What is the OHS “public interest”?

On 7 May 2010 Judge Lacava of the County Court of Victoria increased the $A25,000 fine applied to A Bending Company to $A75,000.

WorkSafe’s Acting Director for Health and Safety, Stan Krpan, said in a media release:

“The fact that the Director of Public Prosecutions [DPP] found the original penalty inadequate, and the increase in the fine on appeal, demonstrates the courts’ attitude towards health and safety offences.”

The DPP made the appeal to the County Court after a request for review of the original fine was made by WorkSafe Victoria.  According to the judge’s decision (not yet available online):

“The appeal by the Director is made pursuant to section 84 of the Magistrates’ Court Act 1989. The section gives the Director the power to appeal to this Court “if satisfied that an appeal should be brought in the public interest“.” [emphasis added]

So how was the public interest served by increasing the fine by $A50,000?

The proprietor of A Bending Company, Peter Angelico, cannot understand the rationale for Judge Lacava’s decision.  Angelico wrote the following in a letter the local newspaper, The Dandenong Star, on 22 May 2010.

“A recent decision in the County Court has highlighted an opportunity for improvement of the current WorkSafe system. My company was recently fined and convicted on two counts arising from the one incident in May 2008.

The case report from WorkSafe does not extol all the facts and is written in such a way as to paint my company in the worst possible light and fails to take into account any mitigating circumstances.

The incident occurred in May 2008 when a young employee crushed the tips of his fingers in a press which was partly caused by poor supervision on the shop floor.

As the managing director I am of course responsible, irrespective of assurances given in production meetings by members of staff whose duties include implementation of agreed OH&S policies and procedures.

The difference here is that unlike the former rock star and current Federal Environment Minister who failed to act upon OH&S dangers, I took immediate steps to prevent such an incident from occurring again and I fully co-operated with the WorkSafe investigation and pleaded guilty on behalf of the company to ensure that valuable court time was not wasted, another point acknowledged by Worksafe.

Unfortunately WorkSafe laws are black and white and don’t take into account extenuating circumstances and yes, as the managing director I am ultimately responsible and I take that responsibility to OH&S extremely seriously.

The last thing I want is for someone to get injured at work.

The culture of WorkSafe appears to be one of punishment, and not enough education.  The lesson for all business owners and directors is that you cannot trust anyone and you are at risk of paying a high price for others’ mistakes.  Responsibility for health and safety must be shared by everyone concerned in any organisation.

In over 20 years of running a manufacturing business this is the only major incident to occur, one is still one too many and the real tragedy is that a young worker has been traumatised by the incident and all the lawyers want to do is run expensive court cases and appeals seemingly for their own benefit.

I would be more than happy to pay the fine directly towards Rhys’s ongoing rehabilitation rather than make those in the legal system even wealthier than they already are.

Companies are continually being punished out of existence, and perhaps the laws could be reviewed to take into account early guilty pleas and co-operation and link that to education rather than the punitive system that we have now.

I fully understand the deterrent requirements, but can someone tell me how tripling a fine for what appear to be budgetary reasons, helps improve safety in the workplace?

The lesson was learned two years ago and increasing the fine doesn’t reduce the effectiveness of the message. It certainly doesn’t make life any easier for Rhys.

The education aspect is one that needs to be explored further and the opportunity is there to develop a set of polices (sic) that not only reward companies with good safety records but also educate and inform everyone in an organisation from the top down.”

Reading the entire decision of Judge Lacava clearly shows that he felt the fine was only a fraction of what could have been applied and that he made concessions based on the information about A Bending Company presented to the Court.  But other than a letter in the local newspaper, a couple of mentions in small newspapers that largely pick up the content of the WorkSafe media release, very few people know about the fine increase or the reasons for it.  So if the public is not overly interested or is not informed, how is an increase in the fine in the “public interest”?

Peter Angelico told SafetyAtWorkBlog that, at the original Magistrates’ Court hearing, no one, including counsel representing WorkSafe complained about the original $A25,000 fine.  It was noted that the fine was at the lower end of the scale but still within an “acceptable” range.  Clearly back at the office WorkSafe reassessed the fine and asked the DPP for its thoughts.

In his letter Angelico states that the fine increase seems to have been for “budgetary reasons”.  He believes  that the tripling of the penalty was a contributory factor in his unsuccessful tilt at preselection for the Liberal Party in a local Victorian electorate, although the Liberal Party denies this.  The electorate’s sitting member ALP incumbent Mark Dreyfus, according to one newspaper article on 18 May 2010,  said:

“…he wanted to know how Mr Angelico was endorsed by the Liberal Party in the first place, given that the decision against his company was handed down last December.”

It would seem that a fine of $A25,000 may not be as politically embarrassing as one of $A75,000.

Dreyfus’ comments seem a little unfair as another local paper details the voting figures in the preselection context in an article dated 3 March 2010 where Geoff Shaw received 36 votes to Angelico’s 12.

