In May 2013 Fiona Austin (@upfrontfi) a lawyer with the Australian law firm, Herbert Smith Freehills (HSF), tweeted:
“Great win in the Supreme Court! No more naming and shaming for health and safety offenders in Queensland”
The Supreme Court decision is an appalling situation over which OHS professionals and regulators should be outraged.
Austin and other HSF lawyers authored a longer article on the case and totally miss the point of why OHS offenders should be named. Shaming of offenders is a different matter.
The article explains how a decision under the Penalties and Sentences Act 1992 (Qld) may stop the OHS regulator in Queensland, Work Health and Safety Queensland, from listing the names of offenders on its website.
“Herbert Smith Freehills acted for the Applicant arguing that the Prosecution List website publication amounted to a permanent record and was contrary to the Act. Conversely, Workplace Health and Safety Queensland argued that the publication was intended to be an information sharing process to raise awareness of work health and safety laws which was temporary in nature being intended to appear for only five years.”
“There are many individuals and corporations, convicted in Queensland of a work health and safety offence with an order that ‘no conviction be recorded’. Each of these parties can now require that the regulator remove their identifying details from any publication.”
A major purpose of OHS regulators is to raise awareness of the consequences of breaching OHS law with the intention that this knowledge may change the behaviour of employers and workers to workplace safety. The public is already at a disadvantage by decisions in the Magistrate’s Courts not being publicly available. The Queensland Supreme Court decision is a further reduction in the “state of knowledge” of the consequences of non-compliance.
State of Knowledge is a crucial element in determining what is “reasonably practicable” in controlling hazards at work. For instance, WorkSafe Victoria writes that
“Knowledge about the hazard or risk, or any ways of eliminating or reducing the hazard or risk, must be determined objectively by reference to what the person concerned actually knows and what a reasonable person in the duty-holder’s position who is required to comply with the same duty should know.
What a person knows or reasonably ought to know is commonly referred to as the state of knowledge.” (page 3)
In a recently released report on safety leadership ACE Group wrote that knowledge of corporate OHS activity and failures is important in checking the backgrounds of contractors.
“Companies routinely pre-qualify subcontractors for experience, qualification and financial strength, but safety history and performance should also be a criteria. To evaluate subcontractor safety performance, companies should review their experience modification rates, their Bureau of Labor Statistics recordable and lost time incident rates, OSHA citation record and their overall safety culture and procedures. The pre-qualification of subcontractors should not stop with safety history and performance. It should include a review of the subcontractor’s own safety culture and how the company incorporates safety into its day-to-day operation.” (page 3)
The Queensland Supreme Court decision, over which Fiona Austin is so pleased, would limit access to important information on the OHS credentials of tenderers and contractors. This is likely to also limit the effectiveness of due diligence obligations in recent Work Health and Safety laws.
I can understand a lawyer being happy with a “win” for their client but Fiona Austin’s celebratory tweet implies a shortsighted understanding of that win’s potential impact on OHS laws, safety management, and contractual obligations; but tweets can often lead to misinterpretation.
Work Health and Safety Queensland must take the issue further through an appeal to a higher court as the Supreme Court decision is a major threat to the OHS state of knowledge and a major impediment to Australian businesses knowing the consequences of non-compliance with OHS laws.
Here is the actual decision in
■ DHG v State of Queensland (represented by the Department of Justice and Attorney-General) [2013] QSC 89 – http://bit.ly/16sntQu
Which is the decision of the Supreme Court that the Defendant in the case should not be named on the WorkSafe website
Here is the summary of the case as it now stands on the Qld WorkSafe website – all relevant facts are given but not the defendant\’s name. It is apparent from this report that the Defendant was an individual, i.e. not a corporate entity and he was charged with failing to meet his duty as an officer of a company (Note this was under the 1995 Act NOT the WHS Act 2011).
■ See Workplace Health and Safety Qld here: http://bit.ly/135AlHx
Continuing to \”work backwards\” based on some of the facts gleamed from the case and summary noted above I believe I have identified the related case in which the company was prosecuted, that is the company of which the anonymous Mr X was an officer:
The company, Bauer Foundations pleaded guilty before an Industrial Magistrate and was fined $200,000 –
It appealed against the severity of the penalty to the President of the Industrial Court and that appeal was declined.
