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) Solicitors: Department of Customer Service (Prosecutor) Ashurst (Defendant) File Number(s): 2021/284149, 2021/284164, 2021/284172, 2021/284183 Judgment Introduction The Task of this Court Discriminatory Conduct The "Directions" Summonses 2 February 2020 Conduct 7 February 2020 Conduct The "Issues and Concerns" Summonses 2 February 2020 Conduct 7 February 2020 Conduct Relevant Provisions of the WHS Act Consultation under the WHS Act Health and Safety Representatives under the WHS Act Issue Resolution under the WHS Act Right to Cease or Direct Cessation of Unsafe Work under the WHS Act Provisional Improvement Notices under the WHS Act The Lead Up to 2 February 2020 24 January 2020 25 January 2020 26 January 2020 27 January 2020 28 January 2020 29 January 2020 30 January 2020 31 January 2020 1 February 2020 2 February 2020 3 February 2020 4 February 2020 5 February 2020 6 February 2020 7 February 2020 Consideration of the Letter of Allegations Were the 7 February 2020 Allegations the same as the 2 February 2020 Allegations? What was the Reason for Standing Down Mr Seremetidis on 2 February 2020? 21 February 2020 3 March 2020 4 March 2020 24 March 2020 30 March 2020 2 February 2021 Proceedings 2021/284164 : The "Directions" Summons re 2 February 2020 Was there Discriminatory Conduct by QGS? Did Mr Seremetidis Exercise a Power under the WHS Act? Reasonable Concern Exposure To Serious Risk Immediate or Imminent Exposure to a Hazard Consultation – a Necessary Precursor Consideration: The Directions given by Mr Seremetidis Fair Work v CFMMEU Consideration Dominant Reason Proceedings 2021/284149 : The "Issues and Concerns" Summons re 2 February 2020 Proceedings 2021/284183 : The "Directions" Amended Summons re 7 February 2020 Proceedings 2021/284172 : The "Issues and Concerns" Summons re 7 February 2020 Did part of the Letter of Allegations constitute a Threat? Orders Judgment Introduction 1. In the early months of 2020 the world was becoming aware of a serious health risk posed by a virus. China appeared to be the initial epicentre of the virus, but it was spreading through the world by international air travel. Airlines in particular were concerned by the spread of the virus. 2. The events which are the subject of these prosecutions occurred in January and early February 2020. At that time the virus was simply called the Coronavirus, so that is how it will be referred to in this judgment. It was not until later in 2020 that it was formally given the name COVID-19. It was also later in the year that a pandemic was officially declared. 3. The defendant Qantas Ground Services Pty Ltd (QGS) was a wholly owned subsidiary of Qantas Airways Limited (Qantas) and was a part of the Qantas Group. QGS provided labour hire services to the Qantas Group. 4. Mr Theo Seremetidis was employed by QGS to work at Sydney International Terminal (SIT) as a high lift truck driver. Mr Seremetidis was also an elected Health and Safety Representative (HSR) for the SIT Fleet Presentation Group provided by QGS to Qantas. 5. On 2 February 2020 QGS stood down Mr Seremetidis from his employment. He was directed not to attend work until an investigation was completed by QGS. 6. By an Amended Summons filed in proceedings 2021/284164, SafeWork NSW (SafeWork), being the regulator as defined by s 4 of the Work Health and Safety Act 2011 (NSW) (the WHS Act), charged QGS with engaging in discriminatory conduct for a prohibited reason, contrary to the WHS Act. The allegation in those proceedings was that on 2 February 2020 QGS altered the position of Mr Seremetidis to his detriment and that the dominant reason for standing him down was a prohibited reason, because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the WHS Act. 7. For reasons set out below, I have come to the conclusion that the elements of this offence have been established beyond a reasonable doubt and that QGS is guilty of the offence charged. 8. An alternative charge was brought in relation to the events of 2 February 2020, in proceedings 2021/284149. Since I will make a finding that QGS is guilty of the principal charge brought in proceedings 2021/284164, I will not go on to consider whether the alternative charge has been established. That charge will be dismissed without any consideration of the merits, as requested by the prosecutor. 9. SafeWork also brought proceedings against QGS arising out of events which occurred on 7 February 2020. The principal charge, brought in proceedings 2021/284183, was that QGS engaged in discriminatory conduct for a prohibited reason on 7 February 2020, contrary to the WHS Act. In particular, it was said that QGS threatened to take disciplinary action against Mr Seremetidis, because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the WHS Act. 10. For reasons set out below, I have come to the view that SafeWork has failed to establish that QGS made a threat against Mr Seremetidis to take disciplinary action on 7 February 2020, as alleged. I will therefore find that this charge has not been proved. 11. An alternative charge was brought in relation to the events of 7 February 2020. In proceedings 2021/284172, SafeWork alleged that the dominant reason for threatening Mr Seremetidis with dismissal or disciplinary warning was a prohibited reason, because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China. 12. For reasons set out below, I have come to the view that SafeWork has failed to establish that QGS made a threat against Mr Seremetidis to take disciplinary action, on 7 February 2020, as alleged. I will therefore find that this charge has not been proved. The Task of this Court 1. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict, free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. 2. The prosecution bears the onus of proving the guilt of the defendant at all times, subject to one matter where the defendant bears the onus of proof. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt. In this particular case there is a reverse onus upon the defendant on one issue, arising from s 110 of the WHS Act. 3. The defendant is presumed by law to be innocent of the offence unless and until the evidence which I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty. 4. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence. 5. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW). 6. I must consider the factual situation in late January and early February 2020. I must determine the issues without the benefit of hindsight and only having regard to what was known at the relevant time. 7. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4. In the present case many of the witnesses worked for the defendant but were made redundant later in the pandemic. Some witnesses still work for QGS. I must take into account that some of the memories of the witnesses might be influenced by what they now know about Coronavirus, rather than what they knew at the relevant time. 8. I say straight away that I formed the impression that all witnesses were doing their best to tell the truth. I regard any discrepancy between their oral evidence and any prior statements to be due to lapse of time. In particular I formed a favourable impression of Mr Seremetidis. His evidence in chief and in cross-examination extended over many days. His memory of events was detailed and largely accurate, when assessed against contemporaneous documents. I formed the view that he attempted to carry out his duties as a HSR conscientiously and carefully. Discriminatory Conduct 1. Section 104 of the WHS Act as in force in February 2020 provided as follows: "104 Prohibition of discriminatory conduct (1) A person must not engage in discriminatory conduct for a prohibited reason. Maximum penalty: (a) in the case of an individual - $100,000, or (b) in the case of a body corporate - $500,000. (2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct." 1. Thus the elements of the offence are that a person must not: 1. engage in discriminatory conduct, 2. for a prohibited reason, 3. where the prohibited reason is the dominant reason for the discriminatory conduct. 1. Section 105 of the WHS Act defines discriminatory conduct. The definition includes: 1. If the person puts a worker to his or her detriment in the engagement of the worker – s 105(1)(a)(iii). 2. If the person alters the position of the worker to the worker's detriment – s 105(1)(a)(iv). 1. Section 105(2) of the WHS Act provides as follows: "(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action." 1. Section 106 of the WHS Act defines "prohibited reason". Discriminatory conduct is engaged in for a prohibited reason if it is engaged in because (inter alia): 1. The worker exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee – s 106(c). 2. The worker raises or has raised or proposes to raise an issue or concern about worker health and safety with other workers – s 106(h)(vi). 1. Section 110 of the WHS Act deals with proof of discriminatory conduct. It provides: "110 Proof of discriminatory conduct (1) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution-- (a) proves that the discriminatory conduct was engaged in, and (b) proves that a circumstance referred to in section 106 (a)-(j) existed at the time the discriminatory conduct was engaged in, and (c) adduces evidence that the discriminatory conduct was engaged in for a prohibited reason. (2) The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves on the balance of probabilities, that the reason was not the dominant reason for the conduct. (3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof." The "Directions" Summonses 2 February 2020 Conduct 1. In proceedings 2021/284164 the Amended Summons alleges that: 1. On 2 February 2020 QGS stood down Mr Seremetidis from his employment. 2. Mr Seremetidis was directed not to attend work until an investigation was completed by QGS. 3. In standing him down, QGS altered the position of Mr Seremetidis to his detriment in that he no longer had access to paid overtime or the workplace generally. 4. QGS engaged in discriminatory conduct within the meaning of s 105 of the WHS Act towards Mr Seremetidis. 5. This conduct was engaged in for a prohibited reason within the meaning of s 106 of the WHS Act. 6. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the WHS Act. 1. Section 85(1) of the WHS Act provides that a HSR may direct a worker to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. This will be discussed further below. 7 February 2020 Conduct 1. In proceedings 2021/284183 the Amended Summons alleges that: 1. On 7 February 2020, in addition to having already stood down Mr Seremetidis from his employment, QGS threatened to take disciplinary action against Mr Seremetidis, including a threat to issue him with a warning or to terminate his employment. 2. QGS engaged in discriminatory conduct within the meaning of s 105 of the WHS Act towards Mr Seremetidis. 3. This conduct was engaged in for a prohibited reason within the meaning of s 106 of the WHS Act. 4. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the WHS Act. 1. As previously recited, the "Directions" Summonses are the principal charges pursued by SafeWork. The "Issues and Concerns" Summonses 2 February 2020 Conduct 1. In proceedings 2021/284149 the charge is that on 2 February 2020: 1. QGS stood down Mr Seremetidis from his employment and altered his position to his detriment. 2. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China. 7 February 2020 Conduct 1. In proceedings 2021/284172 the charge is that on 7 February 2020 in addition to having already stood down Mr Seremetidis from his employment: 1. QGS threatened to take disciplinary action against him, including a threat to issue him with a warning or to terminate his employment. 2. The dominant reason for engaging in the discriminatory conduct was because Mr Seremetidis had raised an issue or concern about work health and safety with other workers, namely the risk of workers contracting COVID-19 while cleaning and servicing planes arriving from China. 1. The "Issues and Concerns" Summonses are alternative, or "back-up" charges to the "Directions" Summonses. A last-minute attempt by SafeWork to make the "Issues and Concerns" Summonses the principal charges and the "Directions" Summonses the alternative charges was not permitted (see Ruling dated 30 August 2023). SafeWork submitted and QGS accepted that: if there was a finding of guilt on a principal charge then the alternative charge should be dismissed; if a principal charge was not proved then the court should go on to consider the alternative charge. Relevant Provisions of the WHS Act Consultation under the WHS Act 1. Part 5 of the WHS Act deals with "Consultation, representation and participation". Contained within Divisions 1 and 2 are the following sections: "46 Duty to consult with other duty holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. Maximum penalty— (a) in the case of an individual—230 penalty units, or (b) in the case of a body corporate—1,155 penalty units. Division 2 Consultation with workers 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. Maximum penalty— (a) in the case of an individual—230 penalty units, or (b) in the case of a body corporate—1,155 penalty units. (2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. (3) The agreed procedures must not be inconsistent with section 48. 48 Nature of consultation (1) Consultation under this Division requires— (a) that relevant information about the matter is shared with workers, and (b) that workers be given a reasonable opportunity— (i) to express their views and to raise work health or safety issues in relation to the matter, and (ii) to contribute to the decision-making process relating to the matter, and (c) that the views of workers are taken into account by the person conducting the business or undertaking, and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters— (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for— (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section." 1. The words "consult" and "consultation" are not defined in the WHS Act. The Macquarie Dictionary gives the following meaning for the verb "consult": 1. To seek counsel from; ask advice of. 2. To refer to for information. 3. To have regard for a person's interest, convenience etc in making plans. 4. To consider or deliberate; take counsel; confer. 1. The Macquarie Dictionary defines the noun "consultation" to mean: 1. The act of consulting; conference. 2. A meeting for deliberation. 1. In Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited (No. 2) [2015] FCA 1088 at [274] Murphy J cited the following propositions, derived from earlier cases, with approval: "A key element of [the content of consultation] is that the party to be consulted be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according to the nature and circumstances of the case. In other words, what will amount to 'consultation' has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto." 1. In Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at p 1124 the Judicial Committee of the Privy Council considered a consultation obligation in an ordinance in respect of measures to alter local government boundaries. The Judicial Committee said: "The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed; they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties; they must be free to say what they think." 1. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 Logan J said at [45]: "To elaborate further on the ordinary meaning and import of a requirement to 'consult' may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps with detailed elaboration, 'this is what is going to be done' and saying to that person 'I'm thinking of doing this; what have you got to say about that?' Only in the latter case is there 'consultation'." Health and Safety Representatives under the WHS Act 1. Division 3 of Part 5 of the WHS Act deals with HSRs. A HSR may be elected "to represent workers who carry out work for the business or undertaking": s 50 of the WHS Act. 2. The following sections of the WHS Act, in relation to HSRs, are relevant to the present proceedings: "66 Immunity of health and safety representatives A health and safety representative is not personally liable for anything done or omitted to be done in good faith— (a) in exercising a power or performing a function under this Act, or (b) in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act. 68 Powers and functions of health and safety representatives (1) The powers and functions of a health and safety representative for a work group are— (a) to represent the workers in the work group in matters relating to work health and safety, and (b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person's representative in compliance with this Act in relation to workers in the work group, and (c) to investigate complaints from members of the work group relating to work health and safety, and (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. (2) In exercising a power or performing a function, the health and safety representative may— (a) inspect the workplace or any part of the workplace at which a worker in the work group works— (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and (b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and (c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and— (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and— (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (e) request the establishment of a health and safety committee, and (f) receive information concerning the work health and safety of workers in the work group, and (g) whenever necessary, request the assistance of any person. Note— A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices. (3) Despite subsection (2) (f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that— (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. (4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity. 70 General obligations of person conducting business or undertaking (1) The person conducting a business or undertaking must— (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking, and (b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group, and (c) allow any health and safety representative for the work group to have access to information that the person has relating to— (i) hazards (including associated risks) at the workplace affecting workers in the work group, and (ii) the health and safety of the workers in the work group, and (d) with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and— (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (e) with the consent of one or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and— (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act, and (g) allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided, and (h) permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works, and (i) provide any other assistance to the health and safety representative for the work group that may be required by the regulations. Maximum penalty— (a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units. (2) The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act. Maximum penalty— (a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units. (3) Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period." Issue Resolution under the WHS Act 1. Division 5 of Part 5 of the WHS Act deals with "Issue resolution". It contains the following sections: "80 Parties to an issue (1) In this Division, parties, in relation to an issue, means the following— (a) the person conducting the business or undertaking or the person's representative, (b) if the issue involves more than one business or undertaking, the person conducting each business or undertaking or the person's representative, (c) if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative, (d) if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative. (2) A person conducting a business or undertaking must ensure that the person's representative (if any) for the purposes of this Division— (a) is not a health and safety representative, and (b) has an appropriate level of seniority, and is sufficiently competent, to act as the person's representative. 81 Resolution of health and safety issues (1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. (2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations. (3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue. 82 Referral of issue to regulator for resolution by inspector (1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue. (2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue. (3) A request to the regulator under this section does not prevent— (a) a worker from exercising the right under Division 6 of this Part to cease work, or (b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work. (4) On attending a workplace under this section, an inspector may exercise any of the inspector's compliance powers under this Act in relation to the workplace." Right to Cease or Direct Cessation of Unsafe Work under the WHS Act 1. Division 6 of Part 5 of the WHS Act deals with the "Right to cease or direct cessation of unsafe work". It contains the following relevant sections: "83 Definition of 'cease work under this Division' In this Division, cease work under this Division means— (a) to cease, or refuse, to carry out work under section 84, or (b) to cease work on a direction under section 85. 84 Right of worker to cease unsafe work A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. 85 Health and safety representative may direct that unsafe work cease (1) A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. (2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after— (a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work, and (b) attempting to resolve the matter as an issue under Division 5 of this Part. (3) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under Division 5 of this Part if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. (4) The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3). (5) The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section. (6) A health and safety representative cannot give a direction under this section unless the representative has— (a) completed initial training prescribed by the regulations referred to in section 72 (1) (b), or (b) previously completed that training when acting as a health and safety representative for another work group, or (c) completed training equivalent to that training under a corresponding WHS law. 86 Worker to notify if ceases work A worker who ceases work under this Division must— (a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative, and (b) remain available to carry out suitable alternative work. 87 Alternative work If a worker ceases work under this Division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties. 88 Continuity of engagement of worker If a worker ceases work under this Division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work— (a) at the same or another workplace, and (b) that was safe and appropriate for the worker to carry out. 89 Request to regulator to appoint inspector to assist The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work. Note— The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work." Provisional Improvement Notices under the WHS Act 1. Division 7 of Part 5 of the WHS Act deals with provisional improvement notices. Section 90 of the WHS Act provides as follows: "90 Provisional improvement notices (1) This section applies if a health and safety representative reasonably believes that a person— (a) is contravening a provision of this Act, or (b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated. (2) The health and safety representative may issue a provisional improvement notice requiring the person to— (a) remedy the contravention, or (b) prevent a likely contravention from occurring, or (c) remedy the things or operations causing the contravention or likely contravention. (3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person. (4) A health and safety representative cannot issue a provisional improvement notice unless the representative has— (a) completed initial training prescribed by the regulations referred to in section 72 (1) (b), or (b) previously completed that training when acting as a health and safety representative for another work group, or (c) completed training equivalent to that training under a corresponding WHS law. (5) A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter." 1. Section 92 of the WHS Act provides as follows: "92 Contents of provisional improvement notice A provisional improvement notice must state— (a) that the health and safety representative believes the person— (i) is contravening a provision of this Act, or (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated, and (b) the provision the representative believes is being, or has been, contravened, and (c) briefly, how the provision is being, or has been contravened, and (d) the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention." 1. Section 93(1) of the WHS Act provides that a provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters of activities causing the contravention or likely contravention to which the notice relates. 2. Section 99(2) of the WHS Act provides that a person issued with a provisional improvement notice must comply with the notice, within the time specified in the notice. The Lead Up to 2 February 2020 1. SafeWork tendered a Statement of Agreed Facts signed by the solicitors for the parties (PX 1, Tab 5). That Statement sets out, day by day, documents created and events which occurred. In final submissions the parties also referred to a Prosecutor's Chronology (MFI 37) and a Defendant's Chronology (MFI 36). 2. I propose to follow the structure of the Statement of Agreed Facts, and those two chronologies, and deal with the events which occurred day by day. 24 January 2020 1. Ms Francene Camilleri was the Operations Manager Fleet Presentation for Qantas. Ms Camilleri sent an email (PX 1, Tab 12) on 24 January 2020 addressed "Hi All". The email sent a link to access "the most up to date information provided by Qantas Aviation Medicine and Occupational Health Services regarding the Corona Virus." 2. The email also stated: "Please be advised for Fleet Presentation staff, it is business as usual and no additional PPE is required. Since the P2 mask is available now for dust/smoke please feel free to use this if you feel you need to. Please ask the GSOT on shift if you require a mask." 1. The acronym "GSOT" was used by everyone at QGS to refer to a person who held the position of a Ground Services Operational Team Manager. 