APRIL
Victoria to introduce “Sick Pay Guarantee” for casual workers
The Victorian Government has announced a “Sick Pay Guarantee” to be offered to casual workers in retail, hospitality and food services, supermarket and supply chains, aged and disability care, cleaning and laundry, and security.
These changes have come about to expand upon the temporary measures implemented by the Victorian Government in the face of the Covid-19 pandemic regarding casual employees not being entitled to paid sick leave as per the National Employment Standards. Employer groups have voiced concerns about the interaction of the proposed “sick pay guarantee” with the payment of casual loading prescribed by most modern awards.
The scheme will be introduced in a two-year pilot program with more than 150,00 eligible workers expected to register for the first phase. Under the guarantee, casual workers will be entitled to five days of sick or carer’s pay per year at the national minimum wage.
The Government has also pledged to fully fund the scheme for the first two years and administer the program directly to workers so businesses can more effectively focus on economic recovery. No bill is currently before parliament.
New work health and safety laws in Western Australia
Western Australia’s new Work Health and Safety Act 2020 (WHS Act) commenced on 31 March 2022.
In March, it was announced that the new WHS Act, repealing the State Occupational Safety and Health Act 1984 and workplace health and safety provisions of the Mines Safety and Inspection Act 1994, would commence on 31 March 2022.
The WHS Act has introduced some significant changes in Western Australia, including:
- the introduction of the ‘person conducting a business or undertaking’ concept as the person with the primary duty of care under the legislation;
- a penalty provision for industrial manslaughter; and
- a greater variety of workplace relationships covered by WHS duties, including labour hire relationships and ‘gig economy’ relationships.
Whilst a transitional period has been in place to allow businesses to adopt the new laws, the fact that the WHS Act received assent in November 2020 places an expectation on businesses to be already familiar with key concepts. If not, they should seek advice.
Court confirms lawfulness of Qantas stand down
A full bench of the Federal Court (FBFC) has upheld a single judge’s decision that Qantas’ decision to stand down engineers during the pandemic was lawful.
In its appeal, the Australian Licensed Aircraft Engineers Association (ALAEA) argued that the Qantas and Jetstar workers were unlawfully stood down and that the stand down clauses in the respective enterprise agreements (which aligned with the requirements of section 524 of the Fair Work Act 2009) cannot be engaged by mere market fluctuations or reductions in profitability. This appeal was dismissed by the FBFC deciding that economic considerations remain entirely relevant to the assessment of reasonable responsibility or preventability. The FBFC acknowledged that what Qantas and Jetstar faced was no mere market fluctuation but an almost complete collapse of the international and domestic market for airline services.
This decision reinforces that the impacts of the pandemic caused a stoppage of work that was outside of Qantas’ control and the stand down of workers that resulted was lawful.
Employer and director to pay $150k in sexual harassment and assault damages
Employer, Hebeich Pty Ltd (Hebeich), and its director have been found vicariously liable for the sexual harassment and assault of a worker under section 109 of the Equal Opportunity Act 2010 (EO Act). The Victorian Civil and Administrative Tribunal (VCAT) found that the steps taken by the director having “flicked through” the company anti-harassment guidance constituted a failure to take proportionate measures which could have prevented the subsequent assault.
The worker, a beauty therapist, reported multiple incidence of harassment from a male co-worker including sexual gestures, suggestive comments and noises, and other inappropriate touching which left the worker feeling humiliated, distressed and at a complete loss of her confidence. The worker claimed to have complained directly to the director twice, but nothing was done. This ultimately culminated in an egregious assault to which the co-worker has admitted to and is facing criminal charges over. Hebeich maintains that that after each complaint, the director spoke to the co-worker and instructed him to avoid physical contact.
In addition to making a claim under vicarious liability, the worker argued in relation to section 105 of the EO Act that the inaction of the employer had the effect of authorising the co-worker’s unlawful conduct. The VCAT held this to not be proven on the fact that the co-worker was not aware that the manager knew about the sexual harassment and could thus not have the mental state of knowing they were authorised.
VCAT member, Ian Scott, was satisfied that there was no evidence that Hebeich had educated its employees on workplace discrimination and sexual harassment issues and policies or ensured that any of them understood the contents of their 100-page electronic employee handbook. Moreover, Hebeich had failed to ensure compliance with its policies, investigate the sexual harassment allegations or discipline the co-worker in a timely manner.
