Cornwalls' E&IR Team News
This month we welcome two new trainees, Sally Bast and Josh
Gurgiel, to the E&IR team. Sally completed a Bachelor of
Laws/Bachelor of Arts at Monash University and undertook a seasonal
clerkship with Cornwalls back in 2008, and has reached her final
rotation before admission.
Josh completed a double degree in Commerce (Marketing)/Law at
Monash University in 2009, before embarking on a 9-month
backpacking trip around Europe and the United States. Josh
undertook a seasonal clerkship at Cornwall Stodart in December 2009
and is delighted to have joined the E&IR team as part of his
traineeship.
We are also pleased to have Tracey O'Neill providing consulting
services for us. Tracey is a highly experienced lawyer who has
practised in E&IR for over 20 years, working in both England
and Australia. Tracey's expertise includes advising on all areas of
E&IR law, litigation (including discrimination and harassment
claims), and workplace policies and procedures. She is also skilled
at conducting training and seminars for clients on various E&IR
topics.
Occupational Health and Safety Legislation Update
It would seem as though it is one step forward, two steps back
for the model Work Health and Safety (WHS)
legislation. South Australia (having been the first state to
attempt to introduce the harmonised laws) has shelved its WHS
Bill 2011, while New South Wales (having been slow on the
uptake) is now barrelling ahead.
On 5 May 2011, the new O'Farrell Coalition Government introduced
into the NSW Parliament the WHS Bill 2011 which, when
enacted, will replace the Occupational Health and Safety Act
2000 (NSW) (OHS Act) from 1 January 2012.
However, surprisingly the government has also introduced the
Occupational Health and Safety Amendment Bill 2011
(OHS Amendment Bill) to amend the current OHS Act,
so as to enact what are considered to be the 'core' changes
contained in the model legislation, including:
(a) modifying the primary duties
that require the duty holder (eg the employer) to 'ensure' the
safety, health and welfare of employees and others affected by
their operations, to duties that require the duty holder to ensure
these aspects 'so far as is reasonably practicable';
(b) changing the reverse onus of
proof - the obligation will now be on the prosecutor to prove that
the defendant did not take all reasonable steps;
(c) replacing the current deeming
provision for officers' liability - the current OHS legislation
will now include the proactive duty for officers to exercise due
diligence; and
(d) removing the union's right to
prosecute.
The government's intention is that changes (a) - (c) will take
effect from the date the amending Act is enacted (which is clearly
intended to be before 1 January 2012), and (d) will take effect on
the day the Bill was introduced (ie 5 May 2011).
Employers in NSW should be aware that they will probably be
subject to the effects of the harmonised legislation much sooner
than anticipated, and should be considering how these changes will
need to be accommodated.
Unsurprisingly the introduced changes have sparked outrage from
the unions. Both in SA, where unions are criticising the government
for its failure to get the Bill passed, and in NSW for passing it
too quickly (and denying the unions the opportunity to prosecute
for OHS breaches).
Parliament passes amendments to Sex Discrimination Act
The lower house voted in favour of the Sex and Age
Discrimination Legislation Amendment Bill 2010
(Bill) on Tuesday, giving life to the federal
government's amendments to the Sex Discrimination Act. The new
legislation extends protection from discrimination for family
responsibilities to both women and men in all areas of work;
provides greater protection from sexual harassment for workers and
students; ensures that protections from sex discrimination apply
equally to women and men; and establishes breastfeeding as a
separate ground of discrimination. It also creates the position of
Age Discrimination Commissioner in the Australian Human Rights
Commission, to commence in July. The Bill initially included
amendments to enhance protections against indirect discrimination
on family responsibility grounds, however the opposition
successfully opposed these amendments in the senate and ultimately
had them removed from the new legislation.
Administration of paid parental leave
With just four months having passed in the scheme and over
40,000 paid parental leave (PPL) applications
already made, employers should be preparing to administer the PPL
payments from 1 July 2011.
Employers will not be required to determine who is eligible for
parental leave pay. However, there are a number of employer
responsibilities that you should be aware of. Once you are notified
that you have an employee who is eligible, you will be required
to:
- provide your bank account details and your employee's usual pay
cycle details to Centrelink;
- provide the parental leave pay to the relevant employee as part
of their usual pay cycle and for the period advised by Centrelink
(when the funds have been transferred to your nominated bank
account);
- withhold tax from parental leave pay under the usual PAYG
withholding arrangements;
- include payment details in the total amounts on your employee's
annual and part-year payment summary;
- provide a record of the payment to the employee (usually a
payslip) no later than 1 working day after the pay has
been transferred; and
- keep written financial records of receipt of funds and of the
pay provided to your employee (for a minimum of seven years).
Employers may also consider registering for an AUSkey and with
the Centrelink Business Online Services in order to receive letters
and payment advices online.
There is a very good chance that at some point you will be
required to administer the PPL scheme. You can prepare yourself for
this upcoming change by ensuring you are aware of your obligations.
The E&IR team can provide you with further advice about
PPL.
Changing Employee Entitlements
In the recent case of Aiezza v Victorian Workcover
Authority, Victorian Deputy Chief Magistrate Peter Lauristen
awarded a Victorian Workcover Authority occupational hygienist
almost $30,000 in damages after she was stripped of her entitlement
to private use of a company car. Since 2000, the authority had
supplied the employee with a vehicle that could be used for both
personal and work related purposes, under the authority's 'Tools of
the Trade' (TOT) guidelines. Over the course of
her entitlement, the employee had passed up several professionally
satisfying employment opportunities due to the financial attraction
of the TOT vehicle arrangement. In April 2010, she was informed by
the employer that she was no longer eligible for such an
entitlement and consequently was forced to purchase her own
vehicle.
