Employment & Safety – Tips and Trends: Edition 1

EMPLOYMENT

  • Specific Period / Task Term Contracts – the recent decision of Fraser v Act for Kids [2016] FWC 5052 has highlighted the importance of ensuring that specified term contracts are tailored to the employment relationship that they relate. In that case, the FWC found that Act for Kids could not prove an employee (by either express term or implication) was employed under a fixed-term contract that had expired, meaning the employee had access to the unfair dismissal jurisdiction. If your business uses specified term or task term contracts, please ensure that they express the relationship clearly and that employees are aware of the exact implications prior to entering into the contract well in advance of the purported employment end date.
  • Flexible Working Arrangements and Redundancy – an employer was ordered to pay $52,000 in compensation to a former employee who was made redundant because she returned to work after maternity leave and made a request for flexible working arrangements. The employer implemented a legitimate restructure which moved the employee’s pre-natal role to another employee and ultimately made her redundant however, the employer was unable to ‘disprove’ that the request for flexible work arrangements was not the reason for the redundancy. The decision highlights the importance of being able to demonstrate objective and legitimate reasoning for decisions which could otherwise be perceived as discriminatory.

SAFETY

  • Inadequate Supervision for Labour Hire Employee – A company hosting a labour hire worker was ordered to pay close to $600,000 in compensation as a result of the recent decision in Jurox Pty Ltd v Fullick [2016] NSWCA 180. The host employer only demonstrated once how to properly perform the task, which caused the worker’s injury, as a part of orientation. The worker subsequently used an unsafe technique in the presence of the colleague who had trained her and was not corrected. It is crucial to confirm that a worker has understood safety related instructions and implement a system of continued supervision to monitor compliance with safe workplace techniques and practices particularly with new workers.
  • WHS Fines at All-Time High – The amount of fines payable for WHS violations was uplifted considerably in a recent legislative overhaul across Australia. In Victoria 108 businesses were fined a total of $5.56 million for safety related breaches in 2015-2016. 40 of those 108 businesses were in the construction industry. A timely reminder: it is more important than ever to approach WHS proactively.
  • Mental Health and WHS – An employer was ordered to pay over $400,000 in damages where a worker’s psychiatric illness was a reasonably foreseeable consequence of a manager’s inappropriate behaviour. Employers should be vigilant for signs of mental distress or deterioration and implement comprehensive systems and procedures, not ad hoc solutions. This is heightened where a person with managerial duties does not have the expertise to deal with mental health issues, or where their behavior contributes in some way to mental health issues. Free resources are available online, for example, Beyond Blue’s Heads Up program. Also consider outsourcing appropriate tasks, for example, employee assistance programs that provide free or subsidised counselling sessions with an external provider.

If you have any queries or would like further information regarding this article, please contact:

David Dilger
Partner
M: 0428 238 819
E: ddilger@pageseager.com.au

Rod Collinson
Partner
M: 0430 221 067
E: rcollinson@pageseager.com.au

Luke Gattuso
Partner
M: 0411 989 292
E: lgattuso@pageseager.com.au

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