25 January 2020 1. Safety toolbox talks were held with cleaning crews before they boarded an aircraft to carry out their cleaning duties. These talks were conducted by the GSOT in charge of that group. 2. At 7.55am on 25 January 2020 Mr Jesse Findlay, a GSOT, gave a safety toolbox talk (PX 1, Tab 54, p 1) on board the aircraft designated QF128, arriving from Hong Kong. He recorded the topics discussed as follows: "• Corona virus & wearing PPE and using hand sanitiser / Gloves • Offered out update from medical • Fielded Questions from the Team, Edie had some questions but was supportive • Checked Welfare" 1. At 11.00am on 25 January 2020 Mr Findlay conducted a similar toolbox talk on the bay for QF130, arriving from Shanghai (PX 1, Tab 54, p 2). 2. At 11.43am on 25 January 2020 Ms Camilleri sent an email (DX 5) to a group email address for all GSOTs. She forwarded information and an attachment, which came from Dr Russell Brown of Qantas Group Medical. Dr Brown said that "operation continues as normal with heightened awareness". He summarised some of the information in the update, including the fact that there were now 846 confirmed cases of disease, it had spread to 9 countries, the spread within China was increasing and the World Health Organisation (WHO) continued to recommend against any trade or travel restrictions. 3. Dr Brown recorded that there had been a temporary refusal to meet a China Southern aircraft. Two possible infectious cases were reported aboard QF2 from Singapore to Sydney. Dr Brown said that "this is shifting towards a SARS type picture, although less severe at this stage". 4. The attached update from Dr Brown referred, inter alia, to the risk of Coronavirus spreading to ground staff as "currently extremely unlikely". The update recommended the routine use of gloves, regular and careful hand washing and routine cleaning products. Masks were not currently recommended. Dr Brown described Coronavirus as "a rapidly evolving situation". He referred to the risk for Qantas staff and passengers as "low". 5. At 3.20pm on 25 January 2020 Mr Michael Allworth, another GSOT, conducted a safety toolbox talk at Bay 31 (PX1, Tab 54, p 3). He discussed Coronavirus and the wearing of PPE and using hand sanitiser. 26 January 2020 1. At 7.55am on 26 January 2020 Mr Findlay conducted a safety toolbox talk for the crew servicing QF128 (PX 1, Tab 54, p 4). He discussed wearing PPE and using hand sanitiser and gloves. He offered out updated medical sheets. 2. At 10.20am on 26 January 2020 Mr Findlay conducted a safety toolbox talk for the crew servicing QF130 (PX 1, Tab 54, p 5). Mr Findlay recorded discussing wearing PPE and using hand sanitiser and gloves. He offered out updated medical sheets. He also recorded: "Fielded questions from the Team, Some concern from Half the team but re iterated points around low risk and washing hands, They worked without issue." 1. At 11.37am on 26 January 2020 Ms Camilleri sent an email to all of the GSOTs (DX 6). The email attached the day's health update from Dr Brown of Qantas Group Medical. Dr Brown said that operations continued as normal "with heightened awareness". He referred to "growing impacts on our network". In summarising the Qantas health update, Dr Brown said: "At this stage it still appears to only spread with very close contact, and is severe mainly in high risk elderly people". 2. At 5.30pm on 26 January 2020 Mr Allworth conducted a safety toolbox talk on Bay 24 inside a fleet van (PX 1, Tab 54, p 6). He recorded discussing Coronavirus and wearing a mask, gloves and using hand sanitiser. 27 January 2020 1. At 9.00am on 27 January 2020 Mr Reece Smith and Mr Richard Keech conducted a safety toolbox talk concerning Coronavirus inside the Bay 24 crew coaster (PX 1, Tab 54, p 7). The talk was given to "Danny and his crew". They were allocated to flight QF118 from China. Mr Smith handed out the latest information from Qantas Group Medical. He gave the crew a box of P2 masks and reminded them about wearing gloves and washing their hands after the flight. 2. Mr Smith recorded the following in his Communication Record (PX 1, Tab 54, p 7): "There were still some refusal, mostly from Vicky Dean. I told the crew they have two options available to them, option one is to follow the guidelines that I have just provided and carry on with their allocated task. Option two was to refuse the lawful and reasonable directive to clean this flight, however if they choose to take option two they will be subject to disciplinary action as this will be considered unprotected industrial action and refusal of a lawful and reasonable directive." 1. Mr Smith said that he told the crew he would join them for the entire cleaning of the aircraft but he would not wear a mask. 2. On 27 January 2020 some workers raised concerns with Mr Seremetidis about cleaning an aircraft coming from China (Tcpt 197/49-198/43). Mr Seremetidis spoke to Mr Smith about the workers' concerns (Tcpt 198/45-199/3). 3. Mr Seremetidis recorded these matters in an email sent at 2.12pm to Mr Smith (PX 1, Tab 15). Copied into the email were Mr Lau from the Transport Workers Union (TWU) and Ms Sheets-Chavolla, who was the leading hand on the crew of which Mr Seremetidis was a member. Mr Seremetidis set out his version of what he said to Mr Smith: "As discussed earlier today on the phone a few workers refused to go on planes that had arrived from China based on safety concerns in relation to the corona virus. Those workers have the right to cease unsafe work under the WHS act, section 84 if they believe that there's a risk to health and safety associated with the allocated work. You advised me that the business position is that at this point the risk is low and therefore work continues as usual. You also advised that anyone refusing to work on planes that have arrived from China, the business would see that as unprotected industrial action and that workers would be subjected to disciplinary action. I also advised you that it's prohibited under the WHS act to coerce a person not to exercise a power or not to perform a function under the act. Last, I advised that I'd be escalating this to Safework NSW tomorrow. Can you confirm the above and also put anything that I may have forgotten?" 1. At 1.31pm Mr Smith sent an email to all GSOTs, and to other persons including Brad Ezekiel, Nicola Davidson and Nicole Watts (PX 1, Tab 14). The subject of the email was "TWU Response to Corona Virus Outbreak". In part the email referred to the conversation earlier that day between Mr Smith and Mr Seremetidis. Mr Smith said: "I believe the TWU have been using the recent news stories regarding the Corona Virus Outbreak to spread fear amongst Qantas employees. Firstly attached are photos from a FaceBook 'Airport Workers' group that was posted on Friday by TWU Rep Troy Rodgers. I'm sure you will agree the language used in this post is quite inflammatory, especially the references to the Governments response. Secondly whilst I was on board the inbound QF117 (EBM) from China I received a phone call from Theo Seremetidis. He was calling to notify me that some employees had expressed concerns about the Virus. I said to Theo I understand and that's why both myself and the Supervisor (Richard) have been present at all flight arrivals from China & Hong Kong today, providing employees with face masks and the latest medical information from Qantas and the World Health Organisation. I also added that I had just had a meeting with Danny's crew. Theo then started to quote a section from the WHS Act and said that Management cannot force people to work on these inbound flights from China. I told Theo that Qantas has made its stance on this matter very clear and it was not up for debate. I told him I was happy to meet with and speak to anyone that had specific concerns. Theo told me that I could not threaten staff with disciplinary action. I told Theo that I was sticking to the fact and being transparent about the choice employees have available to them. Theo said that he would be raising this matter with Safe Work which I said he is welcome to do so. Just to be clear Theo was not refusing and duties himself. He was acting as a spokesperson for concerned employees. Please note, before this phone call took place, Theo/Desiree's crew were allocated the inbound Vietnam Airlines flight. Desiree called me to request masks. I explained to her they were not a requirement, particularly for flights arriving from Vietnam, however I was more than happy to meet her at the aircraft to give her crew masks which I subsequently did. Things have since settled down for now. The GSOTM team will keep you informed of any development on this matter…" 1. At 2.40pm on 27 January 2020 Mr Findlay conducted a safety toolbox talk for the crew on the bay for QF108, arriving from Beijing (PX 1, Tab 54, p 8). He discussed Coronavirus, wearing PPE and using hand sanitiser and gloves. 2. At 3.15pm on 27 January 2020 Ms Camilleri sent an email to all of the GSOTs, Ms Davidson and Mr Ezekiel (DX 7). Ms Camilleri forwarded the day's health update from Dr Brown of Qantas Group Medical. Dr Brown's summary included the statement that "all cases outside of mainland China have been imported by travellers". He noted deaths in people over 50 years of age with underlying heart or lung conditions. Dr Brown summarised the spread of the disease, including an increased number of confirmed cases, and the spread to more countries. Dr Brown noted that Australia was planning for evacuation of people and staff from Wuhan in China. Dr Brown noted that increasingly staff were requesting to wear masks. He noted that masks were not recommended for ground staff meeting aircraft from mainland China and said that there was an "extremely low risk of an infected person contaminating a surface on an aircraft". Dr Brown concluded the email by saying that mainland China numbers in the previous five days showed that "we are in a critical phase to see how things progress". 3. At 3.19pm on 27 January 2020 Mr Smith sent an email to all of the GSOTs and to, inter alia, Mr Ezekiel, Ms Davidson and Ms Watts (PX 1, Tab 16). The email from Mr Smith forwarded the email from Mr Seremetidis sent at 2.12pm on 27 January 2020 and referred to above. Mr Smith added the following comment: "FYI – A pretty good summary however I will not be responding as requested…" 1. At 5.15pm on 27 January 2020 an email (PX 1, Tab 17) was sent by Ms Nicola Davidson, who was "Head of Sydney Airport, Freight, Catering and Australian Airports for Qantas Airways Limited". The email was sent to all of the GSOTs, and to, inter alia, Mr Ezekiel and Ms Watts. I infer that the email from Ms Davidson was designed to address the matters raised by Mr Seremetidis in his email. Ms Davidson said: "We need to discuss this urgently with Theo and any other HSRs etc. They need to discuss with the business prior to stopping work, especially since we have advice from medical. Can I suggest that we get Theo and others to have a conference call with the medical team tomorrow, if this continues. Let me know when Theo is on and I'll organise to get one of the medical team to speak to the fleet team and any others." 1. At 5.34pm on 27 January 2020 Mr Findlay sent an email to Ms Davidson setting out the roster for Mr Seremetidis, who was on morning shifts for the remainder of the week (PX 1, Tab 18). 28 January 2020 1. At 6.57am on 28 January 2020 Mr Seremetidis sent an email to Ms Camilleri (PX 1, Tab 21, p 3). The email was copied to, inter alia, Mr Smith and Mr Lau. Mr Seremetidis said: "There's a lot of workers that are worried about the corona virus on flights that come in from China. The news are reporting that the virus can be transmitted from person to person in the incubation period before someone feels unwell. Also, no one knows how many infected people have travelled to other Chinese cities before the travel restrictions were put in place. Qantas flies to Beijing Shanghai and Hong Kong. A lot of workers are afraid to work on these flights due to the risk of infection and are ceasing unsafe work of these particular flights. Can you show me how the PCBU is managing this risk?" 1. At 9.20am on 28 January 2020 an email was sent to all Qantas employees headed "In The News" (PX 2, Tab 57). In part, it said: "Coronavirus update We're continuing to closely monitor the situation, and the risk in Qantas Group ports is currently considered low. The World Health Organization continues to recommend against any travel or trade restrictions. Further information on the virus can be found on The Terminal." 1. The reference to "The Terminal" is a reference to the Qantas Intranet, which could be accessed by all employees from a mobile device or from computers made available to employees in the meal rooms. 2. At 10.40am on 28 January 2020 Ms Camilleri replied by email to the email sent by Mr Seremetidis at 6.57am that morning (PX 1, Tab 21, pp 2-3). Ms Camilleri said that Qantas continued to work within the guidelines provided by Qantas Group Medical. Up-to-date information was provided by Qantas Group Medical to all employees who attend to flights from China. P2 masks and gloves were available to all staff. Ms Camilleri referred to the health information previously circulated by email. 3. The email concluded by Ms Camilleri saying: "We will continue to take the advice of Qantas Medical, other sources of information, such as the media do not necessarily provide factual information. Staff safety is our priority and we will continue to provide them the most up to date information. To provide you (HSRs) with an opportunity to ask questions, a conference call with Qantas Medical has been set up for 2.00pm today." 1. Ms Davidson organised a Microsoft Teams Meeting at 2.00pm with Dr Russell Brown in relation to Coronavirus (PX 1, Tab 19). Mr Seremetidis was one of the parties invited to participate in the Teams Meeting. 2. At 2.13pm on 28 January 2020 Ms Camilleri sent an email to the GSOTs, Ms Davidson and Mr Ezekiel (DX 8). She forwarded the Coronavirus daily update from Dr Russell Brown. The update reported an increasing number of deaths due to Coronavirus and the spread to more countries. The update noted that the WHO assessment of the general event remained "very high in China, high at the regional level and high at the global level". The risk to Qantas staff was said to be "considered low". The update noted that in China there had been reports of the spread of Coronavirus from people prior to having significant symptoms. It was said that outside China, the spread from someone who is asymptomatic was "extremely unlikely". The update noted that mask supplies were running out around the world, due to overuse. The update referred to an Australian Government alert being "unchanged". It recommended people "exercise normal safety precautions". 3. At 2.39pm on 28 January 2020 an email was sent by Mr Ben Pryor, who held the position of Operations Portfolio Manager Sydney Airport for Qantas (PX 1, Tab 20, pp 2-3). The email contained his notes of the meeting with Dr Russell Brown in relation to Coronavirus. In dot-point form Mr Pryor set out his understanding of what Dr Brown said. His notes included the following: "• Fear in populations is largely irrational. • Coronavirus is difficult to spread. • Reassurance point of view staff on aircraft not at great risk at all. • Flu kills 400, 500K a year. So we need perspective. • Masks: There is no evidence masks change the outcome. Exception is health care professionals or cabin staff dealing with someone that is sick. • Normal cleaning or walking past an infected person extremely unlikely". 1. At 3.05pm on 28 January 2020 Mr Seremetidis sent an email (PX 1, Tab 21, pp 1-2) to Ms Camilleri. It was copied to, inter alia, all of the GSOTs, Mr Smith and Mr Ezekiel. Mr Seremetidis said: "I just finished the conference call with Qantas medical. The doctor mentioned that there has been a risk Assessment done. Also there are a few more questions I have that I didn't have enough air time to ask all these questions 1) I'd like to see the risk assessment 2) when was this risk assessment done and was it done in consultation with HSRs 3) the doctor talked about the status on the risk of the virus to workers. Has this been communicated and consulted with workers? If yes How? When? If not, why not? 4) You state that information was provided to workers via links - the PCBU has an obligation under Section 47 – 49 to consult with all affected workers about any workplace hazards. Has the PCBU properly consulted with all affected workers?, and if not, when do you plan on doing this, and how? 5) How is work performed, including the physical, mental and emotional demands of the tasks and activities? Has the PCBU taken in to consideration that workers may find this hazard a psychological hazard, and not only a genuine biological hazard? What has the PCBU implemented to manage this?" 1. At 3.30pm on 28 January 2020 Ms Davidson sent an email to Qantas Personnel, but did not include any GSOTs or Mr Seremetidis (PX 1, Tab 20, pp 1-2). Ms Davidson said: "Sydney had a call with Dr Russell Brown today after some noise bubbling about coronavirus. All the leadership team as well as HSRs and other influencers attended the call. In very simple terms – summary as follows: Detailed info below 1. Very low to zero risk of getting the virus. Not airborne. 2. Masks and gloves not required. Best defence is usual hygiene rules – washing hands properly for 20 seconds 3. No change to BAU processes and procedures 4. Updates daily by medical team on the terminal. It was helpful and if you have any issues, I am sure that Russell would support a call." 1. The abbreviation "BAU" stands for "business as usual". 2. At 5.30pm on 28 January 2020 Ms Camilleri sent an email to Mr Seremetidis, responding to his email sent at 3.05pm (PX 1, Tab 21, p 1). The email was copied to all of the GSOTs and, inter alia, Mr Smith and Mr Ezekiel. 3. Ms Camilleri said: "We are taking a national (and international) approach to how we communicate the information we receive as an organisation about the Coronavirus. The Qantas medical team is continually monitoring the situation, including providing daily updates. The risk assessment has been completed by medical experts and as such all business units have been taken into consideration as part of the review including overseas ports, Cabin Crew, Fleet Presentation and Customer Service etc. It is not a port by port or singular business unit approach. Information is provided to you on a daily basis, via the Terminal. This information is updated daily for all workers at Qantas and in addition GSOTs are out and about with firsthand information, ready to provide to all workers including those attending aircraft that arrive from China. If any workers have concerns including psychological, emotional or physical, as always, they must speak to their GSOT or Supervisor directly for assistance. Confirming the conversation with Dr Brown, there is no change to business as usual procedures and processes and that extra vigilance is required with normal handwashing and personal hygiene procedures." 29 January 2020 1. At 6.35am on 29 January 2020 Mr Findlay conducted a safety toolbox talk on the bay for QF128, a flight from Hong Kong (PX 1, Tab 54, p 9). He discussed Coronavirus, wearing PPE and using hand sanitiser and gloves. He recorded that the team had "minimal concerns". 2. At 7.01am on 29 January 2020 Mr Seremetidis sent an email to Mr Lau of the Transport Workers Union (TWU) and Ms Marsic, who was the TWU training manager (PX 3, Tab 22, p 1). He forwarded a copy of the email chain between himself and Ms Camilleri, which has been summarised above. Mr Seremetidis said: "Good morning. This is the response I received from the PCBU. I feel like I'm being brushed off and I'm not given the information I request. I don't feel consultation has occurred with HSRs or workers. I'm Not given the risk assessments and it was all done without HSRs" 1. At 7.13am on 29 January 2020 Mr Seremetidis sent an email to Ms Camilleri, which was copied to the GSOTs, and inter alia, Mr Smith, Mr Ezekiel and Mr Lau (PX 1, Tab 21, p 1). Mr Seremetidis said: "Just reminding you that the information I've requested is requested as an HSR and the PCBU has an obligation to provide it. Also the PCBU has an obligation to consult as per the act with workers and HSRs. I am now requesting the info form the previous email by COB Thursday 30/1/2020." 1. At 9.24am on 29 January 2020 Mr Sam Moran sent an email to Inspector Colleen Harris of SafeWork (PX 1, Tab 24, pp 1-2). Mr Moran held the position of Manager People and Operational Safety – Australian Airports for Qantas. He copied and pasted material into that email to inform Inspector Harris what QGS was doing and what information had been provided to QGS workers. On page 2 of the email he stated, as part of a summary of the Teams Meeting with Dr Brown on 28 January 2020: "• HSR stated he gets lots of questions and management are not communicating: • Qantas Head of Sydney Airport stated as a response that the GSOTs have been communicating directly with staff. • Monitor info on The Terminal website. • Risk is continually reassessed by Qantas management, medical and leadership team." 1. I infer that the HSR referred to in that part of the email was Mr Seremetidis. He did raise questions at the meeting with Dr Brown. 2. At 9.50am on 29 January 2020 Dr Brown sent an email with an update about "significant developments overnight" (DX 14). The update referred to an increasing number of cases in an increasing number of countries. 3. At 10.20am on 29 January 2020 Mr Findlay conducted a safety toolbox talk on Bay 2 with the crew assigned to clean QF130 from Shanghai (PX 1, Tab 54, p 10). Mr Findlay recorded that he had a private conversation with Catherine Ofria. He recorded: "I spoke to Catherine separately, I listened to her concerns, Explained all the information and what may occur if she refuses to complete the tasks. She has agreed to go onboard but was not happy. Email of discussion sent to Francene." 1. While the Communication Record (PX 1, Tab 54, p 10) notes Mr Seremetidis as being in attendance at the meeting, Mr Findlay later realised that Mr Seremetidis was not there (PX 1, Tab 53). 2. At 1.28pm on 29 January 2020 Mr Findlay sent an email to Ms Camilleri regarding the flight QF130 inbound from Beijing (PX 1, Tab 25). Mr Findlay gave the following "recap": "• Arrived on bay prior to crew arriving with Masks ready to go. • Desiree's crew arrived on bay. I met them at the van and began distributing masks, There was some concern around the virus, I relayed information from the most recent Qantas medical update. • Desiree asked me to speak with Catherine Separately. • After speaking with about 7 staff, all but Catherine Ofria and I believe it was Debra Fotiou went to the Aircraft • Catherine Asked me what would happen if she refused to go onboard, I again highlighted the message regarding the risk, the supply of the PPE and Washing Hands ect. I explained that if an employee chooses to not go on the assigned task then the business may consider that as unprotected industrial action and they may face a disciplinary action. • Catherine said words to the effect of 'Well we don't have a choice' • I Explained she had a choice, I had given her all the information and it was up to her to make a decision. • She said she would go on but wasn't happy about it. Debra and myself walked to the A/C and Catherine stayed on board the van to make a call • When on the Aircraft I saw Theo Seremetidis and he asked if Catherine was on board, I said yes and where he could find her. • I assisted Desiree by driving 6 crew members who did not want to extend back to the meal room in the Van, Catherine was one of the team members and she said words to the effect of 'Jess I don't mean any disrespect to you or any other GSOT but ill tell you now I wont be getting on that plane again, I have a Sick boy to worry about and I wont put him at risk' I had already explained everything to Catherine so rather than respond back with more info I nodded. I believe Catherine Spoke to Theo. S who may have said to her let them know you wont go on again maybe to 'test the waters' We may be at the tipping point of staff beginning to refuse to go onboard as the news reports the Virus in a more severe light. Should we have a standard and uniform way we will deal with any team member who refuses their duties? Also Desiree asked if she does get sick and it is Coronavirus will this be covered under workers Compensation ? Please let me know if you need anymore information ?" 1. At 4.40pm on 29 January 2020 Ms Camilleri sent an email to Mr Seremetidis (PX 1, Tab 28, p 2). She said: "I'd like to take this opportunity to discuss your email. Please me know if you'd like to bring a support person and if they need tasking out." 1. The email from Ms Camilleri proposed a meeting for 12 noon on 30 January 2020. 2. At 6.11pm on 29 January 2020 Mr Seremetidis sent an email to Ms Camilleri in response to her invitation to attend a meeting (PX 1, Tab 28, p 2). Mr Seremetidis said: "Unfortunately Ho Lau isn't available tomorrow. Can we meet after the weekend ?? The questions 1 and 2 are pretty self explanatory and should be fairly easy to get. 1) I'd like to see the risk assessment that has been done 2) when was this risk assessment done and was it done in consultation with HSRs? I'm still expecting this information by tomorrow 5pm. The rest of the information requested that needs clarification can be discussed in our meeting next week." 30 January 2020 1. At 12.16pm on 30 January 2020 Mr Findlay sent an email to Ms Camilleri headed "Post QF130 Theo Conversation" (PX 1, Tab 29). In his email Mr Findlay stated as follows: "Post discussion with staff from crew scheduled to service QF130, 3 x Crew did not attend the flight. King Odor, Jamile Abdou, Amanda Greenhill. The below discussion took place between myself and Theo Seremetidis. • Theo Called me to ask where I was, I explained I was on the A/C at bay 25 and he said he would come to the plane. • Theo arrived and we discussed the earlier incident with the 3 x staff refusing to clean the QF130. • Theo explained that he had spoken to the staff involved and called the safe work regulator contact : John Whatman [mobile number] • He said that it was breech under that act to threaten staff with disciplinary action for refusing to complete a task that they feel they are Unsafe. I explained the information currently says it is low risk and we can continue working as per direction. • I explained how I present the information to the staff, answered questions, reiterated the business position, offered PPE and explained what May occur if they refuse task and how the business May view their action. • I explained to Theo that I did not threaten staff, but I provided staff with all the information so that they could make their own decision. This information included what may happen as a result of refusing to complete a task. • Theo said the regulator would like to speak to me and that if the threats of disciplinary action continue, they would escalate. • Theo mentioned that other carriers have cancelled flights, BA and Air Canada, I explained that for the moment we are still operating into mainland china. • He brought up that he had asked for the risk assessment, I explained that that was a separate matter to this request and that he will be updated shortly. • I thanked him for the information and said I would refer what he has told me and the contact details he provided to the business However at this stage what I have explained is still the business position. • The conversation tone was courteous on both sides. Catherine Ofria was a witness to the conversation." 