Judge Lacava’s rationale for increasing the fine seems sound – inaction on a known hazard, poor supervision leading to an injury in a 16-year-old worker, inadequate instruction, etc but it is easy to understand questioning how the public interest is served by having to pay an extra $A50,000 into the Court Fund.  Angelico seems to be the biggest loser in this process.  He has a conviction for an OHS breach, he is out-of-pocket $A75,000 and his desire to represent the community in Parliament is over, at least in the short-term.

As a postscript to this article and with a thematic link to an earlier blog article, it would seem that the decision of Judge Lacava could have had an even greater impact on the public interest, if the  fine increase had been directed to sources other than consolidated revenue.  SafetyAtWorkBlog asked WorkSafe Victoria if, in its discussions with the DPP, it had suggested that the increased fine be directed to a charity or safety-related activities.  It did not make the suggestion, nor did it raise this as a sentencing option in Court.

It seems to SafetyAtWorkBlog that in a case where a young worker was injured in a company that had a dysfunctional safety management system, $A50,000 could have made a positive impact on the local workforce’s awareness of operating machines with inadequate guarding.  After all, the point had already been made to Peter Angelico in December 2009 through a conviction, a $A25,000 fine and damage to his political ambitions.

Kevin Jones

reservoir, victoria, australia

9 thoughts on “What is the OHS “public interest”?”

  1. A recent decision was handed down to BHP Billiton in which a worker died and they were fined $76,000, yet my company gets fined $70,000 for a worker having the tips of three fingers crushed on appeal from the original decision of $25,000. With the obvious politicisation of Worksafe (Cath Bowtell, Worksafe Executive Office and now Labor candidate for Melbourme) the only conclusion to be drawn is that the appealing of the Magistrates court decision was politically motivated. If this is not the case, are Worksafe able to shed some light on the reason behind the appeal?

  2. Where is justice in this case when the offending forman relating to this accident is not investigated or disciplined for his negligence? Where is justice when the Factory Business operator who cooperates fully and helpfully with Worksafe Victoria is fined $25,000 for an accident that he had taked every effort to prevent and a forman disobays those preventive actions? Then were is justice when the very people that the business owner assisted, then go and appeal the fine and succeed in having the fine trippled? Why would anyone now ever assist Worksafe personal? Did worksafe concider the employees of the business and whether their, worksafe\’s, actions might distroy the empolyee jobs because the business might fail financially because of the financial load of this rediculous fine could cause to the business? Has the owner concidered closing the business down? A nd retrenching all the staff? Would that be in the community\’s interests? This witch hunt by Worksafe and the Courts is an absolute socialist invasion of the small business concerned. And it is so out of financial proportion that nobody should ever start any small business up, ever, because the synthetic risk that this case creates makes any small business totally too risky. And further why should this case stop the proprieter from trying to enter politics, and to try and rebalance these socialist forces with some sence of balance, fairness. and commonsence in our community? The community has been very heavily damaged by the Courts and Worksafe because of this case. And that says nothing about the business\’es capability to earn enough profit and pay taxes involved, and then to be able to afford to pay this outrageous fine.

  3. This is one case where my sympathies are with the employer. He makes a good case regarding the monies paid into \”General Revenue\” Yes, they could be used to relieve medical issues with the injured boy, whom Angelico personalises using his name, Rhys, and yes, the extra $50,000 could be used to enhance the safety at work, but then that would only benefit the workers, wouldn\’t it?

    1. As I think I have indicated in the article, some of the new sentencing options that are available in Australian Courts could be applied in such a way that substantial changes could occur in worker benefits and support services. These could also affect projected budgetary revenue streams but this is where the sentencing options should be carefully considered by those in and outside the legal system.

      If OHS laws and regulators are genuinely aimed at the prevention of injury and illness, should revenue from fines continue to support the middle man?

      Global charities have been pressured to ensure donations/revenue go to the intended target, should the same be expected with the revenue from OHS prosecutions? This logic has been applied to union-sponsored OHS prosecutions in New South Wales, to some controversy.

      Under the new OHS laws, unions won\’t have the same power but should the regulators not prosecute, for whatever reason, any one else can request a review of that decision. In these community-(union?)generated actions, should the person who started the prosecution make a recommendation to the Court on where they think the penalty should be spent?

  4. I thought the whole issue is that Rhys was injured and traumatised as a resuklt of the injury causing incident and Mr. Angelico admits there was a failure in his OHS system. Any fine should be apportioned 75% to the injured worker 25% to general revenue. Maybe this would reduce the cost of workers compensation to some degree.

    1. I don\’t disagree with the need to support workers but in this case, there is next to no information publicly available about the original prosecution. That decision or judgement would have provided more specific information about Rhys\’ injury and circumstances. I have heard the injuries described as both \”minor\” and a \”crush injury\” and I can\’t yet determine Rhys\’ current work or health status.

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