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

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3) [2023] NSWDC 468 Hearing dates: 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 November 2022 14, 15 December 2022 12 April 2023 10 May 2023 28, 30, 31 August 2023 1 September 2023 3 November 2023 Date of orders: 16 November 2023 Decision date: 16 November 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In proceedings 2021/284164 (the "Directions" Amended Summons in relation to 2 February 2020): (1) The elements set out in the Amended Summons have been proved beyond reasonable doubt. (2) I find the defendant Qantas Ground Services Pty Ltd guilty. (3) The matter will be listed for a Sentence Hearing on a date convenient to the parties. (4) Costs are reserved for later determination. In proceedings 2021/284149 (the "Issues and Concerns" Summons in relation to 2 February 2020): (1) Summons dismissed. (2) Costs are reserved for later determination. In proceedings 2021/284183 (the "Directions" Amended Summons in relation to 7 February 2020): (1) The prosecution has not proved all of the elements of the offence beyond reasonable doubt. (2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). (3) Costs are reserved for later determination. (4) The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. In proceedings 2021/284172 (the "Issues and Concerns" Summons in relation to 7 February 2020): (1) The prosecution has not proved all of the elements of the offence beyond reasonable doubt. (2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). (3) Costs are reserved for later determination. (4) The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. Catchwords: CRIMINAL LAW – elements of offence – whether defendant engaged in discriminatory conduct – whether for a prohibited reason – whether reason was the dominant reason – alternative charges CRIMINAL LAW – prosecution – work health and safety – discriminatory conduct – alter position of worker to worker's detriment – what constitutes a threat – health and safety representatives – power to direct cessation of unsafe work – whether there was a reasonable concern that the work would expose workers to a serious risk, emanating from an immediate or imminent exposure to a hazard – whether there was consultation and attempt to resolve issue – legal consequences of direction to cease unsafe work where there had been no required consultation OTHER – health and safety representative directed workers to cease cleaning planes arriving from China – risk of contracting COVID-19 from surfaces – health and safety representative stood down because he gave direction to cease unsafe work Legislation Cited: Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 46, 81 Criminal Appeal Act 1912 (NSW), s 5AE Criminal Procedure Act 1986 (NSW), s 133(2) Evidence Act 1995 (NSW), s 165 Fair Work Act (2009) (Cth) Work Health and Safety Act 2011 (Qld), s 85 Work Health and Safety Act 2011 (NSW), ss 4, 46, 47, 48, 49, 50, 66, 68, 70, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 93, 99, 104, 105, 106, 110 Work Health and Safety Regulation 2017 (NSW), cl 24 Cases Cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092; (2009) 189 IR 165 CFMMEU v Sydney International Container Terminals Pty Ltd [2020] FWC 4983 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 Constantanidis v R [2022] NSWCA 4 Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited (No. 2) [2015] FCA 1088 Department of Public Prosecutions (VIC) v ACME Storage Pty Ltd [2017] VSCA 90 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302 Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Victorian WorkCover Authority v Patrick Stevedoring Pty Ltd [2011] VMC 62 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Texts Cited: New England Journal of Medicine, "Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany", 30 January 2020 Australian Government Department of Health, "Novel coronavirus (2019-nCoV)" Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Qantas Ground Services Pty Ltd (Defendant) Representation: Counsel: P McDonald SC with M Moir (Prosecutor) B D Hodgkinson SC with B Rauf (Defendant)