1. Ms Watts arranged a conference call for 1.30pm with Jamile Abdou and King Odor, who were two of three employees who refused to clean the aircraft arriving from China. By text message, Jamile Abdou and King Odor informed Ms Watts that they would not be attending the meeting, as they had spoken to Mr Seremetidis who advised them not to take part in the conference call (PX 1, Tab 31). 2. At 1.09pm on 30 January 2020 Ms Camilleri sent an email to Mr Moran, copied to all of the GSOTs, and, inter alia, Ms Davidson, Ms Watts and Mr Ezekiel. The importance of the email was said to be "high" (PX 1, Tab 30). Ms Camilleri said: "Seeking your assistance please, today we had 3 Fleet Presentation employees refuse to work on the inbound QF130 from Shanghai. We are currently managing these employees. My concern is with Theo Seremetidis (QGS SIT HSR), who is currently engaging in phone calls directly with Safework – details in email below. I know you have been on the front foot with Safework regarding this matter, however I have asked my team to not engage in any contact with Safework directly and to escalate to me. Has there been any further update from Safework from yesterday, it might be helpful to reach out again regarding the information below. Brett – I know Theo is trying to do the right thing by his workers, however as mentioned, I strongly believe I will be issued a PIN tomorrow regarding the attached email. It might be a good time to address him and the approach he is taking on this matter. Please let me know if you need any more information." 1. The reference to a "PIN" in the second last paragraph is a reference to a provisional improvement notice which a HSR can issue under s 90 of the WHS Act. As previously recited, a business issued with a PIN must comply with the Notice within the time specified in the Notice: s 99(2) of the WHS Act. 2. At 4.52pm on 30 January 2020 Ms Camilleri replied by email to Mr Seremetidis (PX 1, Tab 28, p 1), in relation to his email sent at 6.11pm on 29 January 2020. 3. Ms Camilleri said: "The risk assessment that Dr Russell Brown spoke about on the phone hook-up is not a risk assessment as you would know it. It is an assessment being conducted by Qantas Medical Services and Crisis Management Team. This assessment has and is being undertaken in conjunction with the information provided by the Australian Government, foreign Governments and the World Health Organisation. It's a dynamic assessment that is being updated daily as I know it. It's being managed as a Crisis by the Group's Crisis Management Framework in accordance with Qantas procedures. Any questions, concerns or suggestions of HSRs can be raised via management for consideration and the outcome of the Crisis meetings is being communicated via the management teams. It's impossible to have every HSR in the Crisis Management meetings and it would be impossible to act swiftly and effectively if we did." 1. At 4.54pm on 30 January 2020 Ms Camilleri sent an email to all of the GSOTs and Mr Ezekiel regarding an update from Dr Brown (DX 9). In short, the update referred to an increased number of cases in an increased number of countries. It noted that the WHO was still advising against the application of any restrictions to international air traffic. 2. At 7.02pm on 30 January 2020 Mr Moran sent an email to Ms Camilleri (PX 1, Tab 48, p 2). The subject was "Post QF130 Theo Conversation". Mr Moran said: "I spoke with Robert MayeII, Manager Metro Operations, Safework NSW, who is the manager of the SafeWork Inspectors assigned to Qantas issues. Robert and three of his Inspectors (Kerry, Colleen and Mara) received my email yesterday advising them, proactively, about the communication, considerations and precautions undertaken by Qantas relative to the coronavirus situation. Robert acknowledged this communication during our phone conversation, and noted that it mirrored the advice published by SafeWork NSW. Robert spoke with the mentioned Inspector, John Whatman, who advised that he did not require Qantas to call him and had not provided any advice or direction to an HSR regarding the stopping of fleet presentation work activities. It was confirmed that the Regulator will not issue such advice to HSRs but would attend the site and act in a mediatory role, if required. It was a positive phone call and SafeWork had no immediate concerns." 1. At 8.43pm on 30 January 2020 a fact sheet for ground workers was sent by email (PX 2, Tab 59). It stated that the health risk to employees "remains low". The threat of infection to ground workers was "very low". The fact sheet said that normal PPE was sufficient for all airport ground workers, including those cleaning aircraft originating from mainland China. It said that good hygiene was the most effective form of protection. 2. On 30 January 2020 a letter was published in the New England Journal of Medicine entitled "Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany" (PX 7). This document was not seen by Mr Seremetidis until he read it on 1 February 2020. The contents of the New England Journal of Medicine document will be discussed below in relation to events of 1 February 2020. 31 January 2020 1. At 6.45am on 31 January 2020 Ms Watts and Mr Allworth held a meeting with the three workers who had refused to clean the planes arriving from China. Mr Seremetidis attended this meeting as a support person for the three workers. 2. Each worker was handed a letter from Ms Watts (PX 1, Tab 36). The text of each letter was: "Direction to follow reasonable and lawful directions I understand on 30 January 2020, that you refused to board an aircraft and perform your duties in relation to Qantas Flight QF130 from Beijing. You advised that this was due to your concerns about the risk of contracting Coronavirus. You were advised at the time that the risk of that occurring was negligible and that there was PPE available. I again confirm that the risk of aircraft workers contracting Coronavirus as a result of working on aircraft is negligible. This position has been confirmed verbally by a representative from Qantas Medical this morning. We have also provided you with written advice to this effect. In these circumstances, and with the information available to you, you cannot reasonably be concerned that working on aircraft originating from China would expose you to a serious risk to your health or safety or that there is a risk of immediate or imminent exposure to Coronavirus. Direction Given the above, the Company is formally directing you to perform your duties as required including performing your duties on aircraft originating from ports in China. The Company's position is that the direction outlined above is reasonable and lawful, and you are required to comply with it. It is important that you are aware that should you fail to comply with this direction, this may result in disciplinary action being taken against you, up to and including termination of your employment. Employee Assistance Program (EAP) [Paragraph omitted] Thank you for your time this morning." 1. At 9.11am on 31 January 2020 the email "In The News" newsletter was circulated (PX 2, Tab 60). Under the heading "Coronavirus" the email referred to the WHO declaring the Coronavirus outbreak a public health emergency of international concern. The health risk to Qantas Group employees was said to remain "low". It was said that Qantas Group Medical was completing daily risk assessments. 2. At 2.00pm on 31 January 2020 Mr Seremetidis attended another meeting with Qantas Group Medical and Qantas Management (PX 1, Tab 5, par 33). 3. At 5.48pm on 31 January 2020 Ms Davidson sent an email to update the recipients on the management of the Coronavirus issue (PX 2, Tab 61). She said: "I want to firstly reassure you that safety is always our first priority and we would not continue operations if it was deemed unsafe for our people or customers". The advice in the email was that P2 masks were available for anyone dealing directly with someone suffering symptoms, but that the routine wearing of masks made "little to no difference". The email advised that regular hand washing and avoiding touching the mouth, nose and eyes with unwashed hands was the most effective form of protection. 4. At 7.34pm on 31 January 2020 Mr Seremetidis was sent an Acknowledgment Notice via the staff intranet, advising him that there were three documents he had to read (PX 1, Tab 33, p 1). One of those documents was entitled "Coronavirus - factsheet for ground workers" (PX 1, Tab 33, pp 2-3). Under the heading "How is the virus transmitted?" the factsheet said the following: "How is the virus transmitted? • There is evidence the virus can be transmitted through close human-to-human transmission e.g. coughing and sneezing. • Transmission of the virus through normal aircraft cleaning procedures is extremely unlikely. • Transmission of the virus by walking past/standing near/talking to an infected person is extremely unlikely. • Transmission of the virus through handling of property (e.g. bags, passports) that has been in contact with infected persons is extremely unlikely. • The virus does not appear to last very long on surfaces. The risk of this virus being present on imported packages or products is negligible." 1. The document said that the threat of infection outside China was very low and that the risk of contracting the virus through normal duties was "extremely low". The document emphasised that good hygiene was the most effective form of protection. Masks were not recommended for employees meeting any flights, including those from mainland China. 2. At 7.34pm on 31 January 2020 a document entitled "Friday Flyer – Coronavirus" was sent by email (PX 2, Tab 62). The document spoke of Qantas Group Medical Services "completing daily risk assessments". The health risk to Qantas Group employees remained "low". Regular washing of hands with soap and water or hand sanitiser remained "the single most important infection control measure". Protective gloves were recommended for cleaning an aircraft or tending to a sick traveller. There were no changes to "standard procedures". 1 February 2020 1. At 5.30am on 1 February 2020 Mr Allworth conducted a safety toolbox talk and discussed Coronavirus update and safety (PX 1, Tab 54, p 18). 2. At 7.15am on 1 February 2020 Mr Allworth conducted a safety toolbox talk and discussed Coronavirus update and safety (PX 1, Tab 54, p 19). 3. At 7.30am on 1 February 2020 Mr Allworth conducted a safety toolbox talk and discussed Coronavirus update and safety (PX 1, Tab 54, p 20). 4. At 8.10am on 1 February 2020 Ms Camilleri forwarded an email from Dr Russell Brown of Qantas Group Medical Services giving an update (DX 10). Included in the update were figures to show an increased number of cases and deaths. The virus had then spread to 23 countries. While a passenger had arrived from China with flu-like symptoms, there was no report of transmission aboard. Dr Brown said that Qantas Group Medical along with the "Crisis Management Team" continued to monitor the situation closely. 5. At 9.25am on 1 February 2020 Mr Allworth gave a safety toolbox talk (PX 1, Tab 54, p 21). He discussed Coronavirus update and safety. 6. At 9.50am on 1 February 2020 Ms Camilleri forwarded another email from Dr Brown (DX 11). This corrected a minor error in the previous email from Dr Brown. 7. At 10.00am on 1 February 2020 Mr Allworth conducted a safety toolbox talk and discussed Coronavirus update and safety (PX 1, Tab 54, p 22). 8. At 2.20pm on 1 February 2020 Mr Smith conducted a safety toolbox talk concerning Coronavirus (PX 1, Tab 54, p 23). He discussed highlights from the day's conference call with Qantas Group Medical. 9. At 2.45pm on 1 February 2020 Qantas issued a media release in relation to "update on China services" (PX 2, Tab 122). The document said that Qantas would suspend its two direct services to mainland China (Sydney-Beijing and Sydney-Shanghai) from 9 February until 29 March 2020. There was no change to Qantas services to Hong Kong. 10. At 3.25pm on 1 February 2020 Mr Smith conducted a safety toolbox talk in relation to Coronavirus (PX 1, Tab 54, p 24). This was onboard Flight QF108 (from Beijing). He spoke about the day's conference call with Qantas Group Medical. He handed out a two-page fact sheet and the latest briefing from Qantas Group Medical. 11. At 10.00pm on 1 February 2020 Mr Brett Hardy, Head of Ground Services for QGS, called Ms Watts. He said that Mr Seremetidis was rostered for the starting shift the following day and that Mr Hardy was concerned that he may raise issues about the workers who were due to clean the planes that were coming in from China. Mr Hardy told Ms Watts to be ready in the morning to go to the airport. Evidence of the conversation between Mr Hardy and Ms Watts came from the oral evidence of Inspector Harris, who said that she was told these things by Ms Watts (Tcpt 145/1-8). 12. On 1 February 2020 Ms Seremetidis was off work but was researching Coronavirus. He came across the following three documents: 1. Department of Health document headed "Novel coronavirus (2019-nCoV)" (PX 13). 2. Australian Government Joint Media Release entitled "Updated Travel Advice to Protect Australians from the Novel Coronavirus" (PX 2, Tab 123). 3. The correspondence in the New England Journal of Medicine referred to above (PX 7). 1. The Australian Government Department of Health document entitled "Novel coronavirus (2019-nCoV)" contained the following: "Health authorities have identified coronavirus cases in Australia in January 2020." 1. Under the heading "How is the coronavirus spread?" the document said the following: "The coronavirus is most likely to spread from person-to-person through: • Direct close contact with a person whilst they are infectious; • Close contact with a person with a confirmed infection coughs or sneezes (sic); or • Touching objects or surfaces (such as door knobs or tables) contaminated from a cough or sneeze from a person with a confirmed infection, and then touching your mouth or face. Most infections are only transmitted by people when they have symptoms. These can include fever, a cough, sore throat, tiredness and shortness of breath. There is now some evidence that people could be contagious before showing symptoms. This means anyone who has been in Hubei Province recently or been in close contact with someone who is a confirmed case of coronavirus, must take the following additional precautions, even if they don't feel unwell." 1. It is to be noted that some of the information in this document was different to the Qantas health updates. The key differences were: 1. Transmission could be through touching objects or surfaces. 2. There was some evidence that people could be contagious before showing symptoms. 1. The Australian Government Updated Travel Advice was issued on the letterhead of the Prime Minister, the Minister for Foreign Affairs, the Minister for Home Affairs and the Minister for Health. The joint media release said: "JOINT MEDIA RELEASE Saturday 1 February 2020 UPDATED TRAVEL ADVICE TO PROTECT AUSTRALIANS FROM THE NOVEL CORONAVIRUS The National Security Committee of Cabinet met again today to consider new and urgent information regarding the novel coronavirus situation. Based on updated health advice from the Commonwealth's Chief Medical Officer and the Australian Health Protection Principal Committee and the increased risk posed by the spread of novel coronavirus, we have decided to introduce strict new travel restrictions and new travel advice. Effective immediately, foreign nationals (excluding permanent residents) who are in mainland China from today forward, will not be allowed to enter Australia for 14 days from the time they have left or transited through mainland China. Australian citizens and permanent residents will still be able to enter, as will their immediate family members (spouses, legal guardians or dependants only). This exemption will be extended to airline crews who have been using appropriate personal protective equipment. I want to assure Australians that we are doing everything we can, through these increased actions, to protect Australians and keep them safe from what is an escalating threat. This is a temporary measure, which will be reviewed in 14 days. Any foreign nationals who do arrive in Australia notwithstanding the prohibition, and who choose not to immediately return to their port of origin, will be subject to mandatory quarantine. We will also be requiring Australian citizens, permanent residents and their families who do enter Australia and who have been in mainland China to self-isolate for 14 days from the time they left mainland China. Further, enhanced screening arrangements will be effected at ports of entry. The Government will make 500,000 masks available for airport and port staff and arriving passengers and handheld thermometers will be made available at impacted ports. We will also raise the travel advice to Australians for all of mainland China to Level Four – "Do not travel." We have not taken any of these decisions lightly. Over the past month we have consistently relied on expert advice, including from the Australian Health Protection Principal Committee, based on the advice of the Communicable Diseases Network Australia. Their advice has guided the decision to announce these new measures today. In particular, the changing epidemiology of the coronavirus in China and the uncertainty that remains around its transmission and virulence, mean the utmost precaution is warranted. There is no basis for alarm. It is important to remember the risk to Australians is currently very low. We need to keep it that way. Australia is well-prepared to respond to these challenges. We have been assessed by the World Health Organization as a world leader in preparedness for pandemics. The Australian Government continues to monitor and respond to the coronavirus outbreak as it evolves. We will work in close cooperation with state Government authorities and our international partners to coordinate our response and keep Australians safe." 1. The matters in the travel advice which were additional to the information conveyed to QGS employees by Qantas Group Medical included: 1. New travel restrictions were being enforced. 2. Foreign nationals who were in mainland China would not be allowed to enter Australia for 14 days from the time they had left or transited through mainland China. 3. Australian citizens, permanent residents and their families who did enter Australia and who had been in mainland China would have to self-isolate for 14 days from the time they left mainland China. 4. There would be enhanced screening arrangements at ports of entry. 5. The government was making 500,000 masks available for airport and port staff and arriving passengers. 6. The travel advice for Australians for all of mainland China was raised to Level Four – "Do not travel". 1. The correspondence in the New England Journal of Medicine, which Mr Seremetidis saw on 1 February 2020 was a letter to the editor from 17 medical practitioners from institutions in Germany. The letter referred to Coronavirus causing concern in the medical community and spreading around the world. It referred to a number of cases from China that had been imported into other countries. The epidemiologic picture was changing on a daily basis. The letter reported on a case of Coronavirus infection "acquired outside of Asia in which transmission appears to have occurred during the incubation period in the index patient". 2. The letter said that this particular patient had attended meetings with a Chinese business partner in Munich. That business partner had come to Germany from Shanghai. During her stay she was well with no signs or symptoms of infection but she became ill on her flight back to China and tested positive for Coronavirus. 3. The letter said that three additional employees at the German company tested positive for Coronavirus. The medical practitioners said that "it is notable that the infection appears to have been transmitted during the incubation period of the index patient, in whom the illness was brief and nonspecific". The letter concluded by saying: "The fact that asymptomatic persons are potential sources of 2019-nCoV infection may warrant a reassessment of transmission dynamics of the current outbreak." 2 February 2020 1. Between 6.00am and 6.30am on 2 February 2020 Mr Seremetidis issued his first direction to workers to cease unsafe work, pursuant to s 85 of the WHS Act. On that day two aircraft were due to arrive from China, the first at 10.30am and the second at 2.10pm (PX 1, Tab 5, par 39). 2. When Mr Seremetidis arrived in the meal room to sign on, workers asked Mr Seremetidis about the government's decision to shut the border with China. Mr Seremetidis observed workers to be stressed and anxious about Coronavirus. He informed the workers that for safety reasons they did not have to clean the flights arriving from China and they had the right to cease unsafe work under s 84 of the WHS Act. Mr Seremetidis gave workers a direction to cease unsafe work under s 85 of the WHS Act (Tcpt 310/26 – 312/28). 3. During this period Ms Henderson discussed with Mr Seremetidis her concerns about cleaning flights arriving from China, arising from her fear that she might carry the virus home to her elderly and infirm mother (Tcpt 774/44 – 778/4). Ms Henderson signed a statement in a SafeWork inspector's notebook (PX 14). The statement said: "I may have cleaned the morning plane from China. Not involved in Toolbox Talk conducted at 7.30am on 2.2.20. Theo (HSR) was talking to some workers but he wasn't on soap box. I had one on one as I have 83 year old mother at home. I'm healthy but I was concerned about if I could take it home. Theo advised it's OK to let company know if you are not comfortable. You are within your rights to ask for other task. I told him I was not stopping work but I was concerned about cleaning that flight from China. Business had, to that date, were saying no risk – managers were coming onboard to demonstrate. Gave masks but not necessary they said. Only catch from close contact with other person. No advice about living on surfaces." 1. At 6.43am on 2 February 2020 Mr Seremetidis left the meal room to commence his first task on a Qantas plane. While he was performing that task he received a phone call from Mr Allworth, the GSOT on duty. Mr Seremetidis was asked by Mr Allworth whether he had directed workers to cease unsafe work. Mr Seremetidis recalled that he said: "Yes, based on the increased risk and the last night's announcement from the government closing the border". He recalled Mr Allworth saying that he would escalate it to Ms Camilleri (Tcpt 312/39 – 313/7). 2. At 6.53am on 2 February 2020 Mr Allworth sent a text message to Ms Camilleri, Ms Watts, Ms Davidson, Mr Hardy and Mr Ezekiel (PX 1, Tab 37, p 2). Mr Allworth said: "Morning all, Theo Seremetidis has informed all fleet staff on shift to refuse duties for all flights inbound from China. I'm expecting problems this morning as a result and will now go and speak with Theo. Further updates to follow once I have more information." 1. In a later text message (PX 1, Tab 37, p 2) Mr Allworth said: "I spoke to Theo on the phone at 0707 with Scott Dawson as a witness, I asked Theo if he was directing staff not to service flights from China. Theo said he was telling all staff not to service flights due to the higher risk and the Australian government closing the border. I asked Theo was this based on his opinion or advice from someone else, Theo said it was his opinion. I then told Theo I would get back to him." 1. There was some back-and-forth between the recipients by text. Included in the messages was Ms Camilleri saying: "I think this is enough Nicky" (PX 1, Tab 37, p 3). The prosecutor placed some emphasis upon this statement, but it is so vague and general that it could mean many things. I propose to disregard it. 2. Mr Dawson sent an email later in the day to Ms Camilleri and Mr Allworth entitled "Michael Allworth conversation with Theo Seremetidis" (PX 1, Tab 39). The email said as follows: "Recollection of a conversation had between (MA) Michael Allworth (Fleet GSOT) & (TS) Theo Seremetidis (QGS) on Sunday 2th February, 2020 at approximately 0705. • MA contacted TS on his mobile phone and asked him a question with myself listening to the conversation. • MA asked TS are you directing staff not to service flights from china? • TS replied with words to the effect that he is telling staff not to service flights due to the high risk & that the Australian Government have closed the borders. • MA asked Theo whether this direction was based on opinion or advice, TS then advised it was his opinion. • MA then advised that he would get back to him regarding this matter." 1. While neither Mr Allworth nor Mr Dawson gave evidence, I accept their contemporaneous assertion that when asked, Mr Seremetidis said he was acting based on his own opinion. It could not be otherwise. Mr Seremetidis had discussions with the workers that morning based upon the matters he had ascertained on 1 February 2020. In any event, to say that he acted on his opinion, not on advice, is hardly a criticism. Even the statements issued by Qantas Group Medical were opinions (although well researched opinions). 