Employment & Safety – Tips and Trends: Edition 24

EMPLOYMENT

  • Let’s keep it casual: converting to a long-term relationship – As part of the four-yearly review of modern awards, the FWC has accepted that awards should contain a clause allowing casual workers to convert to part-time or full-time employment in some cases. The decision gives casual employees the right to convert to full-time or part-time after 12 months of regular and systematic casual employment subject to specific grounds for refusal. Employers are also obligated to provide all casual employees with a copy of the casual conversion clause within the first 12 months of their initial engagement. If you are operating in a casual-dominated workforce, you should pay particular attention to the hours being worked by your casual employees so that the prospect of a request for conversion to permanent employment can be assessed.
  • Commission leaves DV leave for another day – The FWC has rejected a bid from the Australian Council of Trade Unions to incorporate paid domestic violence leave into modern awards, finding that it was “not satisfied that paid leave is necessary” to overcome workplace disruption arising from family and domestic violence. However, the FWC did express a “preliminary view” that provision should be made for employees to access unpaid family and domestic leave and invited parties to make submissions in the next stage of the review. This is an area to watch for employers – we will keep you updated with any further developments.
  • Adverse action update: Pregnancy related dismissal prohibited – A recent decision has found that an employer took unlawful adverse action when they dismissed a pregnant employee for taking time off to manage morning sickness. In Mahajan v Burgess Rawson & Associates [2017] FCCA 1560, a real estate agency claimed it dismissed the administrative assistant due to issues with underperformance and lateness for work. The Federal Circuit Court accepted that the employer drew a causal connection between the employee’s pregnancy and her unreliability to attend work, which was a significant and substantial reason for her dismissal. This case is a reminder for all employers that if a ‘prohibited reason’, such as taking personal leave, forms even one of the reasons (among others) for terminating an employee, there is a real risk of a general protections claim.

SAFETY

  • Host employer under pressure: Negligence claim upheld – A host employer was found liable for the injury of a labour hire worker in Love v North Goonyella Coal Mines [2017] QSC 140. The worker was operating a roof bolting machine at height when the 40kg device unexpectedly lost pressure, causing a fall and serious spinal injuries. The evidence at trial suggested that the loss in pressure was caused when the operator of a nearby machine borrowed the compressed air hose to restart his own equipment. The worker sued the host employer, which operates the mining site at which he was injured, for failing to implement directions, procedures or a tagging system to prevent interference with vital equipment during use. In finding for the plaintiff, the judge reasoned that the host employer exercised total control over the worksite and the system of work which caused his injuries. This case is a reminder to all organisations, especially those who utilise labour hire workers, that their common law duty of care (as well as their statutory duty under WHS laws) extends to any workers over whom they exercise “significant control” similar to that of a conventional employer.
  • Due Diligence Disaster – The legal fallout continues, following the tragic death of an 8 year-old girl at the Royal Adelaide Show in September 2014 (see related article). An officer of the company which operated the ride that killed the girl has now been charged and pleaded guilty to breaches of her due diligence obligations under South Australia’s mirror WHS laws. The company failed to register the imported ride, didn’t enforce minimum height requirements and failed to ensure that operators didn’t use mobile phones while the ride was in motion. The number of people and entities that have been charged with WHS offences in relation to this single incident (including the engineering company that negligently inspected the ride, and the ride operator company itself) demonstrates the extremely broad reach of WHS liability.

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

Barney Adams
Lawyer
T: (03) 6235 5917
E: badams@pageseager.com.au

Nicola Dobson
Lawyer
T: (03) 6235 5193
E: ndobson@pageseager.com.au

Published: 20 July 2017

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