On 17 December 2018, a criminal matter brought under the Occupational Health and Safety Act 2004 (OHS Act) was heard and determined by His Honour Judge Lyon in the County Court of Victoria, with a new record fine imposed under a little-used offence provision in the Victorian OHS Act.

The prosecution was brought under section 76 of the OHS Act. That provision prevents an employer from discriminating against an employee who raises a health and safety issue in the workplace. The charges alleged that Patrick Stevedores Holdings (Patrick) via its managers had threatened to alter the position of employees to their detriment after they raised health and safety issues in 2009.

Words uttered by a manager trying to resolve a safety issue included discouraging staff from contacting Worksafe Victoria – this resulted in the liability. In the end result, the employment conditions of the relevant employees were not actually altered and the health and safety issue was resolved relatively expeditiously.

At the time of relevant conduct, Patrick did not have a policy that dealt with conduct capable of contravening section 76 of the Act. However, in sentencing, the Court took into account that the organisation had subsequently put in place policies and training which expressly deal with discrimination against employees who raise health and safety concerns.

The decision has the capacity to affect how duty holders manage safety issues when they are raised. To be prepared, duty holders should consider whether they have policies available that manage the risk of exposure.

Details of the case

Patrick had received 800 rolls of vertical steel coils at the Port of Hastings which it was required to load onto an incoming ship. A safety issue regarding carrying the appropriate means of positioning and carrying 9 tonne vertical steel coils on a forklift was raised by the health and safety representative to the manager.

A manager was alerted about the safety issue and he produced a diagram by which he proposed that the load be placed at a particular distance from the forklift mast. The health and safety representative remained concerned about the safety aspects of this proposal. He concluded that it was unsafe to use the method that had been proposed by the manager because the weight of the load still exceeded the safe work load limit for the forklift and the tines.

A senior employee contacted the manager by telephone and reported the health and safety representative's concerns. The senior manager responded by threatening employees physically and with termination. The threats included words to the effect that the manager was going to 'get' the health and safety representative, and that he 'didn't care if [he] had to sack 1, 5, 10 or 20 workers… heads are going to roll' (Charge 1). The evidence was also that he said words to the effect that if a certain worker's 'whinging' continued the next day, then 'he can pack his bags…too'. (Charge 2).

A couple of days later, four staff approached the manager to further discuss how to load the heavy coils. When it was suggested that WorkSafe should to help decide what to do, the manager said, 'You don't want to go down that track, you'll be on a list, a list you don't want to be on', and to another employee, 'It's a list that everyone in this force is able to be on and one by one we'll put you on there if you don't do as you're told' (these statements gave rise to the remaining charges).

Following a trial, the employer was found guilty of six breaches of section 76 of the OHS Act. In sentencing, His Honour Judge Lyon imposed a fine of $475,000 and noted that:

• it must be 'made plain to employers that threats to employees which involve a form of intimidation to prevent communication with WorkSafe simply will not be tolerated';
• the concern here raised was a bona fide health and safety concern made in circumstances where the employer appreciated the issues and the circumstances in which it was raised;
• there was no suggestion that those who communicated the health and safety issues did so in anything other than a calm, civil and reasonable manner, which was borne out under cross-examination;
•  in contrast, the senior manager had made threats in an angry and aggressive tone with the intention of intimidating those to whom he spoke;
• the victim impact statement received by the court noted the lasting effect of the conduct on the health and safety representative, who said he regretted taking on the role and would not advise anyone to put their hand up to occupy such a position. The Court regarded this as a particularly serious aspect of the offending because it had the effect of stymying the legitimate role of a person occupying a position provided for by the Parliament in the OHS Act;
• the fact that ten years had passed since the offending was not a matter that was mitigating for the employer.

Industry Implications

Fines of this magnitude have typically only been imposed in prosecutions under the OHS Act that involve fatalities and incidents resulting in very serious injuries. The case has implications for how large employers, particularly in high-risk industries, manage the concerns raised about the safety of their operations.

Whilst employers regularly train managers in anti-discrimination policies and appropriate workplace behaviour, such training needs also to be directed towards ensuring that managers refrain from using language that may be perceived as threatening or which suggests negative consequences may flow to other staff when OHS matters are raised. The case affords a timely opportunity for employers to ensure that policies and training are responsive to this aspect of the regulatory environment.