Employment & Safety – Tips and Trends: Edition 5

EMPLOYMENT

  • Setting off award entitlements – In Stewart v Next Residential Pty Ltd [2016] WAIRC 756 an employee was successful in claiming almost $30,000 in unpaid overtime and lunch breaks from her employer. The employee’s contract contained a clause which provided that her annual salary was “inclusive of any award provisions/entitlement” but did not identify which award or entitlements were included. The Commission found that the claim was not excluded by the contract, which was uncertain and did not clearly indicate that the employee’s annual salary included overtime in accordance with the relevant provisions of the Award. This case highlights the risks of relying on ‘all inclusive’ and ‘set off’ clauses and the care that needs to be taken when drafting such clauses.
  • Would you like fines with that? – The Federal Government has announced a plan to ‘up-size’ penalties under the Fair Work Act and the Fair Work Ombudsman’s powers in an attempt to deter the underpayment of workers. Employers are set to face a ten-fold increase to the current maximum penalty for the underpayment of workers (currently $10,800 for an individual and $54,000 for a corporation). This follows a number of underpayment prosecutions and in particular, the recent decision of the Federal Circuit Court where record penalties of $340,290 were imposed on a 7-Eleven franchisee.
  • Hefty tolls for Facebook trolls – In Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine [2016] FWC 6036, a mine maintenance fitter was dismissed after posting a Facebook status that made a derogatory comment directed at his supervisor but that did not identify the supervisor by name. The Fair Work Commission found that the incident had sufficient connection to the employment relationship given that the employee had many colleagues on Facebook who would infer the comment was about the supervisor. However, the Commission found that the dismissal in this case was ultimately unfair given the employer’s failure to notify or give the employee an opportunity to respond to the investigation.

SAFETY

  • Dragged over the Coles: costly enforceable undertaking – Coles Supermarkets Australia recently signed up to an enforceable undertaking worth close to $400,000. The undertaking arose out of a breach of the harmonised WHS legislation which resulted in a customer suffering a fractured pelvis after being hit by a runaway roll cage. This high profile matter is an example of a general trend towards alternatives (particularly enforceable undertakings) to prosecution and the need to invest proactively in safety so you can create a safe work environment on your own terms.
  • Surge in electrical safety breaches – Electrical safety continues to be a cause for national concern. Three recent prosecutions in Queensland follow a warning issued by the Electrical Safety Office in that state. The issue is by no means restricted to Queensland. Many cases involving electrical safety breaches have been appearing throughout the country. One recent example involved an electrocution in residential premises as a result of faulty electrical supply from an adjacent worksite. People with duties under WHS legislation are encouraged to be particularly vigilant about potential electrical hazards.
  • Don’t go breaking my policies –  In Lerch v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 98 an employer was found not to have complied with, or even considered, their own domestic and family violence policy. The non-compliance concerned variations to an employee’s roster in circumstances where he and his wife (also an employee) had both obtained protection orders against each other. The prevalence of domestic violence as a national issue and its ‘spill-over’ effect on the physical and mental wellbeing of employees makes it an increasingly common subject matter for workplace policies. This is a positive development, but just like any workplace policy, it is important not to take a ‘set it and forget it’ attitude to compliance. Employees are entitled to expect that employers will act in accordance with their own policies.

If you have any queries or would like further information regarding this article, 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

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