E&IR at a glance
- Eric Abetz was appointed as the new federal Minister for
Employment and will oversee occupational health and safety and
industrial relations laws. Brendan O'Connor was also appointed as
the new federal Shadow Minister for Employment and Workplace
Relations.
- The Australian Securities and Investments Commission
(ASIC) announced that company directors with a
history of failed companies may be under surveillance in an effort
to crack-down on phoenix companies. ASIC says it plans to remove
directors who have been involved in two or more failed companies.
The surveillance program will focus on the building and
construction, labour hire, transport, security and cleaning
industries.
- Following the public comment period for the second draft of the
bullying code, Safe Work Australia (SWA) has
confirmed it is unlikely to proceed with the model Code of Practice
on workplace bullying and will almost certainly replace it with a
workplace guide on bullying. Meanwhile, SWA Codes of Practice on
excavation work and managing risks of plant have been released, and
a new Code of Practice on the storage and handling of dangerous
goods has taken effect in Victoria.
- SafeWork SA published an alert encouraging employers or
officials at the workplace to require proof of identity and check
the credentials of any unknown person accessing the workplace after
two people attended a South Australian construction site pretending
to be SafeWork SA inspectors.
- In Queensland, a number of WHS Regulations and the transitional
arrangements (due to expire at the end of this year) are likely to
be further delayed/extended until 31 December 2014.
- Following Geelong Football Club's endorsement of the program,
the Victorian government is encouraging businesses to sign up to
its 'Healthy Together Achievement Program'. The program offers
practical advice to help organisations create healthier workplaces.
Further details can be found at http://www.achievementprogram.healthytogether.vic.gov.au/
- The NSW government has introduced legislation to effectively
address, among other things, the loophole concerning whether the
District Court has jurisdiction to hear WHS prosecutions, and has
confirmed that it can hear the disputes (this issue has been
holding up WHS prosecutions in NSW for months).
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Each October is Safe Work month. Various safety awards were
issued throughout the month. However, as Safe Work month concluded,
we were reminded that 140 people have been killed at work across
Australia since the start of this year.
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Just like the chandelier, the motel sex case comes unstuck
The High Court has overturned the controversial decision of the
Full Court of the Federal Court of Australia to award compensation
to a commonwealth government employee who was injured while having
sex in a motel she was staying in during a two-day work trip to
regional New South Wales.
Facts
The employee had stayed overnight at a local motel booked by her
employer. While at the motel, she had engaged in sexual intercourse
with an acquaintance, during which a light-fitting above her bed
was pulled down, striking the employee and causing her physical
injuries and a subsequent psychological injury. The employee sought
compensation, arguing that her injuries occurred 'in the course of'
her employment.
Earlier decisions
As previously reported in our September 2011 newsletter (see:
/sharing-knowledge/legal-updates/eir-september-2011-newsletter.aspx),
the Administrative Appeals Tribunal (AAT) held
that the employee's injuries were unrelated to her employment and
that she was not entitled to compensation under the Safety,
Rehabilitation and Compensation Act 1988 (Cth)
(Act). However, its decision was overturned by the
Federal Court of Australia, and the Federal Court's decision was
upheld by the Full Court on appeal.
The Full Court considered that the employee's injuries occurred
in a brief 'interval or interlude' during an overall period of
work; therefore they arose in the course of her employment. It said
that the interval or interlude existed primarily because the
employer had induced or encouraged the employee to spend the night
at the motel. It was considered irrelevant that the employer had
not encouraged her to engage in the particular activity that caused
her injury.
The High Court decision
However, the High Court held that in such circumstances, the
injury must be connected to an inducement or encouragement by the
employer. It further said that the connection required something
more than simply being induced or encouraged to be at that place.
The relevant question was: 'Did the employer induce or encourage
the employee to engage in that activity?' On the facts in this
case, the majority said 'no'.