2. At 7.20am Mr Seremetidis completed his first task and returned to the meal room. Mr Seremetidis spoke to Ms Petrou and other workers in the meal room. She recalled Mr Seremetidis saying that China had "closed" and they did not have to clean the planes from China (Tcpt 845/27 – 847/20). Mr Seremetidis advised that workers have the right to cease unsafe work under s 84 of the WHS Act and he repeated his direction under s 85 of the WHS Act (Tcpt 313/25-37). 3. Ms Petrou gave evidence (Tcpt 851/35-50) about her conversation in the meal room with Mr Seremetidis: "Q. Did you have a conversation with him? A. Yes, I did. Q. What did he say to you? And again, if I can say what we're interested in? A. Mm-hmm. Q. We're not requiring you with exact words said, but words to the effect, what did Mr Seremetidis say to you? A. He said that he's talking to all leading hands, just advising us for our safety that we can refuse a task if it's a China plane and we don't feel comfortable and safe to go on it. Yep. Q. Did you respond to that? A. Yes, I said to them, I said 'Theo, we can't refuse a task', and I - and then I looked at him and smiled and he goes to me 'I can tell by that expression you're going to do it', and I said, 'Yes, I am. Yep'." 1. Ms Petrou gave the following evidence (Tcpt 868/15-23) about whether Mr Seremetidis was causing anxiety by speaking to staff in the meal room: "Q. Now, the crew that was with you at the table, did they seem concerned at all, by anything Mr Seremetidis said? A. No. Q. Did they appear anxious? A. No. Q. Did they appear on edge? A. No." 1. Later in the morning (at 10.20am) Ms Perryman sent an email to Ms Watts, Ms Camilleri and Mr Hardy headed "Conversation held with Litsa Petrou" (PX 1, Tab 38). The email contained Ms Perryman's note concerning her conversation with Ms Petrou at 9.40am in Bay 33. Ms Perryman said: "Litsa advised that Theo Seremetidis was in Bay 24 lunch room advising SIT Fleet Presentation staff not to go on­board any flights impacted by the Coronavirus Litsa advised that Theo Seremetedis was approaching staff as they were sat at the tables in the meal room Litsa advised that Theo was going up to staff saying "You can refuse the task and say Theo has told me not to go on the flight under section 84" or words to that affect Litsa advised that Theo Seremetedis has advised them that he is acting as a HSR Litsa advised that Theo had said 'Michael saying that staff could get fined was a threat' or words to that affect Litsa advised that staff were feeling on-edge because of what Theo was saying" 1. I find that Ms Petrou did not say to Ms Perryman that Mr Seremetidis was causing anxiety to staff in the meal room. The sworn evidence of Ms Petrou was to the contrary and she was not challenged in cross-examination about this part of her evidence. Ms Petrou declined to sign the draft statement. Ms Perryman did not give evidence. 2. Later in the day (at 3.26pm) Ms Camilleri sent an email to Ms Watts and Mr Hardy, copied to Mr O'Neill (PX 1, Tab 49). She set out her recollections of the conversation with Ms Petrou earlier in the day. Her email said: "Hi Nicole, Please see me recollections of the conversation held with Litsa Petrou today. Phone call with Litsa - taken on Sunday 02 Feb 2020. Phone call taken with Amanda Perryman as witness - 9.39am. Amanda put me on me on speaker with Litsa Petrou. Litsa confirmed the following conversations were being held with Theo Seremetidis (Theo) and employees in the meal room at SIT Bay 24. Litsa confirmed that Theo was going table to table in the meal room speaking with the crews. Litsa confirmed that 'Theo is going around telling people they do not have to work on the Beijing and Shanghai flights'. Litsa confirmed that Theo was advising staff that 'the government has now closed the borders', and 'all borders are closed' Litsa confirmed that Theo advised her that you 'can refuse it'. Litsa advised that by the look on her face that she gave Theo – Theo commented to Litsa – 'I know you will go on' I asked Litsa if he quoted anything – Litsa advised, 'yes, section 84 of the act'. Litsa advised that Theo said 'what Michael said about a fine is a threat' or words to that effect. Litsa advised 'He is a HSR, people will listen to him'. Litsa advised that 'his (Theo) comments are causing staff unnecessary concern' or words to that effect. I thanked Litsa for being mature about the situation. Litsa added that she and her team were happy to go and get on with it, she understood this is the current environment in which we work and it's an airport environment. She added that as long as the managers are telling us its ok, then she understands it to be ok. I thanked Litsa. Conversation ended." 1. The recollection in both emails that Ms Petrou said that staff were feeling on-edge because of what Theo was saying, was not confirmed by Ms Petrou in her oral evidence. Nor was there cross-examination to suggest that Ms Petrou had said this. 2. At 8.00am Mr Seremetidis performed his second task on a Qantas plane. While working on that task he received calls from workers in Moustapha's crew, including Mr Jothivelu, concerning their conversations with Mr Allworth (Tcpt 314/49 – 315/11). 3. At about 8.00am Mr Brett Hardy received a phone call from Ms Watts. She said she was at home and was making her way to the airport. She said words to the effect: "We have people refusing to clean the aircraft." 1. Mr Hardy advised Ms Watts that she should let him know what was happening when she got to the airport. Ms Watts called Mr Hardy many times during the course of the morning. At one stage he was informed by Ms Watts that Mr Seremetidis was telling people "not to work". Mr Michael O'Neil, from Industrial Relations (IR), was called into work. Mr Hardy said that he could not remember if he directed Ms Watts to stand down Mr Seremetidis, or if that was a decision made by Ms Watts and Mr O'Neil. He did say that he agreed with the decision. Mr Hardy said that Mr Seremetidis was giving people a direction not to work, or advice not to work. He could not remember if it was advice or a direction. 2. This account of Mr Hardy is contained in a notebook statement taken by Inspector Harris (PX 4, Tab 129). Mr Hardy was not called to give evidence. 3. At 8.30am Mr Seremetidis sent a text message to Mr Allworth (PX 1, Tab 37). Mr Seremetidis said: "Hi Michael, I've just been informed that you've made threats against workers should they decide to cease unsafe work. If this is the case, I'd like to inform you that you're in breach of section 108 and 109 of the WHS Act and this will be escalated. Also any actions taken against HSRs for directing cessation of unsafe work is a breach of 104. Let me know if you have any questions. Theo." 1. At 8.32am that text message from Mr Seremetidis was forwarded by Mr Allworth to Ms Camilleri, Ms Watts, Ms Davidson, Mr Ezekiel and Mr Hardy. 2. At 9.06am Mr Seremetidis completed his second task and returned to the meal room. From 9.30am onwards Mr Seremetidis had further discussions with workers in the meal room. Around 9.30am Mr Seremetidis gave workers in the meal room advice about s 84 of the WHS Act and directions under s 85 of the WHS Act. 3. At 9.45am Mr Seremetidis commenced cleaning an American Airlines flight. 4. At 9.48am Ms Camilleri sent an email to the Qantas Surveillance Centre requesting CCTV footage from the Bay 24 meal room for that day (PX 3, Tab 51, p 3). 5. After completing his third job for the morning Mr Seremetidis drove back to the blanket bay area near Bay 33. He saw Mr Allworth who said: "Nicole Watts wants to see you, get a support person" (Tcpt 316/11). Mr Seremetidis called Mr Lau, Ms Marsic and Mr Rogers from the TWU, without success (Tcpt 316/13-41). 6. At 10.43am Mr Seremetidis spoke to Inspector Harris from SafeWork. He said, "I feel that I'm going to be stood down because I gave a direction to cease unsafe work". Inspector Harris asked for the phone number of Ms Watts, which Mr Seremetidis provided (Tcpt 316/43 – 317/9). 7. Mr Seremetidis then rang Mr Dixon of the TWU, who was working at the Domestic Terminal. Mr Dixon said he needed to finish up his work and find a vehicle, then he would drive across (Tcpt 317/14-41). 8. While Mr Seremetidis was waiting outside the blanket bay, he received calls from workers back in the meal room. He said (Tcpt 317/43 – 318/27): "Q. Were you able to go, for example, to the meal room to make calls or anything like that? A. No. Q. Did you attempt to? A. Yes. Q. How did you attempt to? A. Initially I received calls from workers again regarding a toolbox meeting about, about the cleaning of the first aircraft 10.30. Q. This is the one scheduled from China? A. Yes, and I received a call from workers asking me to be present into that meeting with them as their HSR. I responded that I was unable to do. Q. So you'd had that contact, but you're now trying to find a support person and you're still standing in the blanket bay? A. Yes. Q. Did you - and I think you said that you did attempt to go back to the meal room? A. Yes. Q. How did you attempt to go back to the meal room? A. I asked Mr Allworth. Q. What did you say to him? A. 'I need to go back to the meal room because workers are calling from meeting' and I also needed to top up my water. Q. You had like a bottle of water? A. A bottle, yep. Q. What did he say? A. 'That would be impossible'." 1. At 11.10am on 2 February 2020 Inspector Harris sent an email to Mr Seremetidis titled "Federal Government Advice" (PX 1, Tab 46). This email forwarded a link to "The last information from the Federal Department of Health". 2. At 11.12am on 2 February 2020 Ms Camilleri forwarded to Ms Watts a copy of the email titled "Michael Allworth conversation with Theo Seremetidis" (PX 1, Tab 40). 3. Mr Dixon arrived at the blanket bay about 30 to 40 minutes after Mr Seremetidis first called him (Tcpt 318/38). 4. At about 11.30am there was a meeting with Mr Seremetidis, Mr Allworth, Ms Watts, Mr Dixon and Ms Marsic (who listened in by telephone). Mr Seremetidis gave the following evidence about the meeting (Tcpt 318/46 – 319/7; 319/34 – 321/49): "Q. While you're standing there in the blanket bay, do you see Ms Watts? A. Yes. Q. Where do you see her? A. She walked outside to where I was. Q. Did you have a conversation with her? A. Yes. Q. What did she say? A. She came out to see why there was a delay and I explained that I was waiting for a support person. Q. This period of time when you're in the blanket bay and you've given evidence you were trying to contact people, was Michael Allworth with you the whole time? A. Yes. Q. Did Mr Dixon finally arrive? A. Yes. Q. When he arrived, where did you go? A. Into the meeting room with Ms Nicole Watts and Mr Allworth. Q. So there was you, Mr Dixon, Ms Watts and Mr Allworth? A. Yes. Q. While you were going into the meeting room did you receive a phone call? A. It was shortly after we walked into the meeting I received the phone call, yes. Q. Who was that phone call from? A. It was Ms Marija Marsic. Q. You mentioned beforehand that she was one of the people you were trying to contact? A. Yes. Q. So you've got her on the telephone? A. Yes. Q. Were you able to say anything to her at that point? A. I said that I was in a meeting with management and I also asked permission from management if she can be on loud speaker. Q. When you say 'management', are you talking about Ms Watts and Mr Allworth? A. Yes. Q. When you made that request, what did they say? A. They were okay with that. Q. So did you put Ms Marsic on loudspeaker? A. Yes. Q. Who spoke first in this meeting? A. For recollection it was Ms Watts. Q. Again, the best you can do in words to the effect, what did she say to you? A. 'We're standing you down for directing workers to cease unsafe work and for causing anxiety to the workers.' Q. Did you respond to that? A. I, I don't think I did. I don't remember. Q. Now you said Ms Marsic is on the loudspeaker. Did she say anything? A. She wanted to ask a few questions, yes. Q. Again, to the best of your recollection, what questions did she ask? A. She asked about personal protective equipment. Q. What did she ask or say? A. 'Has the PCBU provided extra personal protective equipment and how is the risk managed' from memory, and she talked about prohibited behaviour, but I can't remember exactly in regards to standing down the health and safety representative. Q. When Ms Watts - you gave evidence that she spoke, she was kind of the first person to speak - did she have like a folder in front of her or did she refer to anything? A. She was reading from her phone. Q. With Ms Marsic asking some questions, did she ask anything about confirmation or the reason that was put forward for you being stood down? A. Yes. Q. What did she say? A. 'Are you standing Theo for ceasing unsafe work or directing the cease unsafe work and causing anxiety to workers?' Q. Did Ms Watts reply? A. Yes. Q. What did she say? A. 'Yes.' Q. The other questions that you said Ms Marsic asked, and I think there was one about PPE, was that answered by either Ms Watts or Mr Allworth? A. No. Q. I think there was a question about how the risk was being managed or handled. Was that answered by Ms Watts or Mr Allworth? A. No. Q. Then the other one where I think it was something about prohibited conduct? A. Prohibited behaviour. Q. Prohibited behaviour, I'm sorry. Was there any response from Ms Watts or Mr Allworth? A. She interrupted and said that she had to be somewhere else and she, she had to leave shortly. So she never had the conversation. Q. During this meeting, you've referred to Qantas management and then you've identified Nicole Watts and Michael Allworth. Did Mr Allworth say anything during this meeting? A. From recollection, no. Q. Now you've given evidence that Ms Watts said again something along the lines of, 'Look, I have to go somewhere else.' What happened at that point? A. She advised that I would be escorted out by Mr Allworth. Then Mr Dixon asked if he could escort me out and they accepted. Q. When you say 'escort out', where did you go? A. To the gate of the premises and then leave the premises. Q. Did you have a car parked somewhere near, or? A. It was the - it was Mr Dixon's car, who had arrived from domestic. He had escorted me out in the same vehicle. 1. Ms Marsic gave evidence about the meeting. She said (Tcpt 665/35 – 667/7): "Q. Can I take you to 2 February 2020 which was a Sunday. A. Yes. Q. On Sunday morning where were you? A. I was at home. Q. At some point, did you note or notice an attempted contact of you? A. Yes I did. Q. What did you discover? A. Sure. So I discovered that I had a missed phone call and a text message from Mr Seremetidis. Q. You had a missed phone call and a text message? A. That's correct, yes. Q. What did the text message say? A. It said words to the effect of 'Can you please help? I'm being stood down.' Q. Upon receiving that did you attempt to contact Mr Seremetidis. A. I can't remember if we eventually spoke as a result of me calling him or him calling me. Q. But at some point you did speak to him over the phone? A. That's correct yes. Q. At that particular point when you did make contact with him over the phone, what did he say to you? A. He told me words to the effect of 'I'm being stood down. I'm about to go into a meeting with management, I have Mr Donald Dixon with me. Can I please put you on loudspeaker, can you please come into the meeting with me?' Q. Did you respond to that request? A. Yes I did. Q. What did you say? A. I said 'That's fine.' I said 'Put me on loudspeaker and you can introduce me and'-- Q. So you were put on loudspeaker? A. Yes. Q. You were able to hear people speaking in whatever room they were in? A. Yes. So Mr Seremetidis introduced me to management and introduced management to me. Q. When he introduced management to you, again, words to the effect, what did he say? A. He said 'This is Ms Nicole Watts and Michael Allworth.' And then said 'This is Marija from the transport worker's union. She'll be my representative today.' Q. After that introduction, who spoke next? A. From what I remember it was Ms Watts that spoke next. Q. Then in words to the effect, what did she say? A. Ms Watts said words to the effect of 'Theo, we're standing you down today because you're causing anxiety to workers because you've ceased unsafe work.' Words to the effect of 'We're going to have an investigation and you need to leave the premises.' Q. After she said that was anything else said? A. By Ms Watts? No. There was a silence and then I said 'Excuse me, just a moment. I just want to clarify something, you're alleging that Mr Seremetidis is causing anxiety to workers and that's because he gave a direction to cease unsafe work. Is that right? Q. Did Ms Watts respond? A. Yes. Q. What did she say? A. She said 'Yes'." 1. Mr Seremetidis and Ms Marsic gave clear and consistent evidence about the reason given by Ms Watts for standing down Mr Seremetidis. Both recalled Ms Watts saying that Mr Seremetidis was being stood down for directing workers to cease unsafe work and for causing anxiety to the workers. Mr Dixon could not recall the detail of the conversation (Tcpt 685/45). Neither Ms Watts nor Mr Allworth (who was present but silent) gave evidence. Both Mr Seremetidis and Ms Marsic said Ms Watts was reading a script on her phone when she delivered reasons for the stand down. Ms Watts told Inspector Harris that IR had prepared a script, which she then read off her phone to Mr Seremetidis (Tcpt 145/50). The script on Ms Watts' phone was not put into evidence. 2. It is clear that there was really only one reason for standing Mr Seremetidis down, and that was because he gave workers a direction to cease unsafe work. Ms Watts clarified to Ms Marsic that she alleged that Mr Seremetidis was causing anxiety to workers because he gave them a direction to cease unsafe work. In those circumstances I have no hesitation in finding as a fact that QGS said that its reason for standing Mr Seremetidis down was because he directed workers to cease unsafe work. This was accepted by QGS in final submissions (Tcpt 999/34-36). 3. There is ample evidence that Mr Seremetidis did give directions on three occasions that workers should cease (or really, refuse to commence) work on the cleaning of flights expected to arrive from China on 2 February 2020. Mr Seremetidis said on all three occasions that he was giving a direction to cease work under s 85 of the WHS Act. 4. There was no evidence that he was causing anxiety to workers by giving the directions. None of the witnesses called, including Ms Petrou, said this. 5. After that meeting Mr Dixon escorted Mr Seremetidis from the Sydney International Terminal. 6. Mr Dixon then returned to Ms Watts' office. He asked Ms Watts and Mr O'Neill further questions. Later in the day (at 1.51pm) Mr Dixon sent an email to Mr Seremetidis and Ms Marsic (PX 1, Tab 47). His email said: "Hi Guys, I went back to ask the QGS Manger Nicole Watts an extra question, she had a new person with her QGS Legal Michael O'Neill. I was on my own. Question . How many people have you, as a duty of care sent home because they have reported to management of being anxious. Decline to answer. They both then said that there is more alleged allegations that we will be formally supplied in the next few days in writing. Meeting ended." 1. At 11.39am on 2 February 2020 Inspector Harris sent a text message to Ms Watts (PX 3, Tab 42). The message asked Ms Watts to call Inspector Harris as soon as possible. 2. At 11.55am on 2 February 2020 Ms Perryman sent an email to SHR Fleet Planning confirming that Mr Seremetidis had been directed not to attend work (PX 3, Tab 44). 3. At 11.57am on 2 February 2020 Ms Camilleri forwarded Ms Perryman's email to Mr Ezekiel and Ms Davidson (PX 3, Tab 44). 4. At 12.23pm on 2 February 2020 Ms Tracey Alba (whose title was "National Manager Operational Excellence QGS") sent an email to Mr Seremetidis (PX 2, Tab 101). Ms Alba said that she would be conducting the investigation into allegations concerning the conduct of Mr Seremetidis. She confirmed that he would continue to be paid during that time. Mr Seremetidis was directed not to attend work until further notice. 5. At 12.36pm on 2 February 2020 Ms Watts called Inspector Harris. 6. At 12.55pm on 2 February 2020 Mr Moran forwarded to Ms Camilleri an email from Inspector Harris to Mr Seremetidis (PX 3, Tab 46). The email was entitled "Federal Government Advice". 7. At 1.17pm on 2 February 2020 Ms Camilleri forwarded a copy of the email to Ms Watts and Mr O'Neill (PX 3, Tab 46). 8. At 3.08pm on 2 February 2020 Ms Camilleri sent an email to Mr Moran, copied to Ms Davidson, Mr Hardy, Ms Watts, Mr Ezekiel and Mr O'Neill (PX 1, Tab 48). Ms Camilleri said to Mr Moran that she had spoken with Ms Watts and that Mr O'Neill and Ms Watts had already spoken with Colleen Harris from SafeWork. Ms Camilleri sought "your assistance with managing the expectations of SafeWork and what evidence they would like". Ms Camilleri disputed a statement made by Mr Seremetidis that no communication had been provided by QGS, but she said she was not sure on the full context of such statement from Mr Seremetidis. 9. At 3.36pm on 2 February 2020 Mr Allworth sent an email to Ms Camilleri and Ms Watts (PX 1, Tab 50). He set out his recollections of the events of the day as follows: "Fran / Nicole This morning I received a call informing me that Theo was in the meal room informing staff that they are not to service flights from China. As a result of this call I proceeded to bay 24 and with Scott Dawson present I called Theo, the call was made at 0707. I asked Theo if he was directing staff not to service any flights from China ? Theo said that was correct due to the higher risk and the Australian government closing the border overnight. I then asked Theo what he was basing his decision on, his opinion or advice from someone else ? Theo said it was his opinion, I then concluded the phone call by telling Theo I would get back to him. After this call I sent a text message at 0715 with the above details to Nicola Davidson, Brad Ezekiel, Brett Hardy, Francene Camilleri and Nicole Watts. Following this I then proceeded to brief the team tasked to clean QF128. Following the briefing I received a text from Theo stating 'Hi Michael. Ive just been informed that you've made threats against workers should they decide to cease unsafe work. If this is the case, id like to inform you that youre in breach of section 108 and 109 of the WHS Act and this will be escalated. Also any actions taken against HSRs for directing cessation of unsafe work is a breach of 104. Let me know if you have any questions. Theo' If you require anything further, please let me know." 1. At 11.53pm on 2 February 2020 Ms Camilleri sent an email to the GSOT group forwarding the day's medical update from Qantas Group Medical Group (DX 13). The update referred to the number of cases, the number of deaths and the countries affected by Coronavirus. There was a reference to the first case of a health care worker outside of China becoming infected. For the first time a case was exported from a country other than China (being Japan). Further instances of human-to-human transmission were reported in Japan, Germany, Thailand and the Philippines. The email referred to border entry control measures taken by Australia to restrict the number of imported cases from mainland China. 3 February 2020 1. On 3 February 2020 QGS sent a letter to Mr Seremetidis entitled "Direction to not attend work" (PX 2, Tab 102). The letter came from Ms Alba and confirmed that she was undertaking an investigation into "allegations involving your conduct on 2 February 2020 at Sydney International Terminal". Mr Seremetidis was directed not to attend work until further notice during the investigation. He was told he would continue to be paid during that time. The letter said that "a letter detailing the allegations will be available to you shortly". 4 February 2020 1. On 4 February 2020 the CCTV footage from the meal room was made available to Ms Camilleri (PX 3, Tab 51, pp 2-3). 2. On 4 February 2020 Ms Watts sent an email to Ms Alba with material to be taken into account during the investigation (PX 3, Tab 84). 5 February 2020 1. On 5 February 2020 Ms Petrou called Mr Seremetidis. Ms Petrou found out for the first time that Mr Seremetidis had been stood down on 2 February 2020. She said that she could not understand why he had been stood down, as "you were only advising us as a HSR" (Tcpt 870/9-28). 6 February 2020 1. On 6 February 2020 Ms Petrou attended a meeting at the Qantas Head Office with Ms Perryman and Ms Lockley. At 7.21pm on 6 February 2020 Ms Lockley sent an email to Ms Petrou (PX 2, Tab 86). The email forwarded a statement drafted for Ms Petrou. Ms Petrou was asked to review the content to ensure its accuracy, in which case she should sign it and email it back to Ms Lockley. Ms Petrou said in evidence that she did not sign it as "I didn't want to" (Tcpt 870/33 – 874/14). There had been earlier evidence from Inspector Harris that Ms Petrou did not want to sign the statement because it wasn't accurate (Tcpt 873/1). 7 February 2020 1. On 7 February 2020 QGS issued a letter to Mr Seremetidis entitled "Allegations about your conduct" (letter of allegations) (PX 2, Tab 89). The letter of allegations came from Ms Alba, the investigator. It is necessary to reproduce the letter of allegations in full in this judgment for the following reasons: 1. To come to a view as to whether the allegations in the letter of allegations were the same as the allegations made when Mr Seremetidis was stood down on 2 February 2020. 2. To consider and make a finding as to the reason for QGS standing down Mr Seremetidis on 2 February 2020. 3. Because two lines in the letter of allegations are said to constitute the "threat" pleaded in par 10 of the Amended Summons in proceedings 2021/284183 and the "threat" pleaded in par 10 of the Summons in proceedings 2021/284172. 1. The Summonses in proceedings 2021/284183 and 2021/284172 made allegations concerning the events of 7 February 2020. The particular part of the letter of allegations (PX 2, Tab 89) which was said by the prosecutor to constitute the "threat" appears on p 5 of the letter of allegations as follows: "Theo, the Allegations are serious. If substantiated, they may result in disciplinary action being taken against you (which could include a warning or even termination of your employment)." 1. I have reproduced that part of the letter at this point in the judgment because I have come to the view that these words do not constitute a threat, for reasons set out below. This is my reason for the view expressed at the commencement of this judgment that the prosecutor has not proved the elements of the two Summonses relating to the "threat" said to have been made on 7 February 2020. 