Employment & Safety – Tips and Trends: Edition 32

EMPLOYMENT

  • Accessorial liability on the menu – In May 2016, Fair Work Ombudsman Natalie James spoke about the increasing focus on accessorial liability: “We are increasingly pursuing a broader range of accessories, including accountants and human resources managers.” A recent decision has confirmed the FWO’s intention to hold officers personally accountable by ‘lifting the corporate veil’. In Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301, an HR manager who processed underpayments of almost $600,000 restaurant workers and falsified records provided to the FWO was personally fined $21,760. In determining the penalty, the Federal Court gave minimal weight to the fact that the manager did not have formal qualifications or training in human resources and that she had a family connection with the company. The HR manager’s penalty formed part of a total of $525,057 in fines imposed on the company. Employers and their officers must ensure they are proactively monitoring to ensure their business is compliant with its obligations under the FW Act.
  • Pilot program cleared for take-off – At the recent “International Perspectives on Dispute Resolution” conference, FWC President Iain Ross has indicated that the Commission is investigating a number of strategies to improve accessibility for parties including establishing “administrative hubs” in suburban centres, providing improved online information, free access to audio files of hearings and greater workplace advice clinics. President Ross also discussed a current pilot program in Melbourne where unfair dismissal cases can be heard, by request, on a Thursday evening or on Saturdays because employees and small businesses often find it difficult to take a day off to attend a hearing. Depending on the success of the program, it is likely that this will extend to other states in the future.
  • Redundancy not manufactured – The Federal Circuit Court has dismissed a sheet metal worker’s adverse action claim that he was made redundant due to complaints made about workplace bullying and harassment. In Hull v Hertel Modern Pty Ltd [2017] FCCA 2579, the worker alleged that he was shortlisted for redundancy a week after telling a supervisor that a colleague had made a series of racist comments to him as well as a derogatory statement to him on Facebook. In dismissing the claim, the Court noted that the HR manager had already dealt with the complaint “quickly and efficiently” by speaking with the metal worker and the colleague on the same day he received it, and determined that the complaint “played no part in any action taken” by the HR manager to leave the metal worker’s name on the list of redundancies. This decision demonstrates that dealing with complaints properly and promptly has benefits beyond addressing the immediate problem at hand. We encourage employers to review their policies and procedures to ensure they are well situated in this regard.

SAFETY

  • Active complaint management brings gains for employer – The Queensland District Court has ruled that an employer was not liable for insulting Facebook posts made by one of its managers in Robinson v Lorna Jane Pty Ltd [2017] QDC 266. An employee claimed that the manager had called her names in person and that she was an intended target of several social media posts (which didn’t mention anyone by name). The posts referred to “oxygen thieves” and claimed that it is “difficult to soar with the eagles when your [sic] surrounded by turkeys”. The Court found that the employer had taken reasonable steps by having a bullying policy, requiring the manager to delete the posts and reprimanding her once they found out about the existence of the posts. This case is a reminder that basic and highly practicable steps can be taken to protect employee mental health and avoid liability for claims in negligence and under the FW Act.
  • Decmil: You shall not pass – Two companies have been found guilty of contravening right of entry provisions in the FW Act by refusing access to CFMEU officials in CFMEU v Decmil Engineering Pty Ltd (No. 2) [2017] FCA 1237. The union officials had valid entry permits and notified the occupiers that they suspected unsafe systems of work were being used on the construction site. The companies continued to refuse access even when WorkSafe Victoria inspectors attended and advised that entry must be granted. The case was complicated by the fact that the companies had obtained legal advice that they were entitled to refuse access. The Court ordered a low penalty in recognition of the fact that the companies acted on a misapprehension of facts and based on legal advice, however, this case shows that rights of occupiers and entrants are strictly enforced by courts. It is important for employers to have people on site with an understanding of entry laws and to get all the facts straight before granting or refusing entry.
  • Penalty ramp up continues – Western Australia has proposed increases to fines under its OHS Act which are intended as a temporary measure until the harmonised legislation is introduced, probably in mid-2019. The changes would see the maximum penalty for the most serious offences increase to $3.5 million, compared with $3 million under the harmonised laws and $3.2 million in Victoria. If these changes are introduced before the commencement of Queensland’s industrial manslaughter provisions (which carry a maximum of $10 million), then WA will temporarily have the highest fines in the country.

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: 14 November 2017

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