s 105 of the Act towards Mr Seremetidis. 3. This conduct was engaged in for a prohibited reason within the meaning of s 106 of the Act. 4. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had exercised or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act. "Issues and Concerns" Summonses 1. In proceedings 2021/284149 the charge is that on 2 February 2020 Qantas stood down Mr Seremetidis from his employment and altered his position to his detriment. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China. 2. In proceedings 2021/284172 the charge is that on 7 February 2020 in addition to having already stood down Mr Seremetidis from his employment, Qantas threatened to take disciplinary action against him, including a threat to issue him with a warning or to terminate his employment. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China. Procedural History 1. It is unsatisfactory that this issue is being raised so long after the Summonses were filed and so close to the hearing. The four Summonses were filed on 6 October 2021. The matters first came before the District Court on 6 December 2021 when they were adjourned for 10 weeks to 14 February 2022. 2. On 14 February 2022 the matters were adjourned by consent to 14 March 2022 when pleas of not guilty were entered and the matters were stood over to the Work Health and Safety List on 28 March 2022 for directions. 3. On 28 March 2022 the parties appeared before me and I made orders for disclosure notices and a preliminary conference. The matters were stood over for directions on 4 April 2020, with liberty to apply. 4. On 4 April 2022 I listed the proceedings for hearing on 14 November 2022 and appointed a Case Readiness Hearing on 5 August 2022. 5. On 1 August 2022 the parties filed a Preliminary Conference Form pursuant to s 247H(8) of the Criminal Procedure Act 1986 (NSW) (CPA). There had been a preliminary meeting on 21 July 2022 attended by senior and junior counsel and solicitors for both parties. The Form dealt with an indicative witness list, proposed documents to be tendered by the prosecutor and discussions about reaching agreement on a Statement of Facts. 6. On 5 August 2022 junior counsel for both parties appeared before me at the Case Readiness Hearing. The hearing date of 10 days commencing on 14 November 2022 was confirmed. There were directions made concerning a witness list, tender bundles and a statement of facts. 7. On 14 October 2022 the defendant filed the Notice of Motion presently before the court. Why the matter now raised by Qantas was not raised much earlier was not satisfactorily explained. The perfect opportunity to ventilate any concerns was back on 21 July 2022 when Qantas had six lawyers attending the s 247H CPA preliminary conference, or at the latest at the Case Readiness Hearing before me on 5 August 2022. Consideration of Submissions 1. In written submissions dated 14 October 2022 (MFI 1) Qantas points out that the two Summonses relating to alleged discriminatory conduct on 2 February 2020 plead two different dominant reasons for the conduct. Similarly, the two Summonses relating to alleged discriminatory conduct on 7 February 2020 plead two different dominant reasons for the conduct. Qantas submits that in order for a prohibited reason to also be the dominant reason at law, the reason for the conduct must be the "ruling, prevailing or most influential" reason and cannot be "merely a primary or substantial" reason for the conduct. In other words, there can only be, in law, one dominant reason for any discriminatory conduct. 2. That proposition is undoubtedly correct. SafeWork did not dispute this. 3. In MFI 1 Qantas submitted that: 1. If the Prosecution is permitted to pursue all of the Summonses, the Defendant is exposed to substantial prejudice in circumstances where it is improper and not legally permissible for the Prosecution to rely on two different reasons and assert that both of them are dominant reasons for the same alleged discriminatory conduct. 2. The Prosecution should be required to elect whether it will proceed to hearing on either the Directions Summonses or the Issues and Concerns Summonses. 3. Depending on the Prosecution's election, the Summonses containing the allegation which is not to proceed should be dismissed. 4. A stay should be ordered in respect of all four matters until the Prosecution elects whether it is pursuing the Summonses that contain the Directions allegation or the Issues and Concerns allegation. 1. There was no detail in MFI 1 to identify how there was "substantial prejudice", just that bare assertion. Nor was anything further said on "prejudice", let alone "substantial prejudice", in later written submissions (MFI 2) or in oral submissions. 