Appeal decision handed down in May v Helicopter Resources Pty Ltd; Commonwealth of Australia v May: What does this mean for Commonwealth contractors?

Introduction

The ACT Magistrates’ Court decision in May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31 (May’s case) dated 6 December 2019 clarified that the Work Health and Safety Act 2011 (Cth) (WHS Act) can apply to entities not covered by the definition of ‘Commonwealth’ (or public authority) as a result of the operation of section 12 WHS Act. Earlier decisions concerning the Coronial Inquest preceding May’s case were discussed in our blog articles here and here.

On 10 June 2021 the Supreme Court of the ACT handed down its decision in relation to two appeals from May’s Case - the appeal by Comcare in May v Helicopter Resources Pty Ltd and the appeal by the Commonwealth in Commonwealth of Australia v May [2021] ACTSC 116 (the appeals).

Application of the WHS Act

It is clear that the WHS Act applies to the Commonwealth of Australia (the Commonwealth) where ‘Commonwealth’ is defined to mean “any person or body, other than a public authority, that is a non-corporate Commonwealth entity” within the meaning of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act). The PGPA Act defines ‘Commonwealth entity’ to include a Department. The WHS Act also applies to a public authority and an officer of the Commonwealth or a public authority.

Section 12 WHS Act provides that the WHS Act also applies to a person who is a worker carrying out work in any capacity for a business or undertaking of the Commonwealth and to a place at which work is carried out by a worker for a business or undertaking conducted by the Commonwealth or a public authority.

Background

The Commonwealth agency, Australian Antarctic Division (AAD), engaged Helicopter Resources Pty Ltd (Helicopter Resources) to provide for the supply of helicopters and helicopter pilots to the Commonwealth as logistical support for the Australian Antarctic Program in the Australian Antarctic Territory. The three charges against both the Commonwealth and Helicopter Resources arose out of three helicopter flights on 8 and 28 December 2015, and 11 January 2016. The flights occurred in Antarctica and were performed by Helicopter Resources at the request of the AAD. The purpose of the flights was to transport drums of aviation fuel to remote and unprepared sites on the West Ice Shelf for future use. On each occasion the helicopters landed and the pilots walked on the surface at the sites in order to retrieve the lines and hooks used to carry the drums. On the third occasion, on 11 January 2016, one of the pilots, Captain Wood, fell into a crevasse and remained trapped and later died from hypothermia.

Both the Commonwealth and Helicopter Resources were charged with three offences under the WHS Act in relation to their alleged failure to comply with their duties to ensure the health and safety of workers, where the failure allegedly exposed workers (the pilots) to the risk of death or serious injury.

Decision at first instance

In the initial decision of the ACT Magistrates Court, the Court held that the pilots, who were direct employees of Helicopter Resources, were ‘workers’ under the WHS Act as they were carrying out work in the Commonwealth’s undertaking at a specified place and time and were working at a place that “…was remote, unprepared and could not be characterised as under the effective control of the pilots or Helicopter Resources.”

The Court said that the WHS Act applies to ‘the Commonwealth’, ‘a place’ and ‘a worker’ in certain defined circumstances. In relation to ‘place’, the Court said that the incident site was used to store the Commonwealth’s fuel for its own purposes and the Commonwealth tasked the helicopters to transport a particular amount of fuel to that site for use in the next step of the project. The Commonwealth did not ask for a transport service to a particular destination and allowed Helicopter Resources to make “…its own arrangements to make that happen, including sourcing and caching any necessary fuel”. On that basis the Magistrate appears to have determined that the work being performed at ‘the place’ must be work for the Commonwealth’s business or undertaking rather than applying the WHS Act to a place simply because it is a place to which Commonwealth workers go, or may go, while at work.

It held that Helicopter Resources was subject to the WHS Act and rejected the argument by Helicopter Resources that the WHS Act only applied to the Commonwealth.

Nevertheless, Helicopter Resources was found not guilty of the charges. The Commonwealth was convicted of two of the three charges against it.

Impact of decision

The Supreme Court did not take issue with the Magistrates’ decision at first instance concerning the application of the WHS Act to the Commonwealth’s contractor, Helicopter Resources.

There are now at least five prosecutions on foot which have been brought by the Commonwealth Director of Public Prosecutions (CDPP) (essentially on behalf of Comcare) against corporate entities (which are not ‘non-Commonwealth licensees’) including the most recent prosecution commenced in March 2021, against International Health and Medical Services (in addition to the Department of Home Affairs) in relation to an incident at the Villawood Immigration Detention Centre.

In June 2019 a prosecution was brought against Lendlease Building Contractors Pty Ltd and two subcontractors, Bromar Nominees Pty Ltd and Kuredale Pty Ltd (Kuredale) in relation to two separate incidents that caused injuries to workers during the redevelopment of Perth’s Campbell Barracks. On 22 October 2019, Kuredale pleaded guilty and was convicted and fined $75,000. As at 30 June 2020, Comcare stated in its Annual Report that the charges against Lendlease and Bromar Nominees were continuing. At the time of writing Comcare’s 2021 Annual Report was not yet available.

In February 2019, Comcare announced that the CDPP had charged Omega Constructions Pty Ltd and Universal Reo Pty Ltd, who were subcontractors, to John Holland Group Pty Ltd, for offences against the WHS Act in relation to an incident at Perth’s NorthLink road project.  As at 30 June 2020, Comcare’s Annual Report stated that the prosecution was continuing.

