Important OHS court decisions go unreported

On 20 May 2010 a Victorian magistrate fined an employer over $A500,000 following a workplace prosecution.  Almost all of it went to charity, according to WorkSafe Victoria.

There are several issues raised by Magistrate Vandersteen’s decision:

  • Why to charity?
  • Why the particular charities?
  • Why not allocate the funds to OHS-related organisations or initiatives?
  • Why does the Magistrates’ Court not make court decisions publicly available?

The workplace incident that started this case was that in August 2008, a 40-year-old man had his arm ripped out of the socket when it became tangled in an unguarded post peeler.   He was taken to hospital by an emergency ambulance helicopter where his life was saved.

Worksafe reports in a media release that

“…the injured worker, who was originally employed by the company as a general hand, had inadequate training on the post peeler.

Workers needing to gain access to the peeler had to crouch down and pass under an unguarded operating conveyor with exposed drive chains, sprockets and rollers.”

WorkSafe prosecuted the employer, Jelfor Treated Timbers Pty Ltd, for several unspecified breaches of the OHS Act.

Magistrates have had the authority to direct penalties to charities and other parties in Victoria for some time but the discretion seems to be rarely used.  A previous case in Victoria was a penalty imposed on Leighton Contractors by County Court Judge Peter Gebhardt in May 2004 where, on top of a fine of $A325,000, the company

“…was also ordered to pay a further $90,000 to the children of deceased worker Robert Sergi, $40,000 into a training program for workers involved in bridge building, and $70,000 to charity.”

The charities were the Multiple Sclerosis Society and Cottage By The Sea.  The reasoning for these particular charities were not specified in the judgement.

In the recent Jelfor decision Magistrate Vendersteen ordered the owner of the company, Maxwell Jelleff, to

“… pay $40,000 to the Royal Children’s Hospital and $40,000 to Make-A-Wish Foundation of Australia.”

SafetyAtWorkBlog contacted the Latrobe Valley Magistrates Court to determine the reason for the donations to these two charities.  We were told such matters were not discussed and the Magistrate simply used his discretion.  This is his right and the authority is not being contested.

The question remained about the reasons behind the decision.  Apparently, Maxwell Jelleff made it known to the court that he had a large family of ten children and that one of his siblings had died of leukaemia when Jelleff was a child.  The judge decided that the two charities mentioned above would be appropriate beneficiaries.

The above content is based on information from a WorkSafe media release and some additional sketchy information but as Magistrates’ Courts in Victoria and elsewhere in Australia do not provide transcripts of all the Court’s decisions, the special circumstances of the Jelleff penalty remains unclear.

What is clear is the relevance of the $A230,000 donation to Helimed One, the emergency ambulance service that was directly involved in saving the life of the injured worker.  SafetyAtWorkBlog spoke to a representative of Helimed One who said that he was so pleasantly surprised by the donation that he did not know quite what to say.  He said such donations are rare and a meeting of the service’s auxiliary will need to be held to determine the best way of spending such a large amount.

There is a clear logic to part of a penalty going to an emergency service, particularly one in a rural location and one that is called upon in workplace emergencies.  But it can be asked why the donations from a penalty, rising from a case involving a workplace injury, were not directed also to safety initiatives as occurred in the Leightons/Sergi case in 2004 when $A40,000 was allocated to a safety training program?

From the information that is publicly available options could have included, for instance:

  • funds to provide counselling for the injured worker’s colleagues who were “sent home” at the time of the incident;
  • funds to charity nominated by the injured worker;
  • funds to an organisation that assists in rehabilitation of amputees;
  • research into guarding hazards of sawmills;
  • the production of a safety guide specifically addressing the control of plant hazards; or
  • as the incident occurred in the economically struggling Latrobe Valley, funds for several of the worker support agencies.

The decision of Magistrate Vandersteen is very important as it illustrates how Courts can benefit the community by redirecting financial penalties to social services rather than into consolidated revenue.  But it also indicates that this good work is difficult to understand and to report on without additional information.  And information from Magistrates’ Courts is subjected to restrictions that do not apply to other Courts, as shown by the link to the Leightons/Sergi judgement in the County Court above.

It should be noted that the Victorian Magistrates’ Court does release occasional decisions on its website but to date in 2010 only one Civil Judgement has been released publicly, three criminal division judgements, seven workcover division judgements and none from the industrial division.

Many OHS cases are heard in the Magistrates Courts but unless the OHS regulator produces a media release or a newspaper has a reporter sitting in the Court at that time (increasingly unlikely) there is no public reporting of the Magistrate’s decision and therefore no safety lessons for the rest of the business community.  If a legislated OHS principle is to prevent workplace incidents from recurring, the secrecy of the Magistrates’ Court is impeding the object of the OHS Act.  If penalties are expected to deter employers and employees from incorrect behaviour, then why not release details of the penalties or the decision of the Court?

The media has evolved past the capacity of being relied on by Courts to communicate the Courts’ good work.  Courts need to inform the community of their work directly, to be crass, the Courts need to self-promote.

A journalism colleague and suburban court reporter last week told SafetyAtWorkBlog that most Magistrates do not appreciate their decisions being questioned by anyone, let alone the media.  He said that, in some cases, Magistrates are more guarded in what they say in Court if they are aware of a media reporter being present.  This is juvenile behaviour that illustrates some judges are uncomfortable in their role.

Certainly there are many cases where the media has misconstrued information provided in the Courts but this is not going to be resolved by keeping information restricted.  It will be resolved by educating the media communicators so that Courts can rely on the integrity of the reporters.  With the growing variety of media outlets for information, Courts should be taking a broad and formal approach to their communication strategies otherwise the community will continue to misunderstand the justice process and allow themselves to be exploited and to miss opportunities to assert their rights.

Some Courts in Australia have realised the changing media and information needs of this century and are responding.  Many realise that although the process is risky, the benefits far outweigh the risks and those risk can be minimised by education, communication and trust.

There are important safety lessons from the action against Jelfor Treated Timbers but there are just as many lessons for the Magistrates Courts too.

Kevin Jones

reservoir, victoria, australia

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