2. The letter of allegations dated 7 February 2020 reads as follows: "Dear Theo, Allegations about your conduct Thank you for speaking with me today. As we discussed, Qantas Ground Services Pty Ltd (Company) is conducting an investigation under the Standards of Conduct Policy in relation to allegations that involve you (Allegations). Investigation process It is important for you to know that, at this stage, I have not made any findings about the Allegations. This is your opportunity to put forward your response to the Allegations, so that it can be fully considered before any decision is made. The process being followed in this investigation is in accordance with the Disciplinary Procedure in the Standards of Conduct Policy. Enclosed is an information sheet that outlines the investigation process. Background You have been employed by the Company since 29 April 2014. Your current role is Ground Crew, Fleet Presentation at Sydney International Terminal (SIT). You were elected as a Health and Safety Representative (HSR) from approximately December 2017 and continue to act in your capacity as a HSR to date. Over the period 28 to 31 January 2020, you were provided information and attended briefings and participated in email exchanges regarding the Coronavirus in your capacity as a Fleet Presentation Ground Crew member and as an HSR (Briefings). The Briefings provided information and answered questions in relation to the risks of transmitting and contracting the Coronavirus while completing normal aircraft cleaning procedures including cleaning planes which originate from mainland China. These Briefings included but are not limited to the following meetings and correspondence: 1. At 1040 on Tuesday 28 January 2020, Francene Camilleri, Operations Manager, Fleet Presentation sent you an email that included links to the Qantas Group Terminal webpage for the Coronavirus by Qantas Group Medical (Terminal Page), as well as the webpages for the Centres for Disease Control and Prevention, World Health Organisation (WHO) and the Australian Government Department of Health. 2. At 1400 on Tuesday, 28 January 2020, you attended a meeting via a teleconference during which Doctor Russell Brown of Qantas Group Medical provided all HSRs with a briefing on the information known at that time about the Coronavirus which included information that the risk of the Coronavirus spreading to ground crew including aircraft cleaners was 'extremely low'. 3. At 1730 on Tuesday, 28 January 2020, Ms Camilleri sent an email to you that said that the Terminal Page was being updated daily with information on the Coronavirus and that 'GSOTs were out and about with firsthand information, ready to provide to all workers including those attending aircraft that arrive from China'. Ms Camilleri also advised you that any workers with a concern in relation to psychological, physical or emotional health should contact their GSOT or Supervisor. 4. At 1652 on Wednesday, 29 January 2020, Ms Camilleri sent you an email that said that '[a]ny questions, concerns or suggestions of HSRs can be raised via management for consideration and the outcome of the Crisis meetings is being communicated via the management teams'. Ms Camilleri also said in this email that HSRs should contact managers with concerns in relation to the Coronavirus. 5. At 1110 on Thursday, 30 January 2020, you received an email from Colleen Harris, Principal Inspector SafeWork NSW, that included a link to the webpage from the Australian Government Department of Health for the Coronavirus. Ms Harris noted that the webpage 'has specific information for Boarder Control (sic) and public transport'. In the link to the webpage a 'Novel Coronavirus Information Sheet for International Flights' dated 1 February 2020 is available for the airline industry that said 'While the infection does not currently appear to spread easily between people, the following measures will also help reduce the risk of spread…'. 6. On or around 0645 Friday, 31 January 2020, you attended a meeting as the support person for 3 QGS colleagues who had each refused to perform cleaning tasks on planes originating for mainland China the previous day. At the meeting was Nicole Watts, Regional Manager QGS NSW & ACT, and Michael Allworth, Ground Services Operational Team Manager (GSOT) Fleet Presentation who explained that the direction to clean planes was lawful and reasonable. Whitney Hughes Manager Aviation Health Programs from Qantas Group Medical joined the meeting by phone. The call with Ms Hughes lasted approximately 45 minutes, during which, she provided a briefing and answered questions on the Coronavirus which included advising: (a) Qantas Group Medical was consulting with the WHO, the Australian Government Department of Health, the Chief Medical Officer of Australia, and the IATA Medical Advisory Group; (b) The medical information was that the risk of contracting Coronavirus from servicing/cleaning planes out of mainland China was extremely low, in the absence of extremely close physical contact with an infected person. 7. At 1400 on Friday, 31 January 2020, you attended a briefing with Dr Russell Brown, Medical Officer from Qantas Group Medical, in your capacity as an HSR, with other HSRs and employees, including a Union official, QGS management and Qantas Airport management representatives. During the briefing Dr Brown said words to the effect that: (a) The Australian Chief Medical Officer had advised that there was no reason for anyone to stop flying in and out of China based on the current information; (b) Provided advice to the effect that the Coronavirus spreads by very close contact, only from close household contact and healthcare workers providing help to those who are actively sick; (c) The wearing of masks by asymptomatic people is not connected with medical evidence; (d) There was no evidence at that stage of the Coronavirus being contracted from surfaces and that, in this regard, the Chief Medical Officer of Australia had advised there was no need for anyone to wear masks or gloves where all passengers were asymptomatic. 8. From 31 January 2020, the Qantas Group 'Coronavirus - Factsheet for ground workers' dated 30 January 2020 and the WHO 'How to Wash Your Hands Guide' were posted on the SIT Fleet noticeboard, in the Bay 24 meal room noticeboards, on or around meal room tables, on the walls of Bay 24 Male and Female toilets, in the Bay 24 GSOT Office and all Fleet Presentation Vans (Notices). Allegations It is alleged: 1. On 2 February 2020, Mr Allworth telephoned you at around 0705 you had a conversation with him to the following effect: Mr Allworth: Are you directing staff not to service flights from China? You: I am telling staff not to service flights due to the high risk and that the Australian Government have closed the borders. Mr Allworth: Is this direction based upon your opinion or advice? You: It's my opinion. 2. On 2 February 2020, at around 0710 to 0730 in the Bay 24 meal room, on at least one occasion you told at least one employee, in front of other co-workers words like: 'Guys just a heads up that for safety reasons you don't have to go and do the China flights. If you want, mention my name and I will take control.' 3. On 2 February 2020, at around 0917 and 0937 in the Bay 24 meal room, on at least one occasion you told at least one employee, in front of other co-workers regarding refusing to service the flights from mainland China words like: (a) 'Just a heads up for safety reasons, can I advise you, that you do not have to go on the plane, you can refuse the task'; (b) 'I am just advising you for safety reasons, if you don't want to do it, you can refuse them and tell them it was from Theo.'; and (c) 'I am telling everyone... everyone knows about it'. 4. On or around 2 February 2020, you posted multiple comments on the QGS Fleet Sydney International Facebook Group (Facebook Group) in response to a post on the Coronavirus. It is alleged you posted words like: (a) To Edie Taylor you posted '... as this is now a major risk to the point that the government has closed the border with China, it's quite simple. You have the legislative right to Refuse unsafe work.'; and (b) To Gregory William Downie you posted ' ... well it's up to you if you deem it safe. I can only go with what safework says and Australian government backed it up.' 5. You knew or ought to have known that the information you provided to employees as set out in Allegations 2, 3 (a), (b), 4 (a) and (b) misrepresented the information provided to you in the Briefings. 6. Given the Briefings, you knowingly or recklessly made false or misleading representations in Allegations 2, 3 (a), (b), 4 (a) and (b) about the workplace rights of at least one employee. 7. You knew or ought to have known your comments and actions to employee/ s as set out at Allegations 2, 3 (a), (b), 4 (a) and (b) above were an attempt to incite unprotected industrial action by employees of the Company. 8. You knew or ought to have known that you were not authorised to tell employees not to service aircraft that had arrived from mainland China. As part of this investigation I have obtained CCTV footage. If you would like to view this footage, please let me know and I can arrange for you to view the footage. A copy of the Notices posted in SIT are enclosed. A copy of the screenshots of comments from the Facebook Group are also attached. Your response Please respond to me in writing to Tracy Alba, National Manager of Operational Excellence, QGS care of [email address] by 1700 on Friday 21 February 2020. You may provide any information that you think will assist me or that you would like to have considered in response to the Allegations. If you cannot respond by this time, please contact me so that we can discuss alternatives. I would also like to meet with you to discuss your response to the Allegations and this matter generally. The meeting is an opportunity for you to provide any further information that you would like me to consider in the investigation. I will provide you with details of the meeting after receiving your written response. Present at the meeting will be myself and a Company representative. You are welcome to bring a support person to the response meeting and any other meetings held as part of this investigation. Direction to not attend work As per the directions issued to you on Sunday, 2 February 2020 and Monday, 3 February 2020, you remain directed to not attend work until further notice from the Company while we investigate the Allegations. You will continue to be paid during this time and must be available at the Company's request. We currently have your contact details on file as follows [mobile number]. Please let me know if those contact details are incorrect. Potential breaches You should be aware that if substantiated, your conduct may be in breach of the following, including but not limited to: Standards of Conduct Policy Section 4.2 Employees are responsible for: (a) their own behaviour and actions at all times; (b) being aware of and complying with all Qantas Group policies; (c) ensuring that their behaviour is, at all times, consistent with applicable Qantas Group policies, the Non-Negotiable Business Principles, the Qantas Group Beliefs and the Cardinal Rules; Section 5.1 Employees must act with honesty and integrity. This includes, but is not limited to, Employees: (a) being beyond reproach in matters of trust, honesty and confidentiality; (b) never misusing any privilege, authority, entitlement or status; (j) not providing incorrect or misleading information connected to the Employee's employment; Section 5.2 Employees must abide by applicable laws and regulations, policies and procedures. This includes, but is not limited to, Employees: (b) complying with all applicable Qantas Group policies, procedures, guidelines and rules as amended from time to time; Section 5.6 Employees must exercise reasonable care and skill in the performance of their duties. This includes, but is not limited to, Employees: (c) not being reckless or careless in the discharge of their duties, including in respect of the storage of information. A copy of the Standards of Conduct Policy is enclosed with this letter. Theo, the Allegations are serious. If substantiated, they may result in disciplinary action being taken against you (which could include a warning or even termination of your employment). Confidentiality You are directed to keep the Allegations, all correspondence (including this letter) and the investigation confidential. You must not discuss this matter with any other person unless they are acting as your support person or representative, particularly any other employees who may be involved in this investigation. Everyone involved in this process, including your support person or representative, is also required to keep the matter confidential. You are directed not to make any direct or indirect contact (including but not limited to in person, by phone, on social media or otherwise in writing) with any of the people mentioned in the Allegations above or any witnesses involved in this investigation. This is a lawful and reasonable direction in the circumstances and failure to comply may result in further investigation. Employee Assistance Program (EAP) [Two paragraphs omitted] Yours sincerely, [Signature] Tracy Alba National Manager of Operational Excellence Qantas Ground Services Enclosures: 1. Information for the Respondent about the Investigation Process. 2. Standards of Conduct Policy. 3. A copy of the Notices posted from 31 January 2020. 4. Screenshots of comments from the Facebook Group." 1. The first enclosure with the letter of allegations was the document headed "Information for a Respondent about the Investigation Process". That document said that the respondent to the investigation should respond to the allegations in writing. In relation to the mention in the letter of allegations concerning disciplinary action, the following explanation was given: "The letter mentions disciplinary action may be taken (including possible termination of employment). What does that mean? If the allegations being investigated are substantiated, then disciplinary action may be taken. A range of disciplinary options may be available, including a formal warning, demotion, or even termination of your employment. The decision about what action is appropriate will depend on a range of factors, including the seriousness of the allegations, and any other relevant circumstances. You will be asked to attend a meeting to discuss the findings and any possible disciplinary action." 1. The Standards of Conduct Policy, which was also an enclosure with the letter of allegations, was tendered (PX 2, Tab 89, pp 10-31). Clause 3.2 of the document said that employees who breached the Policy may be subject to disciplinary action, which may include termination of employment. Reference was given to Section 12 of the Policy dealing with Disciplinary Procedure. 2. Section 12.4(b) of the Policy said that the investigator and any relevant decision makers must adhere to general principles of procedural fairness. 3. Section 12.5 of the Policy dealt with Disciplinary Outcomes. Section 12.5(a)(vi) said that where dismissal or summary dismissal is being considered, the employee must be given adequate warning that disciplinary action could lead to dismissal. 4. Section 12.5(b) of the Policy, said that the types of disciplinary actions were formal warnings, demotion, dismissal and summary dismissal. 5. The particular Facebook posts referred to in allegation 4 set out in the letter of allegations (PX 1, Tab 89, p 5) were reproduced as an enclosure to the letter. Consideration of the Letter of Allegations 1. As stated above, I have reproduced the letter in full in this judgment for the following reasons: 1. To come to a view as to whether the allegations in the letter of allegations were the same as the allegations made when Mr Seremetidis was stood down on 2 February 2020. 2. To consider and make a finding as to the reason for QGS standing down Mr Seremetidis on 2 February 2020. 3. Because two lines in the letter of allegations are said to constitute the "threat" pleaded in par 10 of the Amended Summons in proceedings 2021/284183 and the "threat" pleaded in par 10 of the Summons in proceedings 2021/284172. I will deal with this aspect of the letter of allegations later in this judgment. Were the 7 February 2020 Allegations the same as the 2 February 2020 Allegations? 1. I have found above that Ms Watts stood Mr Seremetidis down because he gave workers a direction to cease unsafe work 2. Against the material set out under the heading "Background" in the letter of allegations dated 7 February 2020 from Ms Alba, the letter sets out eight numbered allegations. It is probably more accurate to classify pars 1, 2, 3 and 4 under the heading "Allegations" as statements of fact which formed the basis for the allegations set out in pars 5, 6, 7 and 8 under the heading "Allegations". I will examine each of the eight numbered paragraphs. 3. Allegation 1 is simply a statement of fact, that Mr Seremetidis said to Mr Allworth that he was directing staff "not to service flights due to the high risk and the Australian Government having closed the borders". In answer to a question from Mr Allworth, Mr Seremetidis said that this direction was based on his opinion. Allegation 1 accords with the facts which I have found above. Allegation 1 sets out the statements made by Mr Seremetidis to Mr Allworth, which were to the effect that he had given a direction to staff to cease work. Allegation 1 is consistent with the first reason given by Ms Watts to Mr Seremetidis on 2 February 2020. 4. Allegation 2 does not relate to giving a s 85 direction to cease work. Rather, it is a statement that Mr Seremetidis told co-workers in the meal room that they had a s 84 right to refuse to do work for safety reasons. Allegation 2 is not a reason given to Mr Seremetidis for the standing down, but it is a background fact, in that Mr Seremetidis did give workers in the meal room advice in relation to their s 84 right to decline unsafe work. 5. The same can be said about the three statements set out in Allegation 3. In simple terms, Mr Seremetidis was saying to co-workers that they could refuse to do a task if they did not want to do it for safety reasons. Again, this was not a reason given to Mr Seremetidis on 2 February 2020 for the standing down, but it is a background fact established by the evidence, in particular by the evidence of Mr Seremetidis. 6. Allegation 4, concerning two posts on the Facebook site, falls into the same category. Mr Seremetidis said: "you have the legislative right to refuse unsafe work" and "it's up to you if you deem it safe". At its highest, these statements were Mr Seremetidis advising workers of their s 84 right to refuse unsafe work. Such matters were not part of the reasons given to Mr Seremetidis on 2 February 2020 for the standing down, but they are relevant background facts which are established by the evidence. 7. As recited above, Allegations 5, 6, 7 and 8 are the allegations being investigated by Ms Alba, against the background facts set out under the heading "Background" and in Allegations 1, 2, 3 and 4. 8. Allegation 5 says that Mr Seremetidis knew or ought to have known that the information he provided to employees set out in Allegations 2, 3(a), 3(b), 4(a) and 4(b) "misrepresented the information provided to you in the Briefings". It is hard to understand why it is asserted that Allegations 2, 3(a), 3(b), 4(a) and 4(b) constitute any misrepresentation of the information provided to Mr Seremetidis in the briefings. In these allegations, all QGS say that Mr Seremetidis did was to say that workers had a right under s 84 of the WHS Act to refuse unsafe work. He said nothing in those particular allegations to contradict or misrepresent the information provided in the Briefings. 9. Further, the underlying theme of the letter of allegations is that the briefings from Qantas Group Medical should somehow be treated as ex cathedra pronouncements concerning the Coronavirus, which should not be contradicted by a HSR. This was certainly not the careful and scientific approach taken by Dr Brown of Qantas Group Medical, who provided daily updates expressing his views about Coronavirus. Dr Brown was careful to say that the state of knowledge about Coronavirus was changing day by day. 10. I find that Mr Seremetidis was most conscientious in carrying out his role as a HSR. He kept himself up to date with the literature and with government announcements, even doing research on his day off. When he came to work on 2 February 2020, he was already concerned about changes in the outlook for the spread and contraction of Coronavirus. He held the view, rightly I find, that the information which he ascertained on 1 February 2020 had changed the position put forward in the briefing by Dr Brown on 31 January 2020. 11. Mr Seremetidis would not have been properly discharging his role as a HSR if he chose to ignore the new information. 12. Allegation 4(a) falls into a slightly different category. While the post on Facebook concluded with a reference to the right of a worker under s 84 of the WHS Act to refuse unsafe work, Mr Seremetidis did say "as this is now a major risk to the point that the government has closed the border with China, it's quite simple". The statement that there was now a "major risk" was certainly the opinion of Mr Seremetidis alone. However, the statement that the government had closed the border with China was completely accurate, as that was the gist of the announcement by the government made on 1 February 2020. The "Background" set out in the letter of allegations goes no further than 31 January 2020, a point at which the government had not closed the border with China. To speak, as set out in Allegation 4(a), of the government closing the border with China is not to misrepresent information provided in the briefings. The briefings were silent on that matter, logically so, as the border closure had not yet occurred. 13. The same applies to Allegation 6. Further, Allegation 6 refers to Mr Seremetidis making misrepresentations "about the workplace rights of at least one employee" without identifying what rights were allegedly being spoken about, or who the employee was. A plain reading of Allegations 2, 3 and 4 show that the statements about the workplace rights of employees generally went no further than telling them what was in s 84 of the WHS Act. I cannot see that there was any misrepresentation concerning workplace rights in Allegations 2, 3 and 4. 14. Allegation 7 says that the comments and actions set out in Allegations 2, 3 and 4 were "an attempt to incite unprotected industrial action by employees of the Company". That was not an argument advanced by Senior Counsel for the defendant at the trial, quite properly. There was no cross-examination of Mr Seremetidis to suggest that he had attempted to incite unprotected industrial action, a term of art found in the Fair Work Act (2009) (Cth). Nor was there any mention of that concept during the meeting on 2 February 2020 during which Ms Watts provided her reasons for the stand down. Ms Watts had not even hinted at Mr Seremetidis inciting unprotected industrial action. 15. Allegation 8 is that Mr Seremetidis knew or ought to have known that he was "not authorised to tell employees not to service aircraft that had arrived from mainland China". As Mr Seremetidis pointed out in his letter responding to that from Ms Alba, he did not need authorisation from QGS to give a direction under s 85 of the WHS Act. The power to give such a direction is one given to a HSR by statute. 16. The suggestion was advanced faintly in oral submissions that the use of the words "not authorised" in Allegation 8 were to be understood as QGS saying that the s 85 direction given by Mr Seremetidis was invalid because he had failed to comply with certain statutory provisions and that compliance was mandatory before a s 85 direction can be given. That was certainly not said in the letter of allegations and nor is it conveyed by Allegation 8. Further, it was not said by Ms Watts on 2 February 2020. At no point did she say or even hint that Mr Seremetidis was being stood down because the direction he gave under s 85 of the WHS Act to cease unsafe work was not a valid direction because he had not complied with certain provisions in the legislation. 17. That is one of the key submissions made by Senior Counsel for QGS at the trial, and I will deal with it on its merits below. However, I reiterate that Allegation 8 cannot be considered as QGS putting forward, in February 2020, as a reason for standing Mr Seremetidis down, that his s 85 direction was invalid and ineffectual at law. 18. I find that the allegations made in the letter of allegations dated 7 February 2020 (apart from Allegation 1) are not the same as the reasons given to Mr Seremetidis on 2 February 2020 for his standing down. 19. I further find that, since the standing down occurred on 2 February 2020, I must look to and only consider the reasons advanced on that date. I cannot and should not take into account the additional matters raised in Allegations 5, 6, 7 and 8 of the letter of allegations. As QGS submitted at the trial (MFI 41, p 4) the evidence must be "considered in the light of the facts and circumstances as at 2 February 2020". 20. I do remark that if I am found on appeal to be wrong in refusing to take into account any of the "allegations" except Allegation 1, the other allegations would be most relevant to the alternative "Issues and Concerns" charge in relation to the events of 2 February 2020. However, since I am ging to dismiss that charge because it is an alternative charge which does not have to be considered on its merits, I need say no more on that topic. 21. Further, I note that there is not a word in the letter of allegations concerning Mr Seremetidis causing anxiety to workers. However, that was one of the two matters put to Mr Seremetidis on 2 February 2020 as a reason for his standing down. The letter of allegations either abandons or ignores that matter. I remark again that there was no evidence that the s 85 directions given by Mr Seremetidis on 2 February 2020 did cause anxiety or concerns to workers. Any anxiety on the part of workers was existing anxiety caused by their worry about contracting Coronavirus from cleaning planes inbound from China. 