The worker was then awarded $150,000.00 in damages after finding that the effects of the sexual harassment after four years would continue to be suffered and dealt with.
FWC throws out sexual-harassment case as victim no longer employed
In what appears to be its second substantive ruling in its new anti-sexual-harassment jurisdiction, the Fair Work Commission has found that a supervisor sexually harassed a casual chef when he badgered her to intimately engage with him but has thrown out the case because the victim is no longer with the employer.
Deputy President Abbey Beaumont found the supervisor – a head chef at Perth’s Riverton Bar and Grill – sexually harassed the chef on three occasions. She also rejected the employers’ submissions which suggested that the allegations of the sexual harassment and workplace bullying only arose after an incident at work.
Deputy President Beaumont determined that all conduct relating to the claim occurred at work, including telephone conversations that took place while travelling to and from work.
Like in the bullying jurisdiction, the Commission can only make an order it considers appropriate to prevent the worker from being sexually harassed at work. It followed that after the chef’s departure, there was no risk of sexual harassment and therefore, the application has no reasonable prospects of success. As a result, Deputy President Beaumont had no power to issue an anti-sexual-harassment order and dismissed the section 789FC application.
New incident notification requirements in Victoria
In accordance with recent changes to section 37 of the Occupational Health and Safety Act 2004, employers are now required to notify WorkSafe Victoria (WorkSafe) of “serious near misses”, instead of just “immediate risks”. This means employers must notify WorkSafe of incidents that do not result in injury but expose a person to a potentially serious health and safety risk. This new threshold will also allow for certain serious illnesses and large-scale diseases to be prescribed as incidents for notification purposes, including activities with cumulative risk.
The recent changes also extended WorkSafe inspectors’ powers so they can issue prohibition notices and give oral or written directions pertaining to non-immediate but serious health and safety risks, rather than just immediate health risks.
HR manager’s compassionate actions dispel worker’s bullying claims
In the context of a bullying application, a HR manager has been commended by the Fair Work Commission (FWC) after displaying an “enormous amount of compassion” for a mentally ill and aggressive worker who accused her of bullying.
The worker, a casual and volunteer at Launceston City Mission (City Mission) accused the HR manager and other managers of bullying him after raising concerns that his usual shifts were being given to a new employee. Additional reports included that the warehouse general manager had told him he was unreliable, slept on the job and used his depression “as an excuse.”
In dealing with the complaint, the HR manager apologised that the worker had not been effectively managed and offered a clean slate in that no issues previously raised would be included in his performance review. The warehouse general manager would undergo performance management training and all social enterprise managers would be trained to work with people with mental illness. City Mission requested the worker take some time off and decided to relocate the worker to a location closer to his home.
The HR manager kept in contact with the worker after additional incidents of the worker threatening violence, expressing suicidal thoughts and indications that he sympathised with people who “bring a gun to work.”
Commissioner Tim Lee held that the worker’s actions should be “seen through the prism of his struggle with depression” but expressed “significant concern” at his behaviour during the hearing which included directing anger toward the HR manager, slamming his fists on the desk, and screaming loudly into the microphone.
City Mission has maintained that its actions including those to relocate the worker were made as reasonable management actions taken in a reasonable way, noting the concerns other employees had raised regarding their own safety.
The FWC declined to make an order to stop bullying.
Northern Territory’s first industrial manslaughter prosecution
In March 2022, WorkSafe NT brought charges under new industrial manslaughter provisions for the first time since their introduction in February 2020. A worker of Kalidonis NT Pty Ltd (the Company) was fatally injured while operating machinery at work on 20 March 2020.
The worker was operating one digger to recover another when the chain between the two snapped, striking him while he was sitting in the cabin. The chain and cabin had been inadequately maintained and a risk assessment had not been undertaken for the recovery operation.
The Company has been charged industrial manslaughter under the new section 34B offence with a maximum penalty of more than $10.2 million. A person conducting a business or undertaking (PCBU) commits the offence if they:
- have a health and safety duty; and
- intentionally engage in conduct that breaches the health and safety duty and causes the death of a person to whom the duty was owed; and
- are reckless or negligent about the conduct breaching the duty and causing the death.
The Company has been charged with two alternative offences for reckless conduct with a maximum penalty of $3 million or for failing to comply with a health and safety duty with a maximum penalty of $1.5 million.
The Company’s sole director has been charged with reckless conduct or alternatively failing to comply with a health and safety duty, with maximum penalties of $600,000 and $300,000 respectively.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
