By Michael Selinger
A recent decision of the Supreme Court of Victoria has the potential for employers in Victoria to face greater penalties for offences involving employees of independent contractors who are exposed to harm.
This decision also confirms a prosecutor is not restricted on the charges it chooses to bring.
On 31 October 2018, the Supreme Court of Victoria delivered a judgment upholding an appeal brought by an Inspector of WorkSafe Victoria reversing a Magistrate’s decision to dismiss a charge brought against Southern Alpine Resort Management Board.
The original prosecution, heard in September 2017, related to an incident in 2015, when a tree fell and seriously injured an employee of an independent contractor engaged by the resort.
The incident occurred when the operations manager and employee of the resort, Mr Brett Weinberg, noticed a tall eucalypt tree that had fallen close to the road.
At the time, Mr Weinberg asked two workers, Mr Graeme Weinberg and Mr Jarrod Ackerman, to have a look at the tree which they did with a third worker, Mr Christopher Neal. A decision was made by the three workers to remove the tree.
Mr Ackerman used a chainsaw to cut the tree, while the other two men positioned themselves on the road to direct traffic. After Mr Ackerman cut through the tree, it suddenly dropped down and fell on him. He was seriously injured.
Both Brett Weinberg and Graeme Weinberg were employed by the resort whereas Mr Ackerman and Mr Neal were employed by Belgravia Health and Leisure Group Pty Ltd, which was contracted by the Southern Alpine Resort Management Board to manage the resort on a day-to-day basis.
The Southern Alpine Resort Management Board was charged with two offences.
The first charge under section 21 of the Victorian Occupational Health & Safety Act (OHS Act) concerned exposing the resort’s employees to harm, whereas the second charge concerned exposing the Belgravia employees and was brought under section 23(1).
In December 2017, the Magistrate dismissed both charges.
The first charge was dismissed as the court considered that the elements of the offence had not been proved beyond reasonable doubt.
The second charge was dismissed because the court accepted a submission from the Southern Alpine Resort Management Board that the charge had wrongly been brought under section 23 of the OHS Act and that the charges, in respect of non-employees, could only be brought under section 21.
The appeal only considered the dismissal of the second charge.
After dealing with whether the dismissal itself could be appealed (and finding it could be), the primary issue before the court was whether the prosecutor was restricted from bringing a charge against the Southern Alpine Resort Management Board pursuant to section 21.
This dispute existed because the resort had successfully submitted that although section 21 talks about a duty owed by an employer to ‘employees’, that term is expressly extended in section 21 to include an independent contractor engaged by the employer and any of the independent contractor’s employees.
The Southern Alpine Resort Management Board argued that the effect of this section meant that a charge could not be brought under section 23.
In effect, the resort argued that the prosecutor had brought the wrong charge.
Court finds charges can be brought under both section 21 and 23
Section 23 provides that an employer must ensure that persons other than employees of the employer are not exposed to risks to their health & safety arising from the conduct of the undertaking of the employer.
Although the section is often used to bring charges against an employer when members of the public are affected, the section does not include an expanded definition of ‘employees’ and so on a literal reading it also applies to an independent contractor engaged by the employer and any of the independent contractor’s employees.
The Southern Alpine Resort Management Board submitted that, despite this literal reading, it could not have been the intention of parliament to allow a prosecutor to bring a charge against an employer under section 23 as well as section 21, in respect of any of the independent contractor’s employees.
The appeal court disagreed.
The court considered that there was no inconsistency between the two sections which, in the court’s view, creates separate offences, both of wide application, which can sensibly operate together and which may overlap in cases involving independent contractors.
The fact that the two offences have different elements that the prosecutor must prove did not mean that one section must be read as being subject to the other section.
As such, the court found that the magistrate had erred in dismissing the charge and sent it back to the magistrate to determine the matter.
Lessons for employers
The decision regarding the Victorian OHS Act is important as it makes clear the right of the prosecutor to charge an employer under either section 21 and section 23 in cases where an independent contractor’s employees are put at risk.
For businesses operating in Victoria, the decision also suggests that a prosecutor could, if it so chose, bring a charge under both sections at the same time for effectively the same offence.
Although this might be dealt with by a court reducing any overall penalty imposed on the business, it does mean potentially a greater exposure for businesses operating in Victoria who engage contractors, than other businesses in harmonised jurisdictions.