Employment & Safety – Tips and Trends: Edition 21

EMPLOYMENT

  • FWC rules on minimum wage and penalty rates – The Fair Work Commission recently made two important announcements that will affect a large range of Australian employers. Firstly, there will be a 3.3% increase to the Federal Minimum Wage and the rates in Modern Awards effective from 1 July 2017. Secondly, the timetable for implementing the much-publicised cuts to penalty rates has been finalised. For more detail about these changes, see our upcoming article on the topic.
  • Dismissal application rejected in bullying case – The Fair Work Commission has rejected an employer’s attempt to have a worker’s anti-bullying application dismissed for being “frivolous and vexatious” and having “no reasonable prospect of success”. The employer relied upon multiple workplace investigation reports which found that almost identical allegations made by the worker in the past were unsubstantiated. Commissioner Simpson found that there were contested facts about the adequacy of the workplace investigations, including the potential exclusion of key witnesses, and so it could not be said that the worker’s application was so hopeless that it can be dismissed without proper hearing. This decision demonstrates how high the bar is for having an application in the Commission summarily dismissed and suggests that the anti-bullying jurisdiction will continue to be an attractive venue for many employees to air their grievances.
  • Workplace legislation update – The Federal Government is looking to pass two of its workplace-related bills through the Senate before parliament breaks on 22 June – both have already passed through the House. One of those bills confers protections on vulnerable workers by boosting the evidence gathering powers of the Fair Work Ombudsman and increasing maximum penalties for underpayments. That bill has received widespread bi-partisan support. The second bill, however, which targets corrupting benefits paid to unions has been criticised for the inclusion of criminal offences carrying a maximum penalty of 10 years imprisonment in addition to $2.7 million dollar fines in some cases.  Stay tuned for more details as they arise.

SAFETY

  • Do health and safety representatives need entry permits? –  In Edition 9 we reported on a decision by the Federal Court that a union official didn’t need a federal permit to enter a workplace and render assistance at the request of a health and safety representative made under section 70(1) of the Victorian OHS Act. We also noted that an appeal was in the works. That appeal has now been heard and upheld by a Full Court. This has confirmed  that a union official does need a federal permit to enter a workplace and render assistance at the request of a health and safety representative, which we consider to be good news for employers. The CFMEU and WorkSafe Victoria have already indicated that they are likely to respond with yet another appeal to the High Court. The decision in this case (and any potential further appeal) is highly significant because it would also apply to the equivalent provision in section 70(1)(g) of the Harmonised WHS Legislation that applies in Tasmania, NSW, Queensland, ACT and NT. The appeal to the High Court, if allowed, could go either way so watch this space for more.
  • Survey on workplace psychological safety – Two Australian not-for-profits – R U Okay and iCare have released the results of a survey on psychological safety in the workplace. The survey is touted as the first of its kind and includes results from 1176 workers in all states and territories. Some of the key findings include disparities related to gender and pay level. The survey provides interesting insights for employers who are keen to promote mental health at work and can be viewed in full here.  Given the focus on mental health in WHS we recommend that any officers make sure that they have reviewed this information as part of their due diligence requirements.
  • Tug in cheek: tug master sacked for repeated safety breach – The Fair Work Commission has upheld the dismissal of a TasPorts tug master who grounded his vessel due to unsafe navigation practices. The worker placed undue reliance on visual navigation and effectively bypassed available electronic equipment in contravention of policy. It was highly relevant that the worker had grounded a vessel under similar circumstances previously and a full report had been produced in relation to both grounding incidents. This decision highlights the importance of investigating and documenting any significant safety breaches. Even if an incident is not enough to justify serious disciplinary action by itself, documentation may be relied upon subsequently if there is repeated behaviour.

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: 9 June 2017

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