WorkSafe should explain its role in increasing a small business’ OHS penalty by $50k

In June 2010, SafetyAtWorkBlog discussed the case of company director Peter Angelico and why the Director of Public Prosecutions (DPP), following a request by WorkSafe Victoria, doubled the financial penalty over an OHS breach.  Peter Angelico is currently working his way through the Victorian Civil and Administrative Tribunal (VCAT) trying to determine how the increased penalty can be justified as in “the public interest”.

The VCAT hearing is set for 7 October 2011 in Melbourne.  Angelico, the proprietor of A Bending Company, is not contesting the original judgement for he says in his applicant statement, seen by SafetyAtWorkBlog, that:

“Releasing information that can help prevent a future accident is always in the public interest. There are no winners from workplace injuries and it is vital that companies are fully aware of their obligations and publishing safety information can only assist in this process.”

Angelico would argue that small business owners, like himself, should also be provided with a more accurate cost of non-compliance with OHS legislation.  That would also be in the public interest.

Angelico launched a Freedom of Information request for documentation earlier this year seeking an explanation for WorkSafe’s public interest-based appeal.  His applicant statement includes the following questions:

• “How often are appeals requested when the party pleads guilty and fully co-operates with an investigation?
• Is there an obligation for those in the industry: lawyers, investigators, prosecutors etc. to inform companies of all the possible outcomes and therefore save on valuable court time and unnecessary legal costs?
• Has the appeal benefitted the young man who received the injury?…..
• What incentive is there for companies in similar situations to plead guilty and cooperate?
• How are appeals of this nature instigated and by whom?
• Is there a set ‘tick the box’ criteria or is it purely subjective?”

Many of these questions have merit and also increasing national relevance as many of Victoria’s OHS actions and criteria are being transposed across State boundaries to all Australian jurisdictions through the national harmonisation process.

It is understood that WorkSafe is claiming that some of the documentation is exempt from the FOI Act 1982, particularly Section 32 (1):

“A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege or client legal privilege.”

In the OHS profession “legal professional privilege” has usually been advocated for an employer following a major workplace incident and, in this situation, using the privilege seems a little counter-productive.

In December 2009, SafetyAtWorkBlog wrote that:

“To a large extent, the promotion of “LPP” (for short) contributes to the complexity of safety management and the growing perception that OHS law is primarily about “covering one’s arse” rather than preventing a recurrence of an incident.

Certainly LPP is an impediment to accountability for inept safety management.  There are similarities with political parties and governments who hide behind loose interpretations of freedom of information or through emphasising the commercial-in-confidence of public-private-partnerships.”

Applying LPP may seem to be the right legal approach but is it the right approach, particularly when the organisation applying LPP also has its own investigations impeded by LPP?  There is a legitimate reason for applying LLP but there is also a tendency, often strongly recommended by some labour lawyers, to use LPP to avoid the embarrassment of, or accountability for, a bad or unjustified decision.  This Friday, VCAT will be making a decision on the validity of WorkSafe’s argument in the Angelico case.

In the June 2010 article, we said:

“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.”

If the DPP believed the argument put forward by WorkSafe Victoria that the original financial penalty on Peter Angelico and his company was inadequate, surely the reasons for that decision should be, if not publicly accessible, made available to Peter Angelico.

Kevin Jones