It is clear from the decision in May’s case that the way in which the Commonwealth’s undertaking is defined relies on the particular factual circumstances of each matter and the questions of expertise and exercise of direction and control were crucial to the determination of the issue. A set of activities undertaken by a contractor in the course of a larger project can be part of the Commonwealth’s undertaking while other activities in that same project can be part of the contractor’s undertaking. It is also clear that both the WHS Act and a corresponding WHS Law (i.e. work health and safety laws of a State or Territory) may apply in relation to a worker or a workplace (although if convicted under one Act the person is not liable to be convicted of the same offence under the corresponding provision of the other Act in relation to the same conduct). A corresponding WHS Law does not apply to the Commonwealth or a public authority.

The intersection of the business or undertaking of contractors and subcontractors with the undertaking of the Commonwealth will require careful consideration of the roles of each in the relevant work.

Commonwealth agencies will need to develop their WHS plan (e.g. for a construction related project) and a relevant contractor management plan thereby ensuring (including through verification, consultation, co-operation and co-ordination) they are able to discharge their duties so far as is reasonably practicable and can, where appropriate, have reasonable reliance on the expertise and actions of the specialist contractors.

The appeals

The Commonwealth appealed against its convictions on two charges and Comcare appealed the acquittal of Helicopter Resources.

In the Supreme Court, his Honour Justice Elkaim said that the “…Commonwealth’s attack on the Magistrate’s conclusions acknowledged…that the approach described by his Honour was correct”. This is important as endorsing the view of the WHS Act’s application to workers (including contractors) and places. However, the issues canvassed on appeal were whether there was causation between the creation of a risk of death or serious injury and the Commonwealth and Helicopter Resource’s failure to comply with a health and safety duty in terms of adopting reasonably practicable measures.

His Honour referred to the application by Comcare to amend the Informations (the documents initiating the criminal proceeding against the Commonwealth and Helicopter Resources) prior to the hearing at first instance in order to allow the alleged reasonably practicable measures to be put as alternatives. By not allowing the amendments, Comcare was required to establish a failure on the part of the Commonwealth to have taken each of the alleged ‘reasonably practicable’ measures in the exact order in which they were alleged.

The Court set out the reasonably practicable measures alleged against the Commonwealth from the Information as follows:

“16.1 it failed to ensure that before workers were required to land a helicopter and/or walk on the ice surface at the deep field fuel cache sites, including the Incident Site, the sites had been subject to the following testing and assessment to confirm that, so far as was reasonably practicable, there were no crevasses at each site:

16.1.1 obtaining and analysing publicly available satellite imagery of the site to determine if there was evidence of crevassing and the location of the grounding line (where crevassing is likely to be more prevalent) and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step of:

16.1.2 engaging in an air task risk assessment process in respect of the site for the purposes of identifying risks of crevasses; and thereafter:

16.1.3 undertaking low-light helicopter reconnaissance by someone suitably trained to do so, such as a Field Training Officer, to inspect the site and determine if there was evidence of crevasses, including crevasses hidden by snow bridges; and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step of:

16.1.4 undertaking helicopter-crevasse probing of the site by someone suitably trained to do so such as Field Training Officers; and

16.1.5 marking out the boundaries of the area in which it was deemed safe to land and walk and beyond which would be an exclusion zone; and

16.1.6 re-doing the steps at 16.1.1 to 16.1.5 if more than two weeks had expired or if there had been a significant weather event since the last assessment. (Emphasis added)”

On appeal his Honour stated that there were “…deficiencies in the Information” and concluded that the Court at first instance “…should have found, in respect of both defendants, that the first of the measures (concerning satellite imaging) was not reasonably practicable and therefore the balance of the measures fell with it…”.

In relation to whether it was reasonably practicable for the Commonwealth to obtain and analyse publicly available satellite imagery of the site to determine if there was evidence of crevassing, his Honour found that the requirement to do this before each flight or daily “does not fit within the description of being reasonably practicable”. There was expert evidence that the ‘interpretation’ of satellite data in these circumstances would require at least graduate-level qualifications and there was no evidence to indicate that persons with the requisite qualifications, training or experience to interpret the satellite data were present within the AAD or available ‘at call’ as a standard measure before each flight.

In relation to a causation issue raised by the Commonwealth in its appeal, his Honour stated that the Court at first instance had not dealt with causation after establishing a failure to comply with a duty and that there was a gap in relation to this issue which “…would also have been fatal to the prosecution”.

His Honour approved of the decision in Carmichael v the Commonwealth of Australia (Unreported, Magistrates Court of Victoria, Magistrate Hawkins, 19 November 2020) and Magistrate Hawkins’ statement (at [98]) that:

“The relevant question on causation is whether the act or omission of the accused was a significant or substantial cause of the worker being exposed to the risk of injury. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter”.

It was contended by Helicopter Resources that the absence of any evidence of the costs (both monetary and in terms of the imposition on available resources) of the measures meant an assessment as to whether they were reasonably practicable was impossible. His Honour found the Magistrate had not comprehensively dealt with the costs issue, but did not believe this was indicative of specific error.

Ultimately, Comcare’s appeal was dismissed and the Commonwealth’s appeal allowed resulting in the Commonwealth’s convictions being quashed.