2. Qantas referred (MFI 1, par 22) to Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] 225 ALR 226, where a finding was made that where there are two reasons for a decision, and they are of equal weight, then "neither is dominant". Qantas further submitted that in these proceedings where the prosecutor has alleged there are two reasons for the same discriminatory conduct "such an allegation is not permissible at law as neither will be dominant in the legal sense" (MFI 1, par 23). 3. Why that is the only conclusion is not immediately apparent. There are a number of possibilities which might emerge from consideration of all four Summonses at a trial. There could be a finding that the two pleaded prohibited reasons were of equal weight, and thus neither is dominant. Qantas would arguably be acquitted on all counts. There could be a finding that some other reason, not the two pleaded, was the dominant reason. Qantas would arguably be acquitted on all counts. There could be a finding that one of the pleaded reasons was dominant and the other pleaded reason was subsidiary or less than dominant. Subject to proof of other matters, Qantas could be convicted of the two charges, relating to 2 February 2020 and 7 February 2020, if the court came to a finding that one pleaded prohibited reason was the dominant reason. 4. Just because there are, in separate Summonses, allegations in relation to two dominant reasons, does not mean that those reasons exist in the first place, let alone that they are dominant reasons. Charges only make allegations, they do not establish facts. I reject the submission made in MFI 1, par 23 that it is not permissible to allege, in separate proceedings, two different dominant reasons. Whether they exist or not, and whether one prohibited reason is the dominant reason will be established by evidence at a trial. 5. Qantas provided a second set of written submissions dated 2 November 2022 (MFI 2). Qantas submitted that because two dominant reasons had been alleged for the same discriminatory conduct, such allegations "are mutually exclusive and destructive of each other" (MFI 2, par 10). Again, that is not necessarily the case, as the outcome will depend upon findings made on the evidence as to whether either pleaded reason (if established) was dominant, or whether the two reasons were of equal weight, or whether neither pleaded reason was the dominant reason for the discriminatory conduct. 6. In MFI 2, and in oral submissions, Qantas placed emphasis upon the need to identify the elements of each offence and not the evidence required in respect of each offence, citing (in MFI 2, par 13) Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [20]-[21]. Qantas submitted that the elements of the offences charged are identical, or in the alternative, that all of the elements of one offence are wholly included in the other (MFI 2, par 13). 7. In Pearce the High Court said: "20. In each of Chia Gee v Martin and Li Wan Quai v Christie, Griffith CJ identified the test for whether a plea in bar would lie as being 'whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first'. At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events. 21. Further, when it is said that it is enough if the offences are 'substantially' the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration." (Emphasis added) 1. Senior Counsel for Qantas submitted that the elements charged in the Directions Summonses and the elements charged in the Issues and Concerns Summonses were identical. Qantas submitted that there are three elements in an offence under s 104: 1. A person must not engage in discriminatory conduct. 2. For a prohibited reason. 3. The prohibited reason must be the dominant reason for the discriminatory conduct. 1. In oral submissions made by Senior Counsel for SafeWork the following was said: 1. The Summonses put forward different bases to allege a prohibited reason. 2. The enquiry as to the elements of each offence requires the court not to look only at the bare words of s 104, but also take into account the factual basis pleaded. 3. There was no express prohibition on bringing s 104 charges in the manner adopted by the prosecutor in these proceedings. 1. I do not read pars 20 and 21 of the decision of the High Court in Pearce as restrictively as submitted by Senior Counsel for Qantas. The High Court said that the appropriate enquiry is about what evidence would be sufficient to procure a legal conviction. The court must look at what must be proved to establish commission of each of the offences. The enquiry is not to identify which witnesses might be called or what they could say. At this stage, when the trial has not started, the court is entirely ignorant of the witnesses who might be called or what they might say. However, consideration of the four Summonses discloses that the evidence required to secure a conviction on the Directions Summonses is not the same as the evidence required to secure a conviction on the Issues and Concerns Summonses. 