In the recent decision of SafeWork NSW v Qantas Ground Services Pty Ltd [2023] NSWDC 468, the NSW District Court found Qantas Ground Services Pty Ltd guilty of engaging in discriminatory conduct for a prohibited reason, contravening the Work Health and Safety Act 2011 (NSW) (WHS Act).

This decision is one of the first prosecutions of its kind, and the first in NSW.

Legislation at the federal level and in each state and territory includes provisions which are the same as, or similar to, those discussed below.

The context

Cast your mind back to the uncertain times with which we were all confronted in early 2020. The pandemic had only just begun, and the world was in a state of uncharted change.

Theo Seremetidis was employed by Qantas Ground Services Pty Ltd (QGS) in the position of Ground Crew, Fleet Presentation at Sydney International Airport. Mr Seremetidis was also the Health and Safety Representative (HSR) for the Sydney International Terminal Fleet Presentation Group for QGS. HSRs are recognised under the WHS Act and have various powers and functions under it. They can play a pivotal role in identifying and addressing WHS risks at a workplace.

Between January and February 2020, a number of workers, including Mr Seremetidis, began to raise concerns with QGS about the risk of contracting COVID-19 while cleaning and servicing aircraft arriving from China. In response, the workers were informed by the Operations Manager Fleet Presentation for Qantas that business would continue as usual and that any concerns should be raised with their supervisor.

Following the Australian Government’s 1 February 2020 decision to close borders to visitors travelling to Australia from China, Mr Seremetidis, in his capacity as HSR, issued several directions to workers informing them that they did not have to service incoming flights from China and that they had the right to cease unsafe work. The directions were issued under s.85 of the WHS Act, which gives a HSR the power to direct a worker (or workers) in a work group represented by the HSR to cease work if the HSR has a reasonable concern that carrying out the work will cause serious risk to a worker’s health or safety.

However, a few hours after exercising these powers Mr Seremetidis was stood down and ordered not to attend work pending an investigation into his conduct. QGS warned Mr Seremetidis that, if the allegations were substantiated, disciplinary action may follow.

The prosecution

In a rare prosecution by SafeWork NSW, QGS was charged with engaging in discriminatory conduct for a prohibited reason in contravention of s.104 of the WHS Act. The grounds for the prosecution were:

1. In standing him down, QGS had unlawfully altered the position of Mr Seremetidis to his detriment because he no longer had access to paid overtime or the workplace (contravening s.105(1)(a)(iv) of the WHS Act); and
2. The dominant reason for QGS's discriminatory conduct was that Mr Seremetidis had exercised a power as HSR by directing workers to cease unsafe work (contravening s.106(c) of the WHS Act).

In defending the charges, QGS argued that:

1. The requirement in s.85(1) of the WHS Act for HSRs to hold a “reasonable concern” before exercising their power had not been satisfied because:
   1. the information relied upon in issuing the directions did not convey any new information beyond that which had already been provided by QGS and Qantas Medical; and
   2. Mr Seremetidis acknowledged that the Australian Government’s announcement referred to the risk to Australians as “currently very low”;
2. Mr Seremetidis did not comply with s.85(2) of the WHS Act which requires consultation and an attempt to resolve a matter with QGS, as the person conducting the business or undertaking, before the directions were given; and
3. Therefore, as certain essential pre-conditions permitting the exercise of the power conferred by s.85 of the WHS Act had not been met, the directions issued by Mr Seremedtidis were not lawful and QGS did not, therefore, engage in any discriminatory conduct.

The outcome

The Court decided that the prosecution established beyond reasonable doubt that QGS had engaged in discriminatory conduct for a prohibited reason, and that the prohibited reason was the ‘dominant reason’ for the discriminatory conduct. QGS was therefore found guilty.

In coming to his decision, Justice Russell SC DCJ held that:

1. Mr Seremetidis’ concern about the health risks posed by servicing aircraft during the outbreak of COVID was a “reasonable concern”;
2. While Mr Seremetidis may have failed to properly consult with QGS, this did not invalidate Mr Seremetidis exercising his powers under s.85 of the WHS Act;
3. When Mr Seremetidis was stood down from his employment, the reason given by QGS was not that he gave directions that were not lawfully issued, but “simply that he had in fact given the directions”; and
4. In standing down Mr Seremetidis, QGS had “actively sidelined” him from other workers seeking his assistance - QGS saw the directions given by Mr Seremetidis as a “threat to the business and the ability of QGS to service aircrafts and get them back in the air.”
   

While a sentencing hearing date has yet to be listed, QGC faces substantial penalties of up to $500,000.

Key takeaways

• PCBUs should remember not only their duty to ensure a safe and risk-free working environment, but also the standing of HSRs under the WHS Act and the protection against discriminatory conduct given to HSRs when engaging in their work health and safety activities under the Act.

• PCBUs should ensure they consult with HSRs on WHS issues, provide up-to-date information and training on hazards in the workplace, allow HSRs to exercise their important powers lawfully, and attempt to resolve WHS matters that do arise as required under the WHS Act.

• Further, where legitimate concerns arise as to how a HSR exercises their powers, PCBUs should exercise care when addressing those concerns. It is critical for PCBUs to accurately document their concerns, and how it is said that a HSR has gone beyond their statutory powers. Any inquiry or investigation should avoid raising concerns which are not lawful, with lawful concerns being outlined precisely to avoid the risk of slippage into unlawful territory and inadvertent or perceived unlawfully discriminatory conduct.