22. There was anxiety at QGS, but it was the anxiety of management that Mr Seremetidis was pursuing his duties as a HSR, and that he might issue a provisional improvement notice, which would cause disruption to the cleaning of aircraft arriving from China. There is clear evidence of such anxiety on the part of management – see PX1, Tab 30, and Tcpt 145/1-8. There is no evidence of anxiety on the part of workers, caused by Mr Seremetidis and his conversations with workers on the morning of 2 February 2020. What was the Reason for Standing Down Mr Seremetidis on 2 February 2020? 1. The reason for standing down Mr Seremetidis on 2 February 2020 was, as found and discussed above, because Mr Seremetidis gave directions under s 85 of the WHS Act for workers to cease unsafe work. 21 February 2020 1. On 21 February 2020 Mr Seremetidis sent a letter to Ms Alba responding to the letter of allegations (PX 2, Tab 105). Because the letter contains such a detailed response to the detailed allegations, it is necessary to reproduce it almost in full in this judgment. In his letter Mr Seremetidis said: "Dear Tracey Re: Letter of Allegations I write to you today in response to allegations, issued to me by the person conducting a business or undertaking (PCBU), in this case, Qantas Ground Services (QGS), part of the Qantas Group, on Friday 07 February 2020. I have nominated the Transport Workers' Union (TWU) as my representatives. For the convenience of all parties, I ask that any correspondence from this point forward be in writing and delivered electronically to Ms Marija Marsic, on email [omitted]. I received written notice by email of the allegations at 5:30pm on the evening of Friday 07 February 2020. You informed me over the phone, during a conversation on Friday 07 February 2020 at approximately 5:00pm that I initially had until close of business Thursday 13 February 2020 to respond to the allegations. Mr Troy Rogers, and Ms Marsic of the TWU, were called in as my representatives. During this conversation, Mr Rogers asked for an extension on my response to allegations and you granted that extension period, noted in the letter of allegations as Friday 21 February 2020. The reason why I raise the timeframe of response is that if I was not stood down by the PCBU, I would have been on my rostered days off between Monday 11 February 2020, and Thursday 13 February 2020, inclusive. You have also informed me in the letter of allegations that I must be available at the PCBUs request. I have also had to use this time, to consider the allegations against me and write a response. As a result of following PCBU directions to be available on request, I cancelled the plans I scheduled during my rostered days off and expect that when I return to work, that the PCBU will re-schedule my rostered days off, to take at another time. Background Over the period of 28 to 31 January 2020, I agree that the PCBU did provide some information to some workers on the intranet about the coronavirus. During this period, I do not believe that the information on the intranet was adequate, or that genuine consultation occurred between the PCBU and all workers that may have been affected by the coronavirus. I do not believe that the views of workers were taken in to consideration on the decision making process, particularly when minimising risk and selecting control measures to minimise risk, and based this belief on consultation provisions, and the definition of consultation, under the Work Health and Safety Act (the Act). My belief and reasonable safety concern led me to send numerous emails and text messages to management between these dates to seek further information as workers were approaching me asking me what was going on. Workers were clearly concerned about the coronavirus. On Tuesday 28 January 2020 I sent an email asking the PCBU for information regarding the coronavirus and as a health and safety representative (HSR) and requested evidence of consultation occurring with all workers and which control measures and procedures would be put in place by the PCBU to mitigate risk to workers. I asked what information, training and instruction was provided to workers about the personal protective equipment (PPE) that the PCBU had provided them. I was particularly concerned about the adequacy of the PPE and disposal of the PPE. I also asked about workers' psychological welfare as I could clearly see and hear that they were concerned about contracting the coronavirus. The PCBU responded by saying that their approach was a 'global response', and that information to workers was available on the PCBUs intranet. I did not receive any of the information I specifically asked for as a HSR. In fact, when I asked to view risk assessments, I was informed by the PCBU that the format was different to a regular risk assessment matrix, and the risk assessments were not sent to me by the PCBU. I was concerned at the global approach by the PCBU as it appeared that no task based risk assessments were conducted by the PCBU, and if they were, they were not done in consultation with workers or HSRs. I was particularly concerned about the PCBUs response to being alerted to workers concerns of possibly being psychologically affected by the situation at the airport with the coronavirus. The PCBU informed me that workers had to approach management if they felt they needed assistance. I understand that the PCBU took no specific measures in trying to manage psychological risk of coronavirus in the workplace, despite it being raised as a specific issue. The PCBU also included in a response that workers could get information from the terminal. Again, I do not believe that this was genuine consultation with workers. On Friday 31 January 2020, I agree that I attended the meeting with the PCBU to discuss the coronavirus. At this meeting, a Qantas doctor was there to reassure everyone that it was very difficult for the virus to be passed on to another human unless you lived with the infected person, ate with the same utensils and slept in the same bed. The doctor also said that the coronavirus could not be contracted from infected surfaces, that there was no evidence of human-to-human transmission of the virus in the incubation period, and that only a person who was symptomatic could transmit the coronavirus. On Saturday 01 February 2020, the Australian Government made a public announcement and declared that there were travel restriction to Australia due to the coronavirus. I also discovered that it was possible for human to human transmission of the coronavirus, without the person being sick or showing symptoms. This information came from the New England Journal of Medicine (https://www.nejm.org/doi/full/10.1056/NEJMc2001468) dated 30 January 2020, in Boston, which was 31 January 2020 in Australia. I noticed this shifting medical advice on Sat 01 February 2020. On 01 February 2020, I also found evidence that the virus could be contracted from infected surfaces by an announcement that was made by the NSW Government. Fleet presentation workers are in consistent contact with surfaces on aircraft when cleaning. This new information provided by the Government was contrary to what the PCBU and the Qantas doctor told us at the meeting on Friday 31 January 2020. The information provided by the PCBU on Friday 31 January 2020 was not current by 01 February 2020, and the medical advice had shifted by 02 February 2020. When I arrived at work on Sunday 02 February 2020, there was no PCBU or representatives from management waiting to consult with workers on the new announcement and information regarding the coronavirus. This would have been reasonably practicable to expect in this circumstance, considering the Government announcement that was made a day earlier. In an email response from Ms Francene Camilleri, dated 28 January 2020, Ms Camilleri stated; 'The Qantas medical team is continually monitoring the situation, including providing daily updates'. Ms Camilleri continued to state; 'This information is updated daily for all workers at Qantas and in addition GSOTs are out and about with firsthand information, ready to provide to all workers including those attending aircraft that arrive from China.' I would like to point out, contrary to Ms Camilleri's email, workers on my shift on Sunday 02 February 2020 did not receive 'daily' updates from the PCBU, or information from GSOTs that were 'out and about' with firsthand information from Qantas. From the time of commencing my shift, to the time I was stood down, no information or daily update regarding the shifting medical advice for coronavirus was provided to workers on that day, who were attending to aircraft arriving from China. I understand that the PCBU decided to attempt to consult with workers while I was being stood down, even though there was an opportunity to consult with workers all morning, from the start of the shift at 6:00am. I was receiving messages from workers while this was occurring as they were requesting my presence as their HSR, but I could not attend. Background – Other SafeWork NSW At 11:10am on Thursday 30 January 2020, I did not receive an email from Ms Colleen Harris, Principal Inspector SafeWork NSW. Point 5, 'background', in the letter of allegations, is not factual. Allegations Allegation 1. At approximately 7:05am on Sunday 02 February 2020, Mr Michael Allworth contacted me to ask me if I was directing staff not to service flights from China. My response to Mr Allworth was that I have directed workers to cease unsafe work under Section 85 of the Act all flights coming from mainland China. Mr Allworth then asked me what this direction was based upon, and I responded by telling him that it was due to the increase of the risk [due to shifting medical advice regarding the coronavirus]. I based this on the following: a. Workers were approaching me and asking me what was going on regarding the planes that were coming in from China on the morning of Sunday 02 February 2020. They were worried about contracting the coronavirus; b. The Government had closed the border and made this announcement publicly on the evening of 01 February 2020, and were only allowing Australian Citizens to enter Australia and those citizens would be subject to 14 days in quarantine due the increased risk; c. The Government also released information on Saturday 01 January [sic: February] 2020, stating that the coronavirus could be contacted from surfaces, and I found updated materials that the coronavirus could be transmitted from person to person without the person showing signs of being sick; d. The information the PCBU told workers about on, and up until Friday 31 January 2020 was contrary to the Government updates on Saturday 01 January [sic: February] 2020, particularly where Qantas doctors stated to us that the virus could not be contracted from surfaces, and that you had to be sleeping in a bed with a person and share utensils to contract the virus; e. The PCBU did not consult with any workers or HSRs since the Government announcements about the coronavirus on 01 February 2020. There was no information provided to workers on the morning of Sunday 02 January 2020, and management did not attempt to arrange consultation or talk to us about the updates, which would have been considered reasonably practicable at the time. I thought that Mr Allworth might have called me to talk to me about organising consultation with workers that morning, or to talk to me about the Government updates from the new announcements with the coronavirus. I was stunned that I received a call from the PCBU, to question the information I was giving to workers, as a HSR, rather than to discuss the updates on the coronavirus. Mr Allworth did not mention any updates on the safety situation whatsoever and did not at any time tell me or re-assure me that working on the flights was safe and that he was organising some consultation with workers and HSRs on the shifting medical advice. As a HSR, I had a genuine and reasonable safety concern that workers were exposed to an immediate and imminent threat to their health and safety if they serviced the planes coming in from China that morning. Allegation 2. On 02 February 2020 at around 7:10am, I was on an aircraft and not in the meal room. I entered the meal room at around 7.30am: I had many conversations with many workers about my genuine and reasonable safety concerns, the Act, and workers' rights under the Act. Without knowing who the person is that you refer to in the allegations, I cannot confirm or deny that I had a conversation with them. I can confirm that I told numerous workers, in good faith, due to the increased risk and shifting medical advice, and due to receiving no updates or consultation from the PCBU on the shifting medical advice; I am directing you to cease unsafe work. If management questions it, please say that the HSR directed us to cease unsafe work. I said these things to workers as I had a genuine and reasonable safety concern and gave workers a direction under Section 85 of the Act. Allegation 3. As above, I had many conversations with many workers about my genuine and reasonable safety concern, the Act, and workers' rights under the Act. Without knowing who this person is that you refer to in the allegations, I cannot confirm or deny that I had a conversation with them. I can confirm that I told numerous workers, in good faith, due to the increased risk and shifting medical advice, and due to receiving no updates or consultation from the PCBU on the shifting medical advice; I am directing you to cease unsafe work. If management questions it, please say that the HSR directed us to cease unsafe work. I said these things to workers as I had a genuine and reasonable safety concern and gave workers a direction under Section 85 of the Act. Allegation 4. I do not deny that I posted comments on the Facebook group. I posted these comments, and I believe that my comments were in line with Section 84 and Section 85 of the WHS Act. I was informing workers of their right to cease unsafe work and their rights under the Act. I understand that as a HSR, talking to workers about their rights and letting them know about legislation is not unlawful. I also believe that these comments entirely reflect that my intentions were purely safety related. I had a reasonable safety concern as a HSR, and my actions were not of an 'industrial' nature. Allegation 5. I do not agree that I misrepresented any information to workers about their rights under safety legislation, or misrepresented information provided in the briefings that occurred with the PCBU. In fact, it would be impossible for me to provide misleading information to workers about PCBU briefings as information from the PCBU was not supplied to workers on the morning of Sunday 02 February 2020, regarding the shifting medical advice from the Government. The information provided in PCBU briefings on 31 January 2020 was surpassed by Government information on 01 February 2020. I gave workers directions to cease unsafe work, and informed them of their rights under the Act, as a HSR acting in good faith with a genuine and reasonable safety concern. Again, I received no information from the PCBU regarding the shifting medical advice or the status of the coronavirus to misrepresent it. Allegation 6. I deny that I was reckless or misleading in any way. I acted as a HSR in good faith with a genuine and reasonable safety concern. I believed that workers were exposed to an immediate and imminent threat to their health and safety due to the shifting medical advice on the coronavirus. I am not a safety specialist or a medical practitioner, and as a HSR, I understand that the legislation that facilitates my office, does not expect me to be. As a HSR I do not have a duty under the Act, as the PCBU does to its workers. Allegation 7. I did not attempt to incite industrial action. The Fair Work Act provides that industrial action does not include action by an employee if the action was based on a reasonable concern of the employee about an imminent risk to his or her health and safety. I believe that my safety concern was genuine and reasonable on the morning of Sunday 02 February 2020. I exercised my powers and functions as a HSR and gave directions and information to workers under Section 84 and 85 of the WHS Act, a power and function granted to me in my office as a HSR. On Sunday 02 February 2020, when I was stood down, I was informed by Ms Nicole Watts that I was being stood down because I was causing anxiety to workers by ceasing unsafe work. This was even clarified and confirmed with Ms Watts by Ms Marsic, before the meeting ended. Ms Watts confirmed to the TWU that I was being stood down for ceasing unsafe work and causing anxiety. Mr Donald Dixon, Qantas Delegate and HSR, and my support person, who attended this meeting also heard Ms Watts confirm that I was being stood down for ceasing unsafe work and causing anxiety to workers. Mr Dixon sent an email to me and the TWU shortly after I was escorted off site. Mr Dixon stated that he approached Ms Watts and Mr Michael O'Neil after the meeting, and asked them what they were doing about all of the 'anxious' workers under the PCBUs duty of care. He also asked Ms Watts and Mr O'Neil if they were sending workers home due to their anxiety. Mr Dixon informed me that Ms Watts and Mr O'Neil refused to answer his questions, instead informing Mr Dixon that there would be more allegations to come over the next few days. I do not understand why I was told I was being stood down for ceasing unsafe work, and allegedly causing anxiety to workers – a safety matter, on Sunday 02 February 2020. This would appear to be prohibited behaviour under the Act. The PCBU then released in the media that they stood me down for spreading 'misinformation' on 06 February 2020, before informing me on 07 February 2020 that allegations against me were based around misrepresenting information and inciting industrial action. The allegation letter makes reference to my actions, comments and conversations, and they were all based around safety. I would also like to point out that no work actually ceased on 02 February 2020. Allegation 8. Under the WHS Act, I do not need to be 'authorised' by the PCBU to give a direction to workers to cease unsafe work under Section 85, as a HSR. There is nothing in the legislation that states I need authority from the PCBU to give this direction to workers in my work group. Footage. I attended the PCBUs premises on Wednesday 12 February 2020 with Mr Ho Kei Lau, Lead Aviation Official and Legal Officer, TWU, and with Mr Donald Dixon, Qantas HSR and TWU Delegate. The footage was uncoordinated, and showed me talking to workers. I am not aware of what the point of the footage was, other than to show that I was talking to workers, which I do not deny. As a HSR, I understand that I am able to talk to workers about safety. I would appreciate it if we could have a discussion about what the purposes of this footage is as it does not show me participating in any unlawful activity. Potential Breaches. The Act does not allow HSR functions and powers be eroded due to company policy or procedures, essentially contracting them out. I do not believe that I breached any standards in the standards of conduct policy. Other [Ten paragraphs omitted] I would also like to take this opportunity to inform you that it is unlawful to discriminate against a HSR. It is unlawful to engage in prohibited behaviour under the WHS Act, which includes, but is not limited to: a. Standing down a worker for acting on safety; b. Causing detriment to a worker's employment for acting on safety; c. Trying to coerce a worker in to not acting on safety; and d. Misrepresenting a worker's rights under the WHS Act. For example, telling a worker they are not able to contact the Regulator during an investigation. There are serious penalties for a PCBU and individuals who engage in prohibited behaviour under the Act. It appears to date, that every time I have exercised a power of function under the Act as a HSR, that I am punished by the PCBU. This includes, but is not limited to; standing me down on the same day that the Regulator upheld a provisional improvement notice (PIN), issuing me with allegations that were 'substantiated' not on evidence, but on 'probability', a month after the situation occurred, being moved from my area due to raising PPE concerns, being moved from my work group after conducting risk assessments and issuing PINs to the PCBU. It also appears that I am accused of engaging industrial disobedience every time I exercise my powers or functions as a HSR - as a way for the PCBU to navigate some punishment for raising safety concerns, rather than working together on safety, and accepting that I have powers and functions as a HSR under safety. It was a dream for me and quite an achievement to secure employment at the airport. I always wanted to work in aviation, particularly for a brand such as Qantas, and its other groups, due to the reputation the company has. I want to return to my job at Fleet Presentation and ask the PCBU to please stop punishing me for having genuine and reasonable safety concerns, and holding office as a HSR. It is with this in mind, and my response to the Letter of Allegations, that I request that the PCBU reinstate me in my role in fleet presentation. Sincerely Theocharis (Theo) Seremetidis [Signature]" 3 March 2020 1. On 3 March 2020 Ms Alba sent an email to Ms Marsic of the TWU, with a copy to Mr Seremetidis (PX 2, Tab 106). Ms Alba said that she was considering the matters raised in the written response from Mr Seremetidis and she asked for further information. The further information was: "1. In relation to the 'shifting medical advice' referred to throughout the Written response, I acknowledge and thank Theo for providing a link to the New England Journal of Medicine article dated 30 January 2020. However, I note that there is no hard copy or electronic link provided to the "NSW Government" announcement referred to in the Written Response which Theo states he found on 1 February 2020 (please refer to paragraph 5 on page 3 of the Written Response). Could you please provide me with a copy of the NSW Government announcement, and details of how and when the announcement was accessed by Theo? This will assist me in considering all of the relevant information relating to Theo's Written Response. 2. Further, in the second paragraph on page 10 of the Written Response, Theo refers to past occasions when he has exercised a power or function under the Work Health and Safety Act 2011 (NSW) when he claims he has been 'punished by the PCBU'. Could you please provide me with further details of those past claims/incidents, including but not limited to: • Date/s when he was allegedly stood down when the Regulator upheld a PIN that 'same day' – please provide details of the particular PIN in question; • Date/s and what were the PPE concerns Theo says he has raised and what work group was he moved from; and • Date/s and what particular risk assessment/s did Theo conduct, what PINs did he issue and what work group was he moved from." 4 March 2020 1. On 4 March 2020 Ms Marsic sent an email replying to Ms Alba. 24 March 2020 1. Mr Seremetidis was notified on 24 March 2020 that he would be stood down from 1 April 2020 due to the COVID-19 pandemic (PX 1, Tab 5, par 52). 30 March 2020 1. On 30 March 2020 Mr Seremetidis was advised that the investigation would be put on hold until he was no longer stood down due to COVID-19 (PX 1, Tab 5, par 53). 2 February 2021 1. On 2 February 2021 QGS terminated the employment of Mr Seremetidis due to redundancy (PX 1, Tab 5, par 54). 2. On 2 February 2021 Ms Alba sent a letter to Mr Seremetidis saying that because the employment of Mr Seremetidis was ending due to the outsourcing of ground operations at Australian airports, QGS would not be taking any further steps in relation to the investigation (DX 2). Proceedings 2021/284164 : The "Directions" Summons re 2 February 2020 1. In proceedings 2021/284164 the Amended Summons alleges in par 8 that on 2 February 2020 Mr Seremetidis, in his capacity as a HSR, directed workers in his workgroup to cease unsafe work under s 85 of the WHS Act, in that he directed those workers to cease the work of cleaning and servicing planes arriving from China. Was there Discriminatory Conduct by QGS? 1. In par 9 of the Amended Summons SafeWork pleaded that on 2 February 2020 QGS stood down Mr Seremetidis from his employment and he was directed not to attend work until an investigation was completed by QGS. This was established by the evidence and was not in dispute. 2. In par 10 of the Amended Summons SafeWork pleaded that in standing down Mr Seremetidis, QGS altered the position of Mr Seremetidis to his detriment in that he no longer had access to paid overtime or the workplace generally. These facts were established by the evidence and were not in dispute. They satisfy that part of the definition of "discriminatory conduct" contained in s 105(1)(a)(iv). This provides that a person engages in discriminatory conduct if the person alters the position of a worker to the worker's detriment. Did Mr Seremetidis Exercise a Power under the WHS Act? 1. QGS has disputed whether Mr Seremetidis did give directions under s 85 of the WHS Act. Its primary submission is that certain essential features in s 85 had not been established by the evidence. 2. Paragraph 11 of the Amended Summons in proceedings 2021/284164 pleads: "The dominant reason for standing down Mr Seremetidis from his employment was a prohibited reason, because Mr Seremetidis had exercised a power or performed a function as a HSR by directing workers to cease unsafe work under s 85 of the Act." 1. Clearly the prosecution relies upon s 106(c) of the WHS Act, which provides that conduct referred to in s 105 is engaged in for a prohibited reason if it is engaged in because 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". 2. The provisions in s 85 of the WHS Act relevant to this issue are as follows: "85 Health and safety representative may direct that unsafe work cease (1) A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. (2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after— (a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work, and (b) attempting to resolve the matter as an issue under Division 5 of this Part." 1. Senior Counsel for the prosecutor disavowed any reliance upon s 85(3) of the WHS Act which in effect excuses a HSR from his or her obligation to consult before giving a direction to cease work. There was also no issue that Mr Seremetidis was not qualified to give a direction under s 85 because he did not satisfy the requirements of s 85(6). 