Employment & Safety – Tips and Trends: Edition 16

EMPLOYMENT

  • The end is NERR: replacement form coming soon – A recent amendment will alter the form of the NERR which an employer is required to give employees at the commencement of the enterprise bargaining process. The Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2016 will commence on 3 April 2017. While the amendments are minor and technical, it is important for employers to ensure they are using the most up to date version of the NERR. The Fair Work Commission has previously and consistently found that inconsistencies or variations to the NERR will invalidate the notice and prevent approval of often long negotiated enterprise agreements.  This amendment will hopefully allow FWC some much needed discretion to amend minor inconsequential errors.
  • Corruption crackdown – This month, Australian Prime Minister Malcolm Turnbull announced that the Australian government will be taking steps to pass legislation that criminalises payments made to union officials unless the payments have a legitimate purpose. If passed, the bill will carry heavy penalties of up to 10 years’ imprisonment or $4.5 million in fines for corporations who make payments with the intent of encouraging union officials to act improperly, or two years’ imprisonment or fines of up to $450,000 for corporations who make payments that do not have a clearly legitimate purpose. If implemented, the laws will be a step towards addressing concerns of transparency raised by the Commission.
  • The silent treatment – The Federal Circuit Court has dismissed an adverse action claim from an employee who did not attend medical assessments and “shut down” communication with his employer. In Laviano v Fair Work Ombudsman [2017] FCCA 197, the Fair Work Ombudsman dismissed an employee after he failed to attend numerous medical assessments and did not communicate with his employer during his extended absence from work due to a psychological condition. In dismissing the employee’s claim that he was dismissed because he exercised his workplace right to take personal leave, the Court accepted that in the circumstances, the employee had a duty to communicate with the employer while on personal leave. This decision emphasises the right of employers to continue to actively manage employees who are incapacitated from work.

SAFETY

  • Mined-fulness – The first ever mental health and wellbeing inspector has been appointed in Western Australia by the Department of Mines and Petroleum. The inspector is tasked with developing health and safety protocols for protecting resources workers’ health and wellbeing. This appointment is further evidence of the increasing importance of mental health in the context of WHS regulation and awareness.
  • Another record-breaking fine – Another WHS fine record has been broken, this time in Queensland. A sole trader has been fined $80,000 out of a possible $300,000, which is the maximum for an individual. This is the highest fine ever handed out to an individual under Queensland’s version of the model WHS legislation (which applies everywhere except WA and Vic). The employer in this case directed a casual worker with no relevant training to remove the bolts from a “chair-o-plane” ride which then collapsed on the worker and killed him. This is yet further proof of the increasing stakes for WHS related negligence.
  • Prepare for the worst – an employer in Victoria has been fined $50,000 in connection with the fatality of a worker. The worker was killed when a bed-borer was lifted by a crane out of a pit that was designed to prevent it from rotating under torque. When the borer was lifted, rods attached to it struck and caused him to fall and suffer fatal head injuries. The fine was relatively low (for one involving a fatality) because the risk which caused the accident was relatively unlikely to occur. It was not standard procedure to lift the borer out of the pit so the safety precautions which should have been taken were not properly addressed in advance. The fine was still imposed, however, because the magnitude of the risk was great enough to outweigh its relative unlikeliness. This case shows that there is a greater need to cater for less likely risks in a more dangerous workplace.

If you have any queries or would like further information regarding this edition, 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

Published: 31 March 2017

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