Employment & Safety – Tips and Trends: Edition 2


  • Union Rights of Entry – Employment Minister Michaelia Cash has stated that the Turnbull government will pursue changes to workplace laws covering union right of entry by placing “sensible limits” on union workplace visits (there is a current ability to make application to FWC to limit excessive IR discussion visits) and repealing the requirements for employers to provide accommodation and transport to visit remote work sites (there is a current ability to obtain reasonable reimbursement for such visits). This is an area to watch for industries with a strong union presence. We will keep you updated.
  • Double Dipping for Remedies – The FWC has prevented a general protections application where an employee was seeking to ‘double dip’ by lodging claims in different jurisdictions. The employee in Hazledine v Waverley and Gidding [2016] FWC 4989 had previously lodged a complaint in relation to the same circumstances surrounding her dismissal with the Australian Human Rights Commission. This case is a reminder that some claims can be cut off before excessive costs are incurred and the possibility of jurisdictional objections should not be overlooked.
  • Visa Holders – Recent statistics provided by the Fair Work Ombudsman show that 73% of all litigation initiated in the 2015-2016 financial year involved visa holders. The majority of claims originated from the accommodation and food services sector, the agriculture, forestry and fishing and administration and support service sectors. In light of these statistics, it is more important than ever for businesses employing visa holders ensure that they are complying with the relevant legislation.


  • Mobile Mayhem – Most businesses are aware of the negative effect personal mobile phone use can have on productivity and recent incidents involving the now-notorious Pokemon Go have shown that it can create safety hazards too. What may be less obvious is that even legitimate work-related mobile phone use can be problematic from a safety standpoint. The National Road Safety Partnership warns that employers should consider whether they are inadvertently requiring employees to use mobile phones while driving. It is recommended that employers consider a workplace policy which allows mobile phone use in vehicles (assuming road laws are complied with) but explicitly affirms that it must be done safely. Examples include a requirement to only answer calls when safe to do so and to use voice activated and other hands free dialling where available.
  • Reckless Conduct Prosecutions – There have now been three prosecutions for reckless conduct under s 31 of the harmonised Work Health and Safety Act nation-wide. Reckless conduct is in the most serious category of offending under the act and fines can reach $600,000 for individuals and $3,000,000 for corporations. The latest instance occurred in New South Wales when a non-worker was electrocuted in a residential property because of problems with the electricity supplied through the quarry next door. Charges were also laid in the ACT in 2014 (subsequently dropped this year) and in SA in April 2016.
  • Principal’s Duty of Care – The New South Wales Court of Appeal has upheld a determination that a principal didn’t owe a duty of care to the employee of a subcontractor in Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209. The employee injured his back while lifting boxes in a freight depot. The court confirmed that no duty of care existed because the principal did not control the work environment in which the injury occurred or exercise day to day control over the subcontractor or their employees. Previous cases have confirmed that principals can be liable for the conduct of subcontracted employees under certain circumstances. This decision has further clarified the extent of that potential liability.

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