2. The issues in dispute between the parties in relation to the directions given by Mr Seremetidis on 2 February 2020 were: 1. whether Mr Seremetidis had a reasonable concern that to carry out the work 2. would expose the worker to a serious risk to the worker's health or safety 3. emanating from an immediate or imminent exposure to a hazard; and 4. whether Mr Seremetidis was in a position to give a direction to cease work because there had not been compliance with the provisions of s 85(2) which required consultation and attempting to resolve the matter. 1. QGS put each of these elements of s 85 of the WHS Act in issue, and its ultimate submission was that the requirements of s 85 were not met and the directions issued by Mr Seremetidis "were not authorised by the WHS Act" (MFI 41, par 90). Reasonable Concern 1. Section 85(1) of the WHS Act requires the HSR to hold a "reasonable concern" that to carry out the work would expose the worker to a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard. The written submissions for QGS set out par 344 from the Explanatory Memorandum for the WHS Bill. This says: "For this entitlement to apply, it will not be sufficient for a worker to simply assert that their action is based on a reasonable concern about a serious and immediate of imminent risk to his or her safety. A 'reasonable concern' for health or safety can only be a concern which is both reasonably held and which provides a reasonable or rational basis for the worker's action. A concern may be reasonable if it is not fanciful, illogical or irrational." 1. It is not necessary for the prosecutor to prove the actual existence of the risk in order to establish that Mr Seremetidis held a "reasonable concern". For this proposition the prosecutor cited Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092; (2009) 189 IR 165 at [111]. In that paragraph Justice Gilmour of the Federal Court of Australia referred to an earlier decision concerning whether a strike was based on a reasonable concern for the health and safety of employees. The relevant matters in deciding whether there is a reasonable concern were said to be: "(a) Whether it is a 'reasonable' concern involves an objective assessment of the nature of that concern; (b) A concern may be reasonable so long as it is not fanciful, illogical or irrational at the time the concern arises, without the benefit of hindsight and the knowledge of whether a real risk does in fact exist; (c) There is no need to establish that an actual risk existed at the time; (d) The reasonableness must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved at the relevant time; (e) The reasonable concern must continue during all times at the relevant industrial action is occurring; and (f) Previous incidents, occurrences or beliefs may be relevant to a basis for a concern for health and safety in the circumstances." 1. Justice Gilmour said at [112]: "Accordingly the issue is not whether certain matters did in fact constitute a risk to health or safety, but rather whether any employee reasonably held a concern about an imminent risk to the health or safety." 1. The prosecutor set out the evidence upon which it relied to show that Mr Seremetidis had a reasonable concern in MFI 39 par 312 as follows: "312. The evidence shows that Mr Seremetidis had a reasonable basis for his concern that carrying out the work on flights arriving from China would expose a worker to a serious risk emanating from an immediate or imminent exposure to a hazard: (a) From his email correspondence to QGS in the days leading up to 2 February 2020, it is clear that Mr Seremetidis was clearly concerned that QGS was not adequately assessing this risk, or providing suitable PPE for the workers carrying out the cleaning work. (b) Despite his repeated requests, Mr Seremetidis was not provided with the risk assessment relied on by the defendant and Qantas to assess the risk as "extremely low". (c) Nor was Mr Seremetidis provided with any evidence from the defendant that workers or HSRs had been consulted on the risk assessment. (d) The concerns held by Mr Seremetidis was increased when the Australian Government announced on the evening of 1 February 2020 that it was closing the border with China. (e) His concerns were also increased by the information he obtained from the New England Journal of Medicine on 1 February 2020. (f) His concerns were increased by the Department of Health Australian Government advice that the virus could be contracted from surfaces, contrary to the information he had previously been given by Qantas Medical. (g) The concerns held by Mr Seremetidis were shared by his co-workers, and increasingly so by the morning of 2 February 2020. (h) Mr Seremetidis was aware from his discussions with his co-workers that many of them lived with persons who were potentially very vulnerable to the virus, including babies, elderly persons and people with chronic conditions. (i) Mr Seremetidis was concerned about the psychological impact on the workers in his work group of the risk of contracting the virus through cleaning aircraft from China, and also the psychological impact on the workers of the potential for them passing on the virus to vulnerable members of their family. (j) On the morning of 2 February 2020, there was a reasonable basis for Mr Seremetidis to believe that a worker would be exposed to a serious risk emanating from an immediate or imminent exposure to a hazard, in that the two aircraft from China were due to arrive that day and touching surfaces in those aircraft was unavoidable for the workers assigned to clean and service them." 1. In written submissions QGS pointed out that when Mr Seremetidis left work on 31 January 2020 he had not issued a direction to cease cleaning the planes coming from China and he had put off a proposed meeting to discuss the Coronavirus until after the weekend. When Mr Seremetidis was asked in cross-examination for his reason for issuing the direction on the morning of 2 February 2020 he said that it was because of "the increased risk and based on last night's announcement from the government about closing the border" (Tcpt 313/2). 2. When Mr Seremetidis arrived on the morning of 2 February 2020 he did not look at The Terminal to see what information was there. He had made up his mind within the first 10 minutes of getting to work to give the direction and he was not aware of any other HSRs issuing such directions to workers (Tcpt 530/5; 536/20; 530/47; 534/40 – 535/10). 3. Mr Seremetidis understood that QGS and Qantas Group Medical had, as at 31 January 2020, described the risk as low or extremely unlikely (Tcpt 536/3). He did not raise his understanding of the government announcement with anyone from management, including any GSOT, on 2 February 2020 (PX 2, Tab 123; Tcpt 572/36-41). 4. Mr Seremetidis acknowledged that the government announcement referred to the risk to Australians as "currently very low" which was essentially the same level of risk put forward by Qantas Group Medical on 31 January 2020 (Tcpt 538/18-24). 5. QGS submitted that the briefings from Qantas Group Medical had informed Mr Seremetidis that it was unlikely that the Coronavirus could last for any significant time on surfaces, and that the material read by him on 1 February 2020 did not provide any new information over and above that issued by Qantas Group Medical (Tcpt 545/36; 557/5-15). 6. In relation to the article in the New England Journal of Medicine, QGS submitted that this article was about the German case that Dr Russell Brown had identified at the meeting on the afternoon of 31 January 2020. Mr Seremetidis accepted that the article was consistent with what he had been told by Dr Brown on that occasion (Tcpt 560/44 – 565/2). 7. The ultimate submission of QGS was that it could not be found that Mr Seremetidis held a reasonable concern, because: "In summary, the three items of information which Mr Seremetidis had relied on in issuing the directions on 2 February 2020 did not convey any new information to that which had been provided earlier by Qantas Medical. He did not otherwise hold any concern as at 31 January 2020 to justify the issuing of a direction and, in fact, when requested to attend for a meeting on 30 January 2020, responded by requesting that it occur after the weekend." (MFI 41, par 66) 1. For present purposes I am content to adopt the summary of the medical opinion conveyed by Dr Brown on 31 January 2020, which is to be found in par 7 under the heading "Background" in the letter of allegations (PX 2, Tab 89). That summary was as follows: "(a) The Australian Chief Medical Officer had advised that there was no reason for anyone to stop flying in and out of China based on the current information; (b) Provided advice to the effect that the Coronavirus spreads by very close contact, only from close household contact and healthcare workers providing help to those who are actively sick; (c) The wearing of masks by asymptomatic people is not connected with medical evidence; (d) There was no evidence at that stage of the Coronavirus being contracted from surfaces and that, in this regard, the Chief Medical Officer of Australia had advised there was no need for anyone to wear masks or gloves where all passengers were asymptomatic." 1. By contrast with the position on 31 January 2020, which was that there was no reason for anyone to stop flying in and out of China, the Federal Government announcement on 1 February 2020 closed the borders with China, except for Australian nationals returning from that country. Even Australian citizens had to self-isolate for 14 days after returning from China. Closing the borders to our country could well have been unique in Australia's peace time history, but at the very least it was a once in a lifetime event and a radical step to take. The position on the morning of 2 February 2020, in relation to whether or not there was any reason to stop flying in and out of China, was radically altered by the Federal Government announcement on 1 February 2020. 2. Further, a reading of the New England Journal of Medicine article contradicted the advice given on 31 January 2020 that Coronavirus spreads by very close contact only from close household contact and health care workers providing help to those who are actively sick. The case in Munich was one of asymptomatic transmission, by people meeting in a business setting. It was clear from a proper reading of the article in the New England Journal of Medicine, that there could be asymptomatic transmission. 3. Further, if the advice given on 31 January 2020 was that there was no evidence that Coronavirus could be contracted from surfaces, that was contradicted by the statement in the Department of Health document headed "Novel coronavirus (2019-nCoV)" (PX 13) that the Coronavirus is most likely to spread from person to person through, inter alia, "touching objects or surfaces (such as door knobs or tables) contaminated from a cough or sneeze from a person with a confirmed infection, and then touching your mouth or face". 4. While the risk may have been described, both by Qantas, and in other material, as "low" or "unlikely" such descriptors are entirely subjective and of little comfort to a person required to expose themselves to the risk, in this case by carrying out the cleaning of planes arriving from China. Qantas itself had recognised that there was a risk, however it was characterised, by giving safety briefings to all crew assigned to clean planes from China and stressing the need for additional hygiene measures to be taken when carrying out this work. 5. There was new information in the material obtained by Mr Seremetidis on 1 February 2020, which altered the position put forward by Dr Brown in the meeting on 31 January 2020. The shutting of the border with China alone was a dramatic and radical step illustrating the Federal Government's view of the risk posed to Australia if the virus was allowed to spread unchecked into the country. Besides closing the border, the Federal Government raised the travel advice to Australians for all of mainland China to Level Four being "do not travel". The government was providing 500,000 masks for airport and port staff and arriving passengers. To that point Qantas, based on the existing medical advice, had been saying that masks were not necessary. The Federal Government was now saying, in effect, that they were. 6. I find that Mr Seremetidis held a concern which was reasonable that cleaning planes arriving from China posed a health risk to workers. From the perspective of an ordinary and reasonable person in the position of Mr Seremetidis, and taking into account the course of events up until 2 February 2020, his concern was neither fanciful, illogical or irrational. I find that it was reasonable. Thus, one of the elements for the exercise of a s 85 power has been established by the evidence. Exposure To Serious Risk 1. In its written submissions QGS drew attention to the consideration of the phrase "serious risk" in the Explanatory Memorandum for the WHS Bill (MFI 41, par 72). This said that while the term "serious risk" was not defined, a court had to take into account the likelihood of the risk occurring and the consequences if it did. 2. While the risk to the Australian population may have been low or unlikely, the risk to people directly exposed, several times per day, to aircraft coming from a country which was the epicentre of the Coronavirus is necessarily higher than the risk to the general population. The health updates provided daily by Qantas Group Medical make for disturbing reading, when statistics are quoted about the number of cases, the number of deaths and the countries to which the virus had spread. The step taken by the Federal Government on 1 February 2020 of closing Australia's borders to one-fifth of the people on earth demonstrates that the risk posed by Coronavirus to those exposed to it was a serious risk. 3. I find that the reasonable concern held by Mr Seremetidis was in relation to whether carrying out the work of cleaning planes arriving from China would expose the cleaners to a serious risk to their health and safety. Immediate or Imminent Exposure to a Hazard 1. In CFMMEU v Sydney International Container Terminals Pty Ltd [2020] FWC 4983 the Fair Work Commission considered the ordinary meaning of the word "imminent". It said at [217] that the word "imminent" means "likely to occur at any moment". 2. As pointed out by QGS in its submissions, the first aircraft from China was not due to arrive until 10.30am on 2 February 2020. Mr Seremetidis gave his first direction to cease work over four hours before the anticipated arrival of that aircraft. He gave the second and third directions to cease work several hours before the arrival. 3. In those circumstances QGS submitted that there was no immediate or imminent exposure to a hazard, and thus even if there was a serious risk, it was not a serious risk emanating from an immediate or imminent exposure to a hazard. 4. It must be recognised that, even though the first direction was given shortly after 6.00am, it was not a direction to stop work straight away, but a direction in futuro not to perform work which would be allocated to commence at 10.30am at the earliest. In the view of Mr Seremetidis, when a cleaning crew boarded the aircraft arriving from China, they would be exposed to an immediate or imminent hazard. Putting to one side any obligation to consult, which is dealt with below, Mr Seremetidis was in a difficult position. He had his own job to do, being allocated on short notice to service arriving aircraft. He did not know when he gave his directions which of the crews would be allocated to the China aircraft. What he was doing was giving directions to workers prospectively, who may have been allocated later in the morning to a China aircraft. His direction would not take effect until, at the earliest, a crew was assigned to the 10.30am arrival. It is deserting reality to suggest that Mr Seremetidis could only give a direction five minutes before the crew boarded the aircraft at 10.30am. As a conscientious HSR Mr Seremetidis was being proactive in giving his direction well before the arrival of the aircraft but limiting his direction to that particular aircraft and that particular risk. So far as he was concerned, once a crew was assigned, later in the morning, to the 10.30am flight, that crew would be immediately or imminently exposed to a hazard. 5. I find that it was prudent of Mr Seremetidis to give a direction to cease work, that being a direction to not carry out work when it was eventually assigned later in the morning. He would have been derelict in his duty if he said nothing until a crew was assigned. It could well have been the case that he would not have been aware of the assignment of a particular crew, as he would have been elsewhere servicing another aircraft or carrying out his standard duties at the time. That would not have left him sufficient time to speak to the assigned crew about health and safety issues, and give an appropriate direction, if he saw fit. 6. Given that the direction was one which would only take effect once there was an immediate or imminent hazard, I am of the view that this element of s 85 has been established on the evidence. Consultation – a Necessary Precursor 1. Section 85(2) of the WHS Act provides as follows: "(2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after— (a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work, and (b) attempting to resolve the matter as an issue under Division 5 of this Part." 1. SafeWork submitted (MFI 39, par 316) that Mr Seremetidis did consult with QGS about the risk of contracting the virus while servicing and cleaning aircraft arriving from China, prior to giving the directions to cease work on 2 February 2020. In particular, the submissions of SafeWork referred to the following: 1. Mr Seremetidis sent correspondence to Mr Smith, the GSOT, on 27 January 2020. 2. Mr Seremetidis attended the meeting conducted by Dr Brown on 28 January 2020. 3. There were numerous emails exchanged between Mr Seremetidis and Ms Camilleri about the matter, inter alia, requesting further information such as the risk assessment. 4. On 31 January 2020 Mr Seremetidis attended a further meeting with a representative from Qantas Group Medical. 1. QGS submitted (MFI 41, pars 32-43) as follows: 1. Consultation is required under s 85(2) "about the matter". 2. Mr Seremetidis was of the view that there was new information that he became aware of on 1 February 2020, which he said was contrary to what QGS and its medical staff had been telling the workers (PX 2, Tab 105, p 3). 3. Mr Seremetidis did not raise his understanding of the material which he discovered on 1 February 2020 with any person from QGS before he gave his first direction. Nor did he raise it before giving his second and third directions, except to indicate to Mr Allworth that it was this material that caused him to give the first direction. 4. Mr Seremetidis suggested in his oral evidence that he expected someone from QGS would consult with him, but he had an obligation as a HSR to consult. 5. There was more than adequate time for Mr Seremetidis, after arriving at work at 6.00am on 2 February 2020, to raise or attempt to raise the matter to consult with QGS. 6. Following the consultation with Mr Allworth, Mr Seremetidis made no further attempt to contact a manager or GSOT to consult concerning the new information. 1. I find as a fact that Mr Seremetidis did not consult with QGS about his new information, which he said led him to form a different view about the level of risk and its immediacy. Clearly Mr Seremetidis had arrived at work on 2 February 2020 with a formed view that to carry out the work cleaning the aircraft arriving from China would expose the workers to a serious risk emanating from an immediate or imminent exposure to hazard. That was a matter which required consultation. Mr Seremetidis was quite adamant, and the evidence supports him, in his view that the information obtained on 1 February 2020, in particular the dramatic step of the government closing the borders with China, raised a matter concerning the health and safety of workers. 2. Rather than giving his directions immediately, I find that Mr Seremetidis was under an obligation to first consult about these matters with QGS. Section 85(2) of the WHS Act makes consultation a necessary precursor to a health and safety representative giving a direction to cease work. 3. Further, I find that there was no attempt to resolve the matter as an issue under Division 5 of Part 5 of the WHS Act by discussions or by making reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the Work Health and Safety Regulation – see ss 81(1) and (2) of the WHS Act. 4. Whether there was an agreed procedure, or the default procedure applied, is a matter I do not need to determine. There was no reasonable effort to achieve a resolution by following either method. 5. Mr Seremetidis did raise his concerns and the basis for them, in his brief conversation with Mr Allworth, shortly after he gave the first direction. QGS had its own obligation to consult with the workers in relation to this new information. Such an obligation arose under s 49 and s 70(1) of the WHS Act. 6. My ultimate finding on this issue is that on the three occasions on 2 February 2020 when Mr Seremetidis issued directions to workers to cease what he regarded as unsafe work, he was not entitled to give those directions because he had not complied, or attempted to comply, with s 85(2). 7. Senior Counsel for SafeWork made it plain that the prosecutor did not rely upon the power in s 85(3) of the WHS Act to give a direction to cease work in circumstances where the risk was so serious and immediate or imminent that it was not reasonable to consult before giving the direction. This was a proper recognition of the force of the submission of QGS that there was ample time to at least initiate consultation and issue resolution prior to the first plane arriving from China. 8. I turn to consider the legal consequences of these findings. Consideration: The Directions given by Mr Seremetidis 1. It is beyond doubt that Mr Seremetidis specifically directed workers three times on the morning of 2 February 2020 to cease work which he regarded as unsafe, 2. It is also beyond doubt that Mr Seremetidis specifically stated that he was giving a direction under s 85 of the WHS Act. 3. As recited above I have accepted the submission made by QGS that because Mr Seremetidis had not consulted or attempted to resolve the issue, as required by s 85(2) of the WHS Act, he was not in a position to give a s 85 direction without compliance with s 85(2). 4. In written submissions delivered at the conclusion of the evidence the parties submitted as follows. 5. SafeWork submitted (MFI 39, par 353) that it was not necessary for the prosecution to prove that the direction was a valid exercise of the HSR's function under s 85. 6. QGS submitted as follows: 1. Because of the failure to consult, the requirement of s 85(1) was not met and the directions issued by Mr Seremetidis were not authorised by the WHS Act (MFI 41, par 90). 2. Because of the failure to engage in issue resolution, when Mr Seremetidis did issue directions to cease work on 2 February 2020, he was not performing a function, or exercising a right, as a HSR (MFI 41, par 103). 3. Section 106 did not operate in these circumstances to make the issue of the direction by Mr Seremetidis a "prohibited reason" (MFI 41, par 104). 4. As a consequence of these matters, the prosecutor has failed to make out one of the required elements of s 104(1) of the WHS Act and so the charge should be dismissed with costs. 5. A circumstance required by s 110(1)(b) has not been proven and no evidence of a prohibited reason required by s 110(1)(c) has been adduced. As a result s 110(2) is not enlivened to raise a presumption in favour of the prosecutor that the dominant reason for the discriminatory conduct was the prohibited reason alleged in the s 104 charge. 1. Neither party cited any authority for their opposing views about whether the direction to cease work had to be a valid exercise of the power under s 85 of the WHS Act. 2. The proceedings were listed for delivery of judgment on 3 November 2023. Late on 2 November 2023 the solicitors for QGS emailed my Associate to draw attention to the decision of the Federal Court of Australia delivered on 30 October 2023 in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302 (Fair Work v CFMMEU). On 3 November 2023 both parties indicated that they wished to file supplementary written submissions in relation to this case. They did so. Fair Work v CFMMEU 1. This case concerned s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI Act). Directions to cease work were given by HSRs in reliance on s 85 of the Work Health and Safety Act 2011 (Qld) (WHSQ Act). Section 85 of the WHSQ Act is in identical terms to s 85 of the WHS Act, as both are part of a unified national scheme. In the proceedings the Fair Work Ombudsman alleged that employees had engaged in "unlawful industrial action" by their failure or refusal to perform work in contravention of s 46 of the BCI Act. The respondents submitted that the stoppages were not "industrial action" within s 7 of the BCI Act because the employees were under no legal obligation to work, after directions to cease work had been given to them pursuant to s 85 of the WHSQ Act. 2. Section 46 of the BCI Act was a "Grade A civil penalty" provision. Contravention exposed the respondents to the imposition of pecuniary penalties under s 81 of the BCI Act. Thus the case did not concern a criminal prosecution. However, the consideration of the effect of an invalid s 85 direction is of assistance in the present proceedings. The applicant had submitted that a direction which is not validly made in accordance with s 85 of the WHSQ Act is ineffective to relieve an employee from their obligation to work. One of the bases for this submission was that there had not been consultation before the s 85 direction was issued. In this regard, the proceedings raised a factual issue identical to that raised in the present proceedings. The trial judge said at [223]: "The proper construction of s 85 is informed by the objects set out in s 3 of the WHSQ Act. It may be seen from s 3(1)(a) and (2), that the WHSQ Act aims, relevantly, to protect workers against harm to their health, safety and welfare. It applies the principle that workers should be given the highest level of protection from hazards and risks arising from work." 1. The trial judge said at [294] that the purpose of consultation under s 85(2) is to allow those persons with a duty to ameliorate or eliminate the serious risk, the opportunity to do so, before a direction to cease work is given. Section 85(2) requires consultation with each PCBU holding such a duty. As a fact, it was held that there was a failure by the HSRs to consult and therefore there was a failure to comply with the requirement of s 85(2) – at [297]. The applicant submitted that there could not be a valid direction where any of the conditions under s 85(1) for the exercise of the power were not met – at [332]. 