It then appealed to the Supreme Court where it was again unsuccessful.
■ Summary of the prosecution of Bauer Foundations Australia Pty Ltd can be found here in a media release from the Department of Justice and Attorney General: http://bit.ly/12k1LMZ
■ An alternative summary of the appeal to the President of the Industrial Court from WorkPlace Info is here – http://bit.ly/114MQyO
■ The Supreme Court Appeal decision is here: http://bit.ly/114Nj3V
■ Reported decision in the appeal by Bauer Foundations Australia Pty Ltd against the fine imposed on it: http://bit.ly/114KmAk
Bauer Foundations Australia Pty Ltd is part of the Bauer Asia Pacific Region which is in turn a subsidiary of BAUER Spezialtiefbau GmbH (BST) and its web site proclaims that it is a world leader in advanced foundation technology. It further states that the BST group operates in over 40 countries throughout the world. The Bauer Asia Pacific Region includes Malaysia, Hong Kong, Singapore, Thailand, Philippines, Indonesia, Vietnam, New Zealand and Australia (see web site – http://bit.ly/12k2xcS ) .
NOW – the irony of al this is that while X has not been identified the tweet from Fiona Austin and Kevin\’s highlighting of the issue has meant that through Kevin\’s Safety at Work Blog, and the posting of Kevin\’s article on a range of LinkedIn OHS sites and a further article on the case by Ms Austin\’s colleagues at Herbert Smith Freehills, means that probably in excess of 20,000 OHS professionals are now aware of this case and Bauer\’s fatality in 2009. If I was the client I would not be very happy about that tweet and that CCH article !
This afternoon, a spokesperson for WHSQ advised me that:
\”The department has decided not to appeal the decision on legal grounds and is now considering other options to ensure the community can continue to be informed of such matters in the public interest.\”
WOW Kevin, I can\’t believe this actually got passed!!
Seems that personnel within Herbert Smith Freehills have differing views as to the value of WHS related prosecution information when one compares the comments of one senior associate in the February 11, 2013 SafetyAtWorkBlog to the reasoning contained in the May 16, 2013 report/article.
This is a decision that I find both puzzling and disturbing.
Firstly for justice to be done, it must be seen to be done. The court process is an open one where the proceedings and results are open to the public, and need to be, especially where safety is at stake.
It\’s worrying enough that the court itself in Queensland apparently does not publish its decisions, but to then deny the regulator the right to publish the results of its prosecution activities is simply staggering.
As a former journalist and later media adviser to SafeWork SA, I became acutely aware of the deterrent value that publicity from prosecutions had in the public sphere, and many inspectors told me how they were able to use my news releases on successful prosecutions to successfully convince wavering employers of the consequences of non-compliance.
What is not clear is what effect the decision has on media who may report the case. Does it mean the media can report the matter but the regulator can not? What an absurd state of affairs, if so.
Lastly, while I understand Ms Austin is a lawyer, she broke one of the cardinal rules of good public relations: don\’t become the story!
The judgement reveals that the firm involved pleaded guilty to breaching the safety legislation in place at the time resulting in an employee being killed. This is not a trivial matter!
In my opinion, the issue is not so much the inability of the regulator to publish the name of those who have been prosecuted because the magistrate has elected not to record a conviction but why this option is available in the first place. What are the arguments supporting a decision not to record a conviction against an employer whose safety system has faikled to the extent that someone died.
The Supreme court is upholding the law and it\’s the law that needs to be changed.
I do hope the regulator challenges this decision and decides in the best interest of the COMMUNITY. Disgraceful
This is an interesting decision. The naming of offenders is a reasonable form of letting companies and people know that there are consequences for not complying with WPH&S laws. Work Health and Safety Queensland spend a lot of time and money on seminars, advertising and promotions making sure that people know and understand their responsibilities. they are proactive not reactive like transport departments.
I certainly hope that WPH&S Queensland do take this decision to a higher court. Fiona Watson definitely does not understand the number and gravity of proper safety. there are plenty of businesses out there who do all the safety inductions, supply all the gear etc and don\’t apply the rules. This is also prevalent in the transport sector with \”Chain of Responsibility\” concept under the Law Enforcement Act.
I don\’t understand why information on prosecutions that have had their identifying details is a problem? The OHS information is still there.