Comment
In other words, an employer is not 'the insurer' of an employee
for the whole time an employee is present in a particular place. To
attract liability for an employee who is injured while engaged in
an activity at a certain place, in the ordinary course, the
employer needs to have encouraged or induced the activity.
Addressing a common misunderstanding about terminating casual
employees
Some employers hold the mistaken belief that a casual employee
can be terminated for any reason and without notice, and that the
employee cannot apply for an unfair dismissal remedy. However,
casual employees who are employed on a regular basis and have a
reasonable expectation of ongoing work are, in certain
circumstances, entitled to an unfair dismissal remedy. In a recent
case before the Fair Work Commission (Commission),
an employer was found to have unfairly dismissed a casual worker
because complaints regarding her behaviour (which formed the reason
behind her termination) were not sufficiently serious to justify
dismissal, and the Commission awarded the employee
compensation.
Facts
The employee was employed by the company for a period of just
under 12 months between February 2012 and February 2013. The
employee was terminated because, according to her employer, she was
disruptive, insubordinate and difficult to manage. It said that her
performance as a customer service consultant was one of the worst
it had ever experienced. The company claimed it had warned the
casual worker on three previous occasions that her behaviour and
attitude were not at the required standard, and advised her of what
she needed to do to improve those aspects of her performance.
However, no records existed to evidence poor performance in her
role and the worker was in fact praised in a quality assurance
meeting shortly before her dismissal.
The decision
In considering the facts, the Commission found that the
company's principal reasoning for terminating the employee's
employment was that it held an erroneous belief that a casual
employee with less than twelve months' service did not have
recourse to any unfair dismissal remedy. In addition, the company
was under a misapprehension that a casual employee could merely be
dismissed because management 'had the right to decide which casuals
they employ and which casuals they let go'.
Comment
Employers should bear in mind that a casual employee who:
- has satisfied the minimum employment period; and
- is employed on a regular basis; and
- has a reasonable expectation of continuing employment,
is entitled to make a claim for unfair dismissal. Accordingly,
employers who terminate casual employees in these circumstances
will only be able to successfully defend an unfair dismissal
application if they can demonstrate that they had a valid reason to
terminate the casual worker and that they followed a fair
process.
Surreptitiously recording your boss doesn't invite trust and
confidence
The Commission has found that an unfairly dismissed worker could
not be reinstated after he secretly recorded conversations with his
employer, saying that such an act had 'struck at the heart of the
employment relationship, such as to shatter any chance of
re-establishing the trust and confidence necessary to maintain that
relationship'.
Facts
The worker was employed by the meat processing company from May
2007 until 8 February 2013 when he was dismissed. The basis on
which the company summarily terminated the worker's employment was
'due to ongoing and persistent threats made to numerous staff and
management over a considerable period of time'.
The decision
The Commission had little issue with concluding that there was
in fact no valid reason for the dismissal. An email from the
company's HR Advisor revealed that the company had agreed to
terminate the worker's employment on whatever basis it could. No
evidence was given to show the worker was warned about his
performance and the worker was given no opportunity to respond to
the allegations made against him (nor was he given the opportunity
to have a support person present).
Notwithstanding the favourable outcome for the worker, the
Commission determined that it could not grant the remedy sought in
terms of reinstatement because the worker had made surreptitious
recordings of his conversations with his managers. The Commission
noted that, while it was curiously permissible to tape private
conversations in Queensland and Western Australia where one party
to the conversation consents and it is reasonably necessary for the
protection of the lawful interests of that principal party, such an
act in circumstances of workplace disciplinary action was probably
not considered by the legislature. Deputy President Sams, in
refusing to reinstate the worker, said he considered 'such an act
to be well outside the normal working environment and contrary to
the well-understood necessity for trust and fidelity in the
relationship between employee and employer'.