2. The trial judge considered whether the employees were required to comply with the directions once they were given, even if they were invalid. This is not a factual question which arises in the present proceedings, but the analysis by Rangiah J is valuable in considering the submission made by QGS that the s 85 directions of Mr Seremetidis were invalid (because of lack of consultation) and thus they were a nullity and of no effect. 3. In considering the issue, the trial judge said: "350 Division 6 of Part 5 of the WHSQ Act provides for the protection of the health and safety of workers in circumstances involving a degree of urgency, while balancing the interests of PCBUs in not having work unduly or unnecessarily disrupted. It does so by conferring authorisation upon workers under s 84 to cease work, and a power under s 85 upon HSRs to direct workers to cease work, where the specified conditions are satisfied. Under s 50, the role of a HSR is to 'represent workers who carry out work for the business or undertaking'. The role carries substantial responsibility and confers substantial power under ss 68, 85 and 90 of the WHSQ Act. That is recognised by detailed and prescriptive provisions being made for appointment and election (ss 50-67), disqualification (ss 67A-67F), training (s 72) and meetings (ss 75-79). The role of a HSR as the workers' elected and trained representative in matters affecting their health and safety is consistent with a power in the HSR to give an authoritative instruction or command to cease work when the HSR is reasonably satisfied of the urgent circumstances described in s 85(1). 351 The power under s 85(1) cannot be regarded a power to merely give advice or make a recommendation to workers to cease work. It is self-evident that anyone could give such advice or make such a recommendation. It would be unnecessary for the legislature to enact detailed and specific provisions conferring power upon a HSR to do so. 352 This view is reinforced by s 85(3). It cannot be supposed that where, 'the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction', the HSR's power is to merely give advice to a worker to cease work. The power is to give an authoritative instruction or command to cease work. 353 Further, s 86 (which provides that if a worker stops under s 84, they must personally notify their employer of their decision) may be contrasted with s 85(5) (which requires that where the HSR gives a direction, the obligation to notify the PCBU falls on the HSR). Section 85(5) would serve no purpose if there were still a decision to be made by workers after the HSR has given a direction. 354 Another contextual matter is that s 87 provides that if a worker has ceased work under Division 6, a PCBU, 'may direct the worker to carry out suitable alternative work'. That cannot be supposed to confer a power to merely advise a worker to carry out suitable alternative work. It is ordinarily a sound rule of construction to give the same meaning to the same word appearing in different parts of a statute: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; IMM v The Queen (2016) 257 CLR 300 at [143]. 355 I am unpersuaded by the applicant's contextual arguments. Under the applicant's construction, the HSR's direction would be merely advisory, and the worker would have to make their own assessment of whether the conditions specified in s 84 of the WHSQ Act are satisfied. A fundamental purpose of having a trained HSR to represent workers in matters affecting their health and safety must be to take that kind of decision-making out of the workers' hands where urgency is involved. 356 Accordingly, the HSR's power under s 85(1) of the WHSQ Act to 'direct a worker … to cease work' is a power to give authoritative instructions or command that a worker cease work. That power implies a corresponding obligation on a worker to comply with the direction. If there were no such obligation on a worker, the direction would amount to a mere recommendation or advice, a construction which I have rejected. 357 I reject the applicant's submission that a worker is never required to comply with a direction—even an invalid one—given by a HSR under s 85(1)." 1. The trial judge then referred to the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 as follows: "361 In Project Blue Sky, the plurality held at [91]: 'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied: there is not even a ranking of relevant factors or categories to give guidance on the issue.' (Citations omitted.) 362 Accordingly, it is necessary to consider whether the legislative purpose of the WHSQ Act is to invalidate any direction that does not comply with the conditions set out in s 85(1) and (3) of that Act. 363 In Project Blue Sky, the plurality observed at [92]: 'Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition.' (Citations omitted.) 364 The plurality continued at [93]: ' … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute.' (Citations omitted.) 365 In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, Spigelman CJ observed at [40]: 'The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form.' 366 His Honour went on to state at [42] that, '[t]he second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme', noting that, in that case, a particularly relevant consideration was the point of time in the decision-making process at which the element under consideration occurs." 1. Against the background of that authority, Rangiah J said: "368 I have explained that a direction under s 85(1) to cease work is intended to be given in circumstances of urgency to protect workers against a serious risk to their health and safety. The legislative scheme envisages there will be greater urgency when a direction is given without consultation with a PCBU under s 85(3). I have concluded that that a worker is obliged to comply with a valid direction. The obligation to comply means there is no scope for the worker to second-guess the direction. Neither is a worker required to assess the circumstances and, under s 84, make their own decision. 369 These matters inform the question of whether a direction given in circumstances where it is ultimately determined that HSR's concern was not reasonable, or that the risk was not so serious and immediate or imminent that it was not reasonable to consult before giving the direction, is invalid and of no effect. In the circumstances of urgency that s 85 of the WHSQ Act is concerned with, it cannot be intended that workers will make inquiries as to whether the conditions of the section have been satisfied. It follows that the worker will often be unaware of circumstances that may give rise to non-existence of the conditions under s 85(1) and (3). 370 If a direction is invalid and of no legal effect because a condition under s 85(1) or (3) does not exist, an employee will have ceased work without authority to do so. The worker may be liable to civil action for, inter alia, a breach of s 46 of the BCI Act and breach of contract despite being bound to follow a direction that they have no control over: see also Rookes v Barnard [1963] 1 QB 623 at 682-3; [1962] 2 All ER 579 at 600; Australasian Meat Industry Employees Union v Australian Meat Holdings (1999) 93 IR 308 at [102]; Irving M, The Contract of Employment (2nd ed, LexisNexis Butterworths, 2019) at pp 498-499. 371 An anomaly would arise that the HSR giving the direction may be protected under s 66, but no corresponding protection would extend to a worker who merely complied with the direction. The serious injustice that could be caused to workers is a factor that tells against construing s 85(1) and (3) as rendering a direction invalid and of no legal effect in such circumstances: see Montreal Street Railway Company v Normandin [1917] AC 170 at 175; Accident Compensation Commission v Murphy [1988] VR 444 at 449." 1. The conclusion of the trial judge was expressed at [374] as follows: "374 In my opinion, the legislative purpose of the WHSQ Act is not to invalidate a direction on the basis that a HSR's concern was not a reasonable one, or that there was no consultation in circumstances where a risk was not so serious and immediate or imminent that it was not reasonable to consult. It is unnecessary to consider the position where workers know, or ought to know, that the conditions of s 85(1) or (3) have not been met. The applicant has not made any such allegation." Consideration 1. It is clear that as a matter of fact, both by words and actions, Mr Seremetidis was directing workers to cease unsafe work. It is also clear as a fact that the sole reason given by QGS for standing Mr Seremetidis down was because he had spoken to the workers and told them to cease unsafe work. 2. The only power of a HSR under the WHS Act to speak in that way is contained in s 85. Just because a thing done could be subject to challenge does not mean that something has not taken place. In State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Justice Gageler said at [52]: "Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a 'nullity' in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid." (citations omitted) 1. In Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 Sackville AJA referred to the quote from Kable above and said at [175]: "Despite the apparently unqualified observations of McHugh J in GJ Coles a decision affected by jurisdictional error – even a failure to comply with a 'mandatory' statutory precondition to the exercise of a power – is not necessarily devoid of legal consequences." 1. The giving of the directions by Mr Seremetidis on 2 February 2020 were things done in the purported exercise of a power conferred by law. They remained at all times "a thing in fact", to adopt the phrase of Justice Gageler. The directions given by Mr Seremetidis were capable of having legal consequences. Any worker who ceased work pursuant to a statement made by a HSR had to remain available to carry out suitable alternative work – s 86(b) of the WHS Act. The person conducting the business or undertaking could direct such a worker to carry out suitable alternative work at the same or another workplace, if that work was safe and appropriate for the worker to carry out, until the worker could resume normal duties – s 87 of the WHS Act. Further, if a worker ceased work pursuant to a direction from a HSR, such cessation did not affect the continuity of engagement of the worker for prescribed purposes – s 88 of the WHS Act. The prescribed purposes are set out in cl 24 of the Work Health and Safety Regulation 2017 (NSW). They are remuneration and promotion, as affected by seniority; superannuation benefits; leave entitlements; and any entitlement to notice of termination of the engagement. 2. Thus, the factual existence of the directions given by Mr Seremetidis, even if s 85(2) was not satisfied, had consequences for the creation or alteration of legal rights or legal obligations, both on the part of workers who were the recipients of the directions, and the person conducting the business or undertaking who could require those workers to carry out alternative work. These were consequences which "do not depend on the legal force of the thing itself". 3. It surely could not be the case that a worker who receives a direction to cease unsafe work from a HSR, and who has no means of knowing whether or not the legal precursors to the exercise of the power have been satisfied, could be penalised for ceasing work pursuant to such a direction. 4. I am reinforced in reaching this conclusion by a consideration of the reasoning of Rangiah J in Fair Work v CFMMEU, summarised above. As QGS has submitted, that decision is concerned with civil penalty provisions and not with criminal prosecutions. However, the analysis of a s 85 direction which was given without consultation, and its legal effect upon both the PCBU and the recipients of the declaration (the workers who were directed to cease unsafe work), is the very issue raised in the present proceedings, by the submission for QGS that such a direction is a nullity. The decision in Fair Work v CFMMEU is not binding on this court, but I find its reasoning on this issue persuasive. 5. Having regard to the legislative purpose of the WHS Act, the failure to consult did not invalidate the s 85 directions given by Mr Seremetidis. As the prosecutor submitted (MFI 45, par 63) the directions given on 2 February 2020 are protected under s 104 of the WHS Act from discriminatory conduct. 6. I therefore find that when, on three occasions on the morning of 2 February 2020, Mr Seremetidis gave a direction to cease unsafe work, he was giving those directions by exercising power as a HSR under s 85 of the WHS Act. 7. I further find that when it came to standing down Mr Seremetidis, QGS did so on the basis that Mr Seremetidis had given directions to cease unsafe work in his capacity as a HSR. QGS was in no way concerned at that time with whether or not Mr Seremetidis had consulted with them or attempted to resolve the health and safety matter with them. The reason given to Mr Seremetidis by Ms Watts on 2 February 2020 was not that he gave a direction which was invalid or that he was not legally empowered to give the directions. It was simply that he had in fact given the directions. 8. On 30 January 2020 Ms Camilleri had indicated her specific concerns about Mr Seremetidis contacting SafeWork and her fear that he would issue a PIN (see par 102 above). Mr Hardy was so concerned that Mr Seremetidis may raise issues about the workers who were due to clean the planes that were coming in from China, that he rang Ms Watts late in the evening on 1 February 2020 and told her to be ready go to the airport the next day, a Sunday (see par 128 above). When Mr Seremetidis gave his directions to cease unsafe work on 2 February 2020, QGS moved to stand him down, rather than consulting with Mr Seremetidis and entering into some form of issue resolution. 9. I accept the submission of SafeWork that QGS actively sidelined Mr Seremetidis (MFI 39, pars 290 and 355), firstly by keeping him in the blanket bay and cutting him off from other staff who were seeking his help, and secondly by standing him down and requiring him to leave the airport forthwith. I find that QGS saw the giving of the directions by Mr Seremetidis to cease work as a threat to the conduct of business, and in particular, a threat to the ability of QGS to clean and service aircraft and get them back in the air. 10. I find that on 2 February 2020 QGS engaged in discriminatory conduct (a matter not in dispute) and that that conduct was engaged in for a prohibited reason, as it was engaged in because Mr Seremetidis exercised a power or performed a function as a health and safety representative, a prohibited reason under s 106(c) of the WHS Act. Dominant Reason 1. As recited above, I have found that in proceedings 2021/284164 the prosecutor has proved the first two elements of the charge beyond a reasonable doubt. It has proved: 1. QGS engaged in discriminatory conduct, 2. for a prohibited reason, being conduct engaged in because Mr Seremetidis exercised a power or performed a function as a health and safety representative. 1. Section 104(2) of the WHS Act requires the reason referred to in s 106 to be the dominant reason for the discriminatory conduct. 2. Above I have found that the reason for QGS engaging in discriminatory conduct towards Mr Seremetidis, was because he exercised a power or performed a function as a health and safety representative. That was the reason given to Mr Seremetidis on the day he was stood down. 3. While the letter of allegations raised additional matters, I have found above that these were not matters which were reasons for standing Mr Seremetidis down on 2 February 2020. Rather they were an attempt (unsuccessful in my view) to find additional reasons for conduct already engaged in for a specified reason. 4. Section 110 of the WHS Act provides that the prosecution must: 1. Prove that the discriminatory conduct was engaged in – I have found this element proved beyond a reasonable doubt. 2. Prove that a circumstance referred to in s 106(a)-(j) existed at the time the discriminatory conduct was engaged in – I have found this element proved beyond a reasonable doubt. 3. Adduce evidence that the discriminatory conduct was engaged in for a prohibited reason. All of the evidence adduced in the case points to the conduct being engaged in for the prohibited reason. QGS said so on the day. Mr Seremetidis made it plain that he was directing workers to cease unsafe work in reliance upon his perception that he had a power to do so under s 85 of the WHS Act as a HSR. Thus, evidence has been adduced that the discriminatory conduct was engaged in for a prohibited reason. As Senior Counsel said in final submissions (Tcpt 1033/20): "We've never denied that we stood him down on the 2nd because Mr Seremetidis gave a direction. What we've denied is that it was a direction authorised by s 85." 1. Section 110(2) of the WHS Act provides that the reason alleged for the discriminatory conduct is presumed to be the dominant reason (a requirement of s 104(2) of the WHS Act) unless the accused proves on the balance of probabilities that the reason was not the dominant reason for the conduct. QGS did not attempt to do so and there is no evidence which would satisfy me on the balance of probabilities that the prohibited reason for the conduct was not the dominant reason. 2. I find that QGS engaged in discriminatory conduct for a prohibited reason which was the dominant reason for the conduct. Thus, all of the elements of the charge have been established beyond a reasonable doubt. Proceedings 2021/284149 : The "Issues and Concerns" Summons re 2 February 2020 1. These proceedings were brought as an alternative charge to proceedings 2021/284149 (the "Directions" Amended Summons re 2 February 2020). Since I have found the offence charged in 2021/284149 to have been established by SafeWork, the alternative or "back-up" charge will be dismissed. Proceedings 2021/284183 : The "Directions" Amended Summons re 7 February 2020 Proceedings 2021/284172 : The "Issues and Concerns" Summons re 7 February 2020 1. These two charges fail for the same reason so I will deal with them together. Did part of the Letter of Allegations constitute a Threat? 1. The two lines in the letter of allegations said by SafeWork to constitute a threat to engage in disciplinary conduct are as follows: "Theo, the Allegations are serious. If substantiated, they may result in disciplinary action being taken against you (which could include a warning or even termination of your employment)." 1. A threat may constitute discriminatory conduct by reason of s 105(2) of the WHS Act which provides: "(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to subsection (1) or threatens to organise or take that action." 1. The submissions for the prosecutor on this matter were brief and to the point. The written submissions said (MFI 39, pars 301-306) that: 1. QGS threatened to take action which would have placed Mr Seremetidis in a worse situation, in that QGS threatened to take disciplinary action against him such as a warning or even dismissal from his employment. That threat was set out in the letter of allegations dated 7 February 2020 in writing. 2. In Victorian WorkCover Authority v Patrick Stevedoring Pty Ltd [2011] VMC 62 (Patrick), it was found that a warning letter constituted a detrimental alteration of the worker's position. 3. The court should be satisfied that the statement in the letter of allegations plainly constituted a threat to dismiss Mr Seremetidis, and a threat to give him a warning. 1. On my reading of Patrick, a warning letter per se is not necessarily a threat. In that case several warning letters were issued to an employee. However, the finding that a threat was made arose from a meeting with the employee after earlier warning letters were sent concerning the employee's behaviour. At [88] the magistrate made the following finding: "I am satisfied beyond reasonable doubt that at this meeting Mr Byers said words to the effect that he felt like sacking Mr Carroll and that if he continued to undermine management his job would be on the line." 1. At [89] the magistrate said that he was satisfied that the comments constituted a threat to dismiss Mr Carroll. He said that the words must be viewed in the context of previous communications between the parties and in particular a warning letter of 11 October 2007. 2. Thus, a warning letter does not necessarily constitute a detrimental alteration of a worker's position. In Patrick there were words said which, interpreted against the background of earlier warnings by letter, constituted a threat to detrimentally deal with a worker. 3. The written submissions for the defendant (MFI 41, pars 108) pointed out that the term "threat" is defined by the Macquarie Dictionary as: "1 A declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace. 2 An indication of probable evil to come; something that gives indication of causing evil or harm. 3 A person or thing which is deemed to have a negative impact on one's fortunes." 1. The written submissions made reference to the decision in Department of Public Prosecutions (VIC) v ACME Storage Pty Ltd [2017] VSCA 90 (ACME), where the court said at [41]: "Thus, what must be proved to establish this element of the section 76 offence is that the accused intentionally made 'a declaration of an intention or determination to inflict punishment, pain or loss on someone'. The mental element, plainly enough, is the intention to make such a declaration." 1. I find that the two lines of the letter of allegations which are said to constitute a threat, do not rise to that level. Firstly, Mr Seremetidis was advised that the allegations were serious. It was necessary that this statement be made, so that the recipient of the letter would take action to respond to the allegations made. The next sentence of the two lines contains the three conditional words "if", "may" and "could". All that was said was that if the allegations were substantiated, there might be disciplinary action which might include a warning or even termination of employment. 2. Attached to the letter of allegations was a documented headed "Information for a Respondent about the Investigation Process". At the foot of the second column on the first page (PX 2, Tab 89, p 8) it was pointed out that disciplinary action "may be taken" and that a range of disciplinary options "may be available". It was said that the decision about any action would depend on a range of factors. Further, the respondent would be asked to attend a meeting to discuss the findings and any possible disciplinary action. It seems to me that this was all part of a process to afford natural justice to the person against whom the allegations were made. 3. Further, the Standards of Conduct Policy, which was an attachment to the letter of allegations (PX 2, Tab 89, p 10) said that employees who breached the Policy "may be subject to disciplinary action" – cl 3.2. Further it was pointed out in cl 12.4 of the Policy that if the complaint was substantiated, this "may" warrant formal disciplinary action up to and including dismissal. Clause 12.4(b) of the Policy required the investigation to be conducted according to the general principles of procedural fairness. 4. The two lines in the letter of allegations upon which SafeWork bases its case in relation to a "threat" are in my view not a threat and could not be construed as threat. They are nothing more than the giving of procedural fairness to the recipient of the letter, so that the recipient takes the matter seriously, knowing that if the allegations are substantiated there may be disciplinary consequences. I cannot read the two lines in the letter of allegations any other way. They are most certainly not, to adopt the words at [41] in ACME, a declaration of an intention or determination to inflict punishment. 5. Those findings mean that the two Summonses based on conduct on 7 February 2020 have not been proved by SafeWork beyond a reasonable doubt. In particular, in proceedings 2021/284183 (a "Directions" Amended Summons), the allegation is made in par 10 that: "On 7 February 2020, in addition to having already stood down Mr Seremetidis from his employment, QGS threatened to take disciplinary action against Mr Seremetidis, including a threat to issue him with a warning or to terminate his employment." 1. I find that QGS did no such thing. 2. In proceedings 2021/284172 (an "Issues and Concerns" Summons) the same pleading is made in par 10 of the Summons. Again, I find that QGS did not threaten action against Mr Seremetidis as alleged. 3. I therefore find that in those two actions, SafeWork has not established that QGS engaged in discriminatory conduct within the meaning of s 105(2) of the WHS Act. Subject to affording SafeWork an opportunity to consider stating a case to the Court of Criminal Appeal, those two charges should be dismissed. Orders 1. In proceedings 2021/284164 (the "Directions" Amended Summons in relation to 2 February 2020) the orders of the court are: 1. The elements set out in the Amended Summons have been proved beyond reasonable doubt. 2. I find the defendant Qantas Ground Services Pty Ltd guilty. 3. The matter will be listed for a Sentence Hearing on a date convenient to the parties. 4. Costs are reserved for later determination. 1. In proceedings 2021/284149 (the "Issues and Concerns" Summons in relation to 2 February 2020) the orders of the court are: 1. Summons dismissed. 2. Costs are reserved for later determination. 1. In proceedings 2021/284183 (the "Directions" Amended Summons in relation to 7 February 2020) the orders of the court are: 1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3. Costs are reserved for later determination. 4. The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. 1. In proceedings 2021/284172 (the "Issues and Concerns" Summons in relation to 7 February 2020) the orders of the court are: 1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3. Costs are reserved for later determination. 4. The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. ********** Amendments 29 February 2024 - Case title amended to add "(No. 3)" 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: 29 February 2024