2

[Extract from Queensland Government Industrial Gazette,

dated 16 September, 2005, Vol. 180, No.3, pages 129-130]

INDUSTRIAL COURT OF QUEENSLAND

Workplace Health and Safety Act 1995 – appeal against decision of industrial magistrate

G James Safety Glass (Qld) Pty Ltd AND Cameron Young (No. C31 of 2005)

PRESIDENT HALL 1 September 2005

DECISION

G James Safety Glass (Qld) Pty Ltd was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995. The obligation which the incorporation was said to have failed to discharge was that imposed by s. 28(1), viz the obligation to ensure the workplace health and safety of each of the employer’s workers in the conduct of the employer’s business or undertaking. A circumstance of aggravation was pleaded, viz that the worker nominated in the particulars sustained grievous bodily harm. G James Safety Glass (Qld) Pty Ltd pleaded guilty. A conviction was recorded. A penalty of $52,000 was imposed. The company was also ordered to pay professional costs in the sum of $1,250 and investigation costs of $2,747. This is an Appeal about the quantum of the fine imposed by the Industrial Magistrate.

The Industrial Magistrate imposed the fine of $52,000 because His Honour accepted a submission by the Complainant that in evaluating the past record of the Appellant, it was legitimate to aggregate the single prior conviction of the Appellant with previous convictions under the Workplace Health and Safety Act 1995 of other companies within the “group” of which the Appellant was said to be a member. The existence of the “group”, I should add, was said to be a legitimate inference from documentation showing a commonality of shareholders/directors and documentation/letterheads utilised by the Appellant. The submission of the complainant was that the objective of the Workplace Health and Safety Act 1995, viz preventing “a person’s death, injury or illness being caused by a workplace, by workplace activities or by specified high risk plant”, should not be frustrated by common law notions of “separate entity”. The same contention has been advanced upon the Appeal.

The contention is quite novel. The concept of “lifting the corporate veil” upon which the Respondent places some reliance is normally invoked to fasten liability upon persons (natural or artificial) attempting to shelter behind a corporate seal. The Respondent’s argument, by way of contrast, seeks to visit liability upon the corporation for conduct engaged in by its controllers and/or associates. However, in my view, the difficulty with the Respondent’s argument lies not in its novelty but in the nature of the Workplace Health and Safety Act 1995. When read with s. 181B of the Penalties and Sentences Act 1992 it provides for the imposition of very heavy penalties upon corporations without the benefit of a trial by jury, with a diminished doctrine of mens rea and with much reversal of proof. It should not be read expansively, compare Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 QdR 518 at 539 and Wesche v Vancrete Pty Ltd (2005) 178 QGIG 150 at 150. I notice also that s. 167 of the Workplace Health and Safety Act 1995 goes some way towards achieving the outcome which the Respondent presses as desirable by permitting offences committed by a corporation to be laid at the door of the corporation’s executive officers. I notice also the submission of the Respondent that s. 10 of the Workplace Health and Safety Act 1995 would permit visitation of liability both upon the “common law” corporate employer and upon the holding company. Notwithstanding the unusual definition of “employer” at s. 10, I suspect (without deciding) that arguments about the penal nature of the Act would ultimately frustrate that submission. But if the submission is correct, it is a further reason for refraining from adopting the “aggregation” argument. On the Respondent’s submission the “group” situation might be met by bringing prosecutions against the holding company which, if convicted, would over time accumulate a significant adverse safety history. In any event, it is not the role of this Court to enlarge the scope of penal statutes by broad and beneficial construction.

I allow the Appeal.

I remit the matter to the Industrial Magistrate to be heard and determined according to law.

There is no power to make an order about the costs of this appeal. There may, however, be issues about the costs of the proceedings at first instance. For that reason, I reserve all questions as to costs. If it is necessary to take submissions upon the matter of costs, submissions will be taken in writing.

Dated 1 September 2005.

D.R. HALL, President.
Released: 1 September 2005 / Appearances:
Mr D. Murphy instructed by Mr C. F. Ban (In-house Solicitor) for the Appellant.
Ms J. Cameron directly instructed by Division of Workplace Health and Safety for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2005.