The Commission said that while the recording was not the reason
behind the termination, an action permitted in the wider community
does not prevent the same action from providing a potentially valid
reason for dismissal. That is, it might form the future basis for
disciplinary action, up to and including dismissal, and have wider
implications in breach of contract cases where mutual trust and
confidence obligations are now said to exist.
Cases roundup
Individual workers fined $1m for illegal
strike
Construction workers who defied AIRC orders not to strike on
Woodside's Burrup Peninsula gas project almost five years ago have
been individually fined by the Federal Court for breaching the
Building and Construction Industry Improvement Act 2005
and the Workplace Relations Act 1996. The unlawful
industrial action taken by the workers was described by Justice
Gilmour as a 'concerted exercise aimed at disrupting the
performance of work, in order to exert pressure on [the company] to
make redundancy/severance payments'. The court fixed the fines
according to the exact number of days the particular worker was on
strike, with a maximum penalty of $10,000 for the 85 workers
involved in all of the breaches. The total fines amounted to over
$1 million. Adverse costs orders were also made against the
workers.
Waste not, want not
The Fair Work Commission (Commission) has fined
a Gippsland Waste company $10,000 after it defied orders made by
the Commission to reinstate and compensate an unfairly dismissed
employee. In its defence, the company explained that it had lost
both its Victorian contracts, and while it maintained a skeleton
staff of six, no jobs remained available. The Commission found that
the company's decision to refuse to meet its obligations was not
out of necessity, but was a deliberate choice. As a result, the
Commission fined the company $10,000 and directed that the penalty
be paid to the company's former employee.
FWO pursues director - and wins
The Fair Work Ombudsman (FWO) has won
proceedings against the director of a computer training software
company after he permitted staff to work knowing that the business
could not pay their wages. The Federal Circuit Court awarded 80% of
the maximum penalty on each count, totalling $52,800 (to be divided
between the employees in appropriate proportions).
Fined nearly $125,000 for disability
discrimination
A Sydney medical practice and its directors (both doctors at the
practice) have been fined almost $125,000 for underpaying their
visually impaired receptionist, while they were receiving a wage
subsidy for her through the Disabled Australian Apprentice Wage
Support program. The Federal Circuit Court found that the company
and directors breached disability discrimination provisions of the
Fair Work Act 2009 (Cth) when they underpaid the
receptionist because of her disability. When asked to 'make good'
on the underpayments, the directors initially refused - and only
made up the underpayments after the court action had commenced.
Heavy lift costs $820,000
The ACT Supreme Court has awarded more than $820,000 in damages
to a subcontractor who seriously injured his back while conducting
an awkward lift. It found that the employer failed to adequately
assess the risks of the lift before the task was undertaken when it
did not check the size and weight of the item being lifted. It said
'the risk of injury should have been apparent to someone in the
position of the [employer], as should the likely seriousness of the
harm which might flow'.
Stand-down within employer's control
The Commission has ruled that an employer is not permitted to
stand-down employees pursuant to the stand-down clauses in its
enterprise agreement during a period of scheduled maintenance. In
this decision, the enterprise agreement contained provisions akin
to those in the Fair Work Act 2009, whereby the
employer was permitted to stand-down its employees without pay in
circumstances where its employees could not be 'usefully employed'
because of, among other things, 'any stoppage of work through any
cause for which [the employer] could not reasonably be held
responsible'. The Commission decided that scheduled maintenance is
not the kind of activity for which an employer could not reasonably
be held responsible.
Redeployment O/S
The Commission has rejected the unfair dismissal claim of a
former senior mechanical designer who argued that his redundancy
was not genuine because his employer could have redeployed him
overseas. The Commission said it was generally not reasonable for a
company to redeploy an employee to an overseas location,
considering such things as relocation costs and other difficulties
that arise with overseas entities within a company group where, for
example, 'those entities operate their own distinct human resource
functions, policies and procedures, and there is no overriding
central managerial control'.
