Employment & Safety – Tips and Trends: Edition 7

EMPLOYMENT

  • Clouded judgment or just plane wrong – A recent FWC decision has confirmed that an employee cannot justify sexual harassment by reference to their workplace culture which seemingly appeared to otherwise permit such behaviour. In Applicant v Respondent [2016] FWC 7077, an airline Crew Supervisor shared sexually explicit photographs, said inappropriate comments and made unwanted sexual advances. In denying the allegations, the employee stated that he was a victim of the airline’s workplace culture where on “almost every flight, the talk would turn into a discussion on sex”. The Commission rejected this justification and found that the employee was liable for his own conduct and the dismissal was not unfair.
  • Uber: Driving a change in employment relationships – A recent update in legislation will mean ride-sourcing companies such as Uber are likely to be operating in Tasmania by Christmas. Uber has a share-based business structure which raises many legal questions including whether their drivers are likely to be independent contractors or employees. This is an important distinction in determining whether the drivers receive minimum employment entitlements. This is a key example of how the sharing economy has the potential to revolutionise employment relationships across a number of industries. Stay tuned for more updates in this area.
  • Video killed the termination – The Federal Court has prevented a mining company from using a video recording of an employee to terminate his employment. In Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248, an employee had a conversation on site in which he made a number of “adverse and colourful” comments about his employer using violent language. The conversation was held in the presence of security guards engaged by the company who had lapel cameras fixed to their jackets. This decision is a reminder that you are unlikely to be able to use footage of employees where it is taken in the context of a private conversation and the employee is unaware of the recording.

SAFETY

  • Out of the frying pan… – In a recent judgement, the Victorian County Court has increased a fine initially imposed for a breach of the Harmonised WHS legislation ($7,000) by more than 7 times the original figure to $50,000. The relevant breach related to section 23 and involved a head and knee injury to an employee caused by a forklift. This case reflects the trend towards heftier fines and lower tolerance of WHS breaches. Sometimes the true cost of non-compliance will not be revealed until after an extended period of investigations and appeals.
  • South Australia to ‘check its privilege’ – A recent SafeWork South Australia discussion paper claims that an upcoming national review of the harmonised WHS legislation by COAG will probably be postponed until 2018. However, the mandatory statutory review in SA itself will be proceeding shortly with public submissions due by 30 November 2016. The review will focus on provisions of the SA Act that differ from the model national laws. One such provision which may be reconsidered grants a privilege against self-incrimination. It allows people under investigation to refuse to answer the questions of a safety inspector if doing so might incriminate that person.
  • Non-profit urges ‘solardarity’ with outdoor workers – The Skin and Cancer Foundation’s 2016 ‘Skin Health Australia Report Card’ shines light upon a common, but often neglected workplace health and safety risk. The report, based on a survey of more than 1,000 people, found that many employers aren’t taking basic steps – such as providing workers with sunscreen, protective clothing or sunglasses –  to help shield outdoor workers from sun-related risks.  The survey also flags the issue of absence from work caused by skin conditions. The protective measures identified in the report offer cheap and effective protection and should be considered by all employers who engage outdoor workers.

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

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