What is the OHS “public interest”?
Posted on June 1, 2010
“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.