Federal Court declares legal advice a 'workplace
right'
The Federal Court has ruled that a betting agency breached the
general protections provisions when it warned an employee that she
would be sacked when she threatened to seek legal advice regarding
unpaid commissions. The court found that a person's workplace right
to make a complaint or inquiry under a workplace law or in relation
to his or her employment extended to seeking advice.
Medically fit condition requisite potentially an adverse
action
A company has escaped an adverse action claim for requiring an
employee to provide evidence that she was fit to return to work
prior to signing a new contract. The court found that AIAEI had
required the applicant to do so: first, because the particular role
was a fixed term vacancy and the applicant still retained permanent
part-time employment; and secondly, to protect the school from any
potential liability should the applicant fail to 'comply with
appropriate medical restrictions, and thereby exacerbate the injury
and make a claim'. The court found that the employee's carpal
tunnel syndrome or ability to make a compensation claim were not
the reasons behind AIAEI's decision to require her to sign a
new contract, and logically she was not injured because of her
failure to sign a contract for a fixed term.
Watch this space
Transport news
The Heavy Vehicle National Law has been further delayed and it
is uncertain when the laws will take effect. The National Heavy
Vehicle Regulator said it needs to conduct more tests of its IT
system for access permits.
The coronial investigation into Victoria's Kerang train disaster
has also recommended that, among other things, employers in the
road transport sector be required to undertake a weekly inspection
of vehicle brake pads and push rod extensions.
Commonwealth intervenes in Vic appeal against Federal
Court's finding on enforcement of construction code
The federal government has intervened in support of the
Victorian government's appeal against the Federal Court's decisions
in CFMEU v State of Victoria [2013] FCA 445 and CFMEU
v McCorkell Constructions Pty Ltd (No 2) [2013] FCA
446 that the enforcement of its construction code contravened the
Fair Work Act's prohibitions on adverse action and coercion.
The federal government notified the court of its decision to
intervene, stating it was in the public interest that the
Commonwealth make submissions about the correct interpretation of
those provisions.
Restaurant Industry Award decision
The Commission has rejected an application by the Restaurant and
Catering Association, Baking Industry Association of Queensland and
VECCI to reduce penalty rates and minimum award wage rates for
restaurant and catering workers. However, in its decision, the
Commission noted that the four-yearly award review (which commences
next year) was the more appropriate forum for determining whether
Sunday work should attract higher penalties than Saturday work. The
decision is being appealed.
Equal pay
The Pay Equity Unit of the Fair Work Commission
(Commission) has published a draft report to
inform the Commission about matters that might need addressing and
the type of evidence required in an equal remuneration proceeding.
The finalised report is to be made available on the Commission's
website on 6 December 2013.
Changes around Australia on workers'
compensation
There has been movement in Queensland, Western Australia, South
Australia, New South Wales and Victoria on the workers'
compensation front.
Importantly, the proposed Workplace Injury Rehabilitation
and Compensation Bill 2013 has combined Victoria's workers'
compensation legislation. The Bill, among other things, provides an
avenue for Victorian employers who are dissatisfied with their
premium notices and WorkCover's subsequent review decision, to
challenge their premium rates at the Victorian Civil and
Administrative Tribunal. The legislation passed through parliament
and is due to take effect on 1 July 2014.
Prevalence, nature and consequences of discrimination
relating to pregnancy at work and on return to work:
review
As foreshadowed in our July newsletter, the Australian Human
Rights Commission has commenced its review into pregnancy at work
and parents' experiences of returning to work after parental leave.
Employers wishing to make a submission are encouraged to visit:
http://www.humanrights.gov.au/supporting-working-parents-pregnancy-and-return-work-national-review-women-and-men
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September 3 was 'Equal Pay Day'. This day marks the period of
extra days in the current year that women need to work to achieve
the same wages that men earned during the previous financial year.
The Australian Bureau of Statistics reports that the gender pay gap
is around 17.5%.
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