Employment & Safety – Tips and Trends: Edition 4

EMPLOYMENT

  • Zero tolerance: ‘high’ expectations – A number of decisions this year have demonstrated the increasing willingness of the FWC to uphold decisions to dismiss employees where they have breached zero tolerance drug and alcohol policies. Recently, in Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724, the FWC found that it was reasonable and not unfair for Coles to dismiss a worker who tested positive to cannabis despite there being no evidence that he was impaired while on duty. This trend highlights the usefulness of having well drafted policies which clearly identify the consequences of unacceptable risk behaviours.
  • The clock is ticking – The FWC has confirmed the importance of strict compliance with the 14-day timeframe for issuing a Notice of Employee Representational Rights (NERR) when making enterprise agreements. In Uniline Australia Limited [2016] FWCFB 4969, the Full Bench found that a NERR issued by Uniline outside the required time-frame was invalid and of no effect despite the fact that a majority of employees had voted in favour of the agreement. It is critical for employers to ensure a NERR is issued within the required time-frame to avoid unnecessary complications in the bargaining process.
  • Redeployment obligations: seniority no excuse – The recent decision of Ferrao v Peter MacCallum Cancer Institute [2016] FWC 4953 has reinforced that a failure to properly accommodate redeployment opportunities in a redundancy situation, including offering redeployment to more junior roles, may lead to a successful unfair dismissal claim. The Commission also noted that subjecting an employee to a competitive selection process for an internal position may raise questions of the genuineness of the redundancy for unfair dismissal purposes.

SAFETY

  • If It’s Broke… Fix It – In Boland v RM Williams Pty Ltd [2016] SAIRC 26 an employer was found guilty of breaching section 32 of the harmonised WHS legislation. The breach related to a piece of machinery that injured an employee because it was not equipped with proper safeguards. In determining the penalty, the Court took into account that the employer had been found guilty of a similar offence previously (so the risk should have been apparent) and the necessary safeguard was inexpensive and straight forward to install. If you unnecessarily delay addressing a known safety risk in your workplace, any penalty for a related breach of the WHS legislation is likely to be increased as a result.
  • Workplace Bullying Guidelines – Safe Work Australia has recently issued new guidelines on bullying in the workplace, including an employer’s guide for preventing and responding to workplace bullying. The rise of bullying allegations continues to be a problem for many employers, and is fertile ground for claims of WHS breaches, workers’ compensation claims and employment disputes. Employers should have in place appropriate policies and procedures and provide suitable training to adequately address bullying in the workplace.
  • National Safe Work Month – October is National Safe Work Month. Visit the Safe Work Australia website for statistics, resources, case studies and a virtual seminar series. This is a great place to draw inspiration for WHS strategies to encourage employee compliance and engagement: http://www.safeworkaustralia.gov.au/sites/swa/media-events/safety-month.

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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