The authority claimed that the employee had fallen short of the
minimum level of work related use dictated by the TOT guidelines,
and therefore was no longer entitled to use the vehicle. The court
found that there had been 'widespread noncompliance with the…rule'
over the course of the entitlement period, and both the employer
and the employee continued to act against the wording of the
original contract. Therefore, the hygienist could rely on 'estoppel
by convention', because she was under the assumption that 'the
arrangement would persist for as long as she continued in that role
or, at least, a role requiring the use of a car to fulfil her work
functions'. The Magistrate ruled that to terminate such a private
use arrangement would 'do injustice to [the hygienist's] conscious
denial of employment opportunities', and ordered the Victorian
Workcover Authority to compensate the employee for vehicle running
costs until August 2017 - six years after the end of her last
vehicle's three years of expected service.
Employers should be careful to monitor the specific entitlements
offered to employees to ensure the conditions upon which the
agreements are based are complied with. A failure to adequately
supervise a benefit offered can result in the creation of an
estoppel by convention if the employee has relied on that
representation to their detriment. Unless the agreement
specifically states otherwise, a unilateral revocation of an
employee's entitlement could amount to a breach of such an
agreement. Accordingly, employers should pay careful attention to
the implementation of employee entitlements from the outset and
regularly communicate their expectations to the employees in order
to safeguard themselves from culpability should such entitlements
warrant removal.
Managing employees on sick leave
How to manage an employee absent on sick leave can be a thorny
issue for employers. A careful balance must be maintained between
the health of the employee and the business' need to know when the
employee will return to work.
The Victorian Supreme Court of Appeal recently examined this
issue in a case that should be heeded by all employers. The court
upheld a decision to award compensation to a teacher despite
finding:
(a) her injury (deterioration of a
pre-existing psychiatric condition) was the result of employment
and significant non-employment related factors; and
(b) the employer did not
deliberately intend to bully or harass the teacher when it
contacted her to enquire about her health. It was instead the
employee's perception of the contact that was important, altered as
it was by her 'paranoid view of the world'.
Facts of the case
When Ms Askwith was employed by St Mary's School
(School), she had a long history of psychiatric
ill health. Her psychiatric condition worsened while employed by
the School, resulting in time off work and her eventual inability
to work. She claimed compensation through WorkCover on the basis
that her employment was a significant contributing factor to the
deterioration of her mental health, which resulted in injury in the
course of her employment.
What did the School do that caused injury to this teacher? The
court found there was a 'factual basis' for her perception that the
School:
- made invasive and threatening telephone calls to her while on
sick leave;
- made intrusive enquiries into the state of her physical
health;
- put her under unfair strain and pressure to finalise reports on
the last day of term;
- unreasonably interfered with her attendances on her terminally
ill father; and
- engaged in various other minor matters that caused her stress
when she was unwell.
It is important to remember that an employer must take its
employees as it finds them. In this case it was irrelevant that the
above factors would not have resulted in injury to a stable and
healthy employee. It was also irrelevant that, as the judge noted,
the '...school's behaviour from a business point of view was
perfectly reasonable'. The relevant factor was that this teacher's
peculiar vulnerabilities meant the dealings she had with the School
were stressful for her and she perceived that she was being bullied
and harassed.
The School denied liability, arguing her condition was the
result of other non work factors, such as her personality, physical
illnesses and recent death of her father. While the trial judge
found these factors were significant, the employment was also found
to be a significant contributing factor to the worsening of her
condition. Accordingly, Ms Askwith was entitled to WorkCover
compensation.
Practical tips:
(a) Beware of applying a 'one method
fits all' approach in handling and contacting employees absent on
sick leave.
(b) If you are aware of the type of
illness an employee is suffering from - take this into account in
your contact with the employee.
(c) If you are struggling to
understand what is wrong with the employee - ask the employee to
consent to your contacting his/her doctors directly.
(d) Seek legal advice. Management of
employees on sick leave is an issue that arises regularly and the
consequences of getting it wrong can be time consuming and
expensive.
('Managing employees on sick leave' authored by
Clare Hudson, Cornwall Stodart)
Workplace Relations Highlights
- The controversy continues between Bendigo TAFE and Barclay
(reported by CS in 'Employer beware: the need to justify action
against union-associated employees' and 'Employer in breach of
adverse action provisions for taking prejudicial action against
"unionised" employee'). Bendigo TAFE has applied to the High Court
for special leave to appeal the Full Federal Court's ruling, which
deemed that the TAFE had taken adverse action against a unionised
employee when it disciplined him over an email he had sent to union
members at the workplace. The court is yet to set down a hearing
date.
- Comcare has released guidelines and tools for employers and
workers as part of its anti-bullying campaign. The materials are
aimed at preventing workplace bullying. You can find more
information at www.comcare.gov.au/bullying.
- The Queensland Court of Appeal has overturned a ruling relating
to an employer's duty of care to prevent sexual molestation of an
employee. The victim, Ms Sapwell, was employed as an optometry
technician and receptionist within an optometry practice, when an
elderly man sexually assaulted her in a small workroom at the back
of the practice. At first instance, the primary judge accepted that
the employer had breached its duty of care to exclude customers
from a work space not visible to the general public, and awarded
damages in the amount of $390,558.82. The Court of Appeal
unanimously overturned the decision, holding that the primary judge
had used hindsight in order to formulate the duty imposed on the
employer, and there was no evidence to warrant the conclusion that
such an attack would occur except by way of an entirely random act
of violence. The court commented on the insufficiency of any
potential practical action that could have been taken to prevent
such an attack, and ruled that there was no evidence that any
breach of duty caused the damage.