2. If the appropriate enquiry was to simply ask what are the three legal concepts found in the statute creating the offence, that would be to ignore the fact that the prohibited reason pleaded in the Directions Summonses is different to the prohibited reason pleaded in the Issues and Concerns Summonses. If the appropriate enquiry was just to look at the three legal concepts in s 104, that would be to ignore the reality that the prosecution must call evidence on the Directions Summonses which would be different to the evidence to be called on the Issues and Concerns Summonses. 3. One of the key elements in all four Summonses is the allegation that the discriminatory conduct was engaged in for a prohibited reason. The prohibited reason in relation to the Directions Summonses is an allegation that Qantas engaged in the discriminatory conduct because Mr Seremetidis had exercised or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act. That prohibited reason pleaded in the Directions Summonses is a reason proscribed by s 106(c) of the Act. 4. By contrast, the allegation in the Issues and Concerns Summonses is that Qantas engaged in discriminatory conduct because Mr Seremetidis had raised an issue or concern about work health and safety with other workers. That prohibited reason pleaded in the Issues and Concerns Summonses is a reason proscribed by s 106(h)(vi) of the Act. 5. I reject the submission of Qantas that the elements in the Directions Summonses are the same as the elements in the Issues and Concerns Summonses, when clearly each pleads a different prohibited reason. While there would probably be some factual overlap between the two pleaded reasons, the evidence which would be sufficient to procure legal convictions on the Directions Summonses would not necessarily be sufficient to procure a legal conviction on the Issues and Concerns Summonses, and vice versa. 6. To say that the elements in the Directions Summonses are not the same as the elements in the Issues and Concerns Summonses is not to embark upon the enquiry prohibited by the decision in Pearce. The court cannot look at which witnesses might be called or what they could say. Such matters are entirely unknown to the court at this stage. The proper enquiry mandated by Pearce, which is to ask what must be proved to establish commission of each of the offences, can be answered purely by reference to the wording of the four Summonses. As previously recited, the elements of the charge in the Directions Summonses are not identical to the elements in the Issues and Concerns Summonses. 7. I therefore reject the submission of Qantas that it is "improper and not legally permissible" to bring and pursue all four Summonses. 8. SafeWork made detailed submissions in MFI 3 as to why it could bring charges in the alternative. There was no dispute that in an appropriate case the prosecutor could bring charges in the alternative. 9. Qantas argued that the charges brought "are not alternative charges as they relied on the proof of the same legal elements" (MFI 2, par 17). I have rejected that argument above for reasons there set out. 10. As the High Court said in Pearce at [28]: "…There is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plead in bar could be upheld." (Emphasis added) 1. The two Directions Summonses require proof of the following fact: that the dominant reason for engaging in discriminatory conduct was because Mr Seremetidis had exercised or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act. 2. The two Issues and Concerns Summonses require proof of the following fact: that the dominant reason for engaging in discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers. 3. It is not correct to regard the Directions Summonses as identical with the Issues and Concerns Summonses, when the Directions Summonses require proof of a particular prohibited reason and the Issues and Concerns Summonses require proof of a different prohibited reason. 4. To adopt the language of the High Court in Pearce, the offences in the Directions Summonses require proof of a fact which the Issues and Concerns Summonses do not, and vice versa. Conclusion and Orders 1. Senior Counsel for Qantas pointed out that there was nothing in the wording of the four Summonses which indicated that two of them were alternative charges. That is so. However, the prosecutor has made it plain to the court that the two Issues and Concerns charges are to be treated as an alternative to the two Directions charges. The trial will be conducted on that basis. 2. For the reasons set out above, I find that Qantas is not entitled to the relief sought in the Notice of Motion filed on 14 October 2022. The Motion will be dismissed. Costs were not argued, but in my view they should follow the event. 3. In each of the four matters, the orders of the court are: 1. Dismiss the Notice of Motion filed by the defendant on 14 October 2022. 2. Order the defendant to pay the prosecutor's costs of the Notice of Motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2022