Employment & Safety – Tips and Trends: Edition 19

EMPLOYMENT

  • Accessorial liability? You can account on it – We have previously reported on the FWC’s increased willingness to enforce accessorial liability provisions where individuals are aware of underpayments occurring in the workplace (see related article). A recent decision has confirmed that this trend applies not only to directors and HR managers, but also to external advisors. In Fair Work Ombudsman v Blue Impression Pty Ltd [2017] FCCA 810, an accountancy firm that knowingly failed to maintain current award rates of pay in its payroll system has been found liable for an employer’s underpayments. Although the accounting firm claimed it was merely a service provider for the employer, the Commission found that the accounting firm was aware of the underpayment and their lack of action to rectify it amounted to a breach of the accessorial liability provisions.
  • From the Bench: Tips on roster flexibility – The Full Bench of the FWC has determined that employers are entitled to change their employees’ rosters, provided they are not in breach of their workplace agreements. In Bupa Care Services Pty Limited v New South Wales Nurses and Midwives’ Association [2017] FWCFB 1093, the Full Bench upheld Bupa’s appeal against a decision last year that it was unable to make roster changes without an employee’s written consent. Bupa’s enterprise agreement provided that the terms of employment for a part time employee could only be varied by agreement, but also contained a subsequent clause allowing rosters to be varied with reasonable notice. The decision is a reminder for employers to be specific in the drafting of their enterprise agreements.
  • Dangerous minority to foot the Bill – A proposed amendment Bill to the Fair Work Act 2009 could have serious ramifications for employers who are found to be exploiting vulnerable workers. If it becomes law, the Fair Work Amendment (Protecting Vulnerable Workers) Bill will provide greater powers in relation to investigating and prosecuting underpayment claims, including significantly increasing pecuniary penalties for serious contraventions. Fair Work Ombudsman Natalie James commented that stronger evidence gathering powers and an ability to impose higher penalties for more serious breaches would make a real difference to the FWO’s capacity to address conduct from a “dangerous minority” of employers.

SAFETY

  • Victoria comes to the party (fashionably late) – the Victorian government has agreed, in principle, to adopting the broad definition of ‘worker’ and the consultation obligations contained in the model WHS legislation. The model legislation currently applies is all states except Victoria and WA. The changes are probably still a way off as the government has indicated that they will conduct further reviews and take a slow and steady approach to implementation.
  • Employer zapped with power line fine – A new record-smashing fine of $1 million has been imposed upon a company by the NSW District Court in Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 92. This is by far the highest fine ever imposed in NSW (previous record was $500,000) and equal to the Victorian record holder (see related article). The director of WGA knowingly instructed a sub-contractor to perform work on a scaffold near live powerlines. The director attempted and failed to persuade the owners of the powerlines that they should be isolated, but then proceeded with the work anyway to stay on schedule. The sub-contractor suffered a serious electric shock and burns to 30% of his body. The company pleaded not guilty despite having recently been issued with two improvement notices in the period leading up to the incident in relation to the exact risk (posed by the proximity of the scaffold to the power lines) that eventuated! This is a reminder to all businesses to think carefully about the potential costs of putting deadlines before safety.
  • Balancing act: dealing with discrimination risks – The Victorian Court of Appeal has handed down an instructive ruling on a question of law in DPP v Acme Storage Pty Ltd (a Pseudonym) [2017] VSCA 90, which sheds light on the operation of the nation’s model safety legislation, as well as the Victorian Act. The court unanimously rejected the defendant-employer’s contention that on a charge of discriminating against employees for ‘raising a safety issue’, there is an onus upon the prosecutor to prove that issues were raised on reasonable grounds or based on genuine belief. The court further held that where discriminatory conduct is in the form of a threat to act to an employee’s detriment, there is no need for the prosecution to prove that the employee apprehended that the threat would be carried out. This ruling, which seems likely to be followed in other jurisdictions, provides some guidance for managers about how to balance the need to deal with spurious complaints as a disciplinary matter, with their obligations under workplace health and safety laws.

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: 12 May 2017

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