Employment & Safety – Tips and Trends: Edition 14


  • Employees do not ‘rate’ penalty decision – In a controversial decision, the Full Bench of the FWC announced last week that penalty rates for Sunday and public holiday work will be reduced in the Restaurant Industry Award 2010, General Retail Industry Award 2010, Hospitality Industry (General) Award 2010, Fast Food Industry Award 2010 and Pharmacy Industry Award 2010. The changes to public holiday rates will take effect from 1 July 2017 while the reductions in Sunday penalty rates will take place following appropriate transitional arrangements to mitigate hardship for employees who work on Sundays. There has been significant debate about the decision from both unions and employer bodies. We will keep you updated with any developments.
  • Bullying claim gets rolled – The FWC has rejected an anti-bullying application from a casual employee who received a written warning from her employer 11 months after a misconduct investigation was initiated. In Brown v Park Beach Bowling Club Limited [2017] FWC 896, an investigation was commenced after allegations that the food and bar attendant made fun of a former co-worker’s weight and spoke rudely to her manager. Two separate external HR consultants investigated the allegations which ultimately led to the warning being issued. The Commission found that although the 11-month delay was unreasonable and had no “intelligible justification”, the conduct did not amount to bullying. While we do not recommend taking this sort of approach, this decision confirms that objective evidence, not subjective feelings, is required to establish a bullying claim.
  • Adverse action battle: Employee strikes out – The Australian Baseball League has successfully defended an adverse action claim brought by a former general manager after opting not to renew his contract. In Klein v Australian Baseball League [2016] FCCA 1722, the general manager alleged that the League ended his contract after he exercised his workplace rights by making complaints about his employment. In dismissing the application, the Federal Circuit Court found that the continuation of the contractual arrangement was at the discretion of the League and not renewing the contract did not amount to adverse action. This decision demonstrates the value of maximum or fixed term contracts where they are properly dealt with.


  • Double whammy: Employee ‘on the gas’ – Caltex Australia was recently fined $850,000 by the Environmental Protection Agency in relation to unsafe work practices that led to the spillage, by a drunk employee, of 157,000 litres of petrol that formed a toxic vapour cloud and caused another employee to develop PTSD. The employer already entered an enforceable undertaking worth $805,000 in late 2015 to avoid prosecution by WHS authorities for the same incident. The employer’s misconduct included a failure to follow its own procedure on the issuance of permits to work without supervision and a failure to carry out a risk assessment of work that was conducted in unusual and suboptimal conditions. Employers must enforce their own policies and procedures to protect their employees and their business. When dangerous work is undertaken in irregular or compromised conditions, the risks must be carefully evaluated and this process should be documented.
  • ‘Swift and expensive – In Tips and Trends: Edition 10 we reported on an employer that was prosecuted for having (and not enforcing) an ambiguous policy relating to a pedestrain exclusion zone around forklift work (see related article).  A $300,000 fine has now been handed to the employer, but this could have been even worse considering the judges observations, that the employer is “a [company] of good character”, and that its response to the incident was “swift and extensive“. This is yet another reminder of the cost that careless policy drafting and management can inflict.
  • The tooth hurts – The FWC has upheld the dismissal of an employee for failing to report to his employer that he had crashed his dump truck into a bund. The employee attempted to defend his conduct by explaining that the incident occurred after he bit into an apple and broke a tooth. He also asserted that he didn’t realise he had collided with the bund. The Commission found that he must have realised what had occurred and that by not being honest about it he placed fellow employees at risk because of the bund’s function as a safety measure. To avoid disputes, employers should take care to make it clear in their safety related policies that any breaches or known risks must be proactively and honestly reported.

If you have any queries or would like further information regarding this edition, please contact our Employment & Safety team by clicking here.

Published: 2 March 2017

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