Employment & Safety – Tips and Trends: Edition 31

EMPLOYMENT

  • 23 out of 3000 ain’t bad – The Federal Court has found that 23 potential redundancies in a workforce of 3000 did not constitute a “major change” that would trigger consultation. In Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246, the ANMF sought orders to halt Bupa’s planned restructure on the basis that it had breached the consultation clause in their enterprise agreement. The consultation clause, which had almost identical wording to the model consultation clause in the Fair Work Regulations 2009, established a framework for consultation for “major workplace change”. In dismissing the application, Justice O’Callaghan commented that he had been presented with no evidence that a potential loss of 23 out of 3000 jobs was a major change. This decision provides some guidance to employers in determining what may constitute a major change triggering consultation and the ‘relative’ meaning of that phrase.
  • Freight handler conversion: Not handled with care – A recent decision has upheld a casual employee’s right to convert to permanency on a “like for like” basis. In Tomvald v Toll Transport Pty Ltd [2017] FCA 1208, a freight handler, who was employed by Toll Group for almost a decade and worked about 38 hours a week including overtime, had sought to exercise his right under the enterprise agreement to convert to full-time employment. The Federal Court determined that Toll breached section 50 of the Fair Work Act 2009 by contravening the clause in its enterprise agreement which allowed casuals working on a regular and systematic basis for more than six months to elect permanency “on a like for like basis”. Toll was ordered to pay penalties totalling $42,500 for refusing to grant the conversion, along with other breaches. This follows on from the FWC Full Bench determining in July this year that awards should contain a similar clause allowing casual workers to convert to part-time or full-time employment in some cases (article).

SAFETY

  • Employee’s ‘spirited’ attack on alcohol testing – An ex-employee has unsuccessfully claimed that his psychological injury was caused by alcohol testing to which he was subjected at work in Pere v Central Queensland Hospital and Health Service [2017] QCA 225. The fire-safety and security officer was taken to the emergency room of the hospital at which he worked after a colleague noticed that he was behaving strangely. He claimed that he was “too intoxicated to consent” to the alcohol testing and that the way the testing was conducted caused him psychological injury. Both the District Court and the Queensland Court of Appeal rejected the employee’s claim, finding that his consent to the tests was valid and that the absence of a formal policy dealing with blood and urine testing did not preclude testing. Employers are generally entitled to direct employees to undergo drug or alcohol testing to assess fitness for work, particularly when they are in a safety critical role or environment. Employees are still entitled to withhold their consent, but employers may respond with disciplinary action up to and including termination.
  • Worker tree-ted poorly: financial penalty – In a national first, an employer was prosecuted under Victoria’s OHS Act and fined $20,000 (in addition to being ordered to pay $15,000 in costs) for failing to take reasonable steps to prevent the bullying behaviour of a company director. The Ballarat Magistrate’s Court accepted that the director constantly bullied the employee with abusive comments, swearing and aggressive body language. The tree maintenance company did not have any policies or procedures which might have mitigated the negative impacts of bullying. This case sends a clear message that bullying and other risks to mental health are no longer second-tier considerations when it comes to an employer’s duties to ensure workplace health and safety. Employers are strongly urged to develop policies and processes to identify and prevent bullying behaviour.
  • WHS Amendments pass Queensland parliament – The proposed amendments to Queensland’s Model WHS laws which we flagged previously have now passed parliament with some changes. The new and already controversial industrial manslaughter offence was further modified to explicitly clarify that lack of intent is not a defence (as it is for criminal offences in general). Eminent Australian WHS lawyer Michael Tooma has raised some concerns in relation to the manslaughter provisions, but has praised other aspects of the amendments which have made certain codes of practice mandatory (unless it can be proved that an alternative approach provides increased safety) and made the appointment of a WHS officer admissible evidence of compliance with the duty of care. The Queensland government has indicated that they intend to push for the nationalisation of these reforms, but it is possible that none or only some of the changes will be adopted interstate.

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: 31 October 2017

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