Employment & Safety – Tips and Trends: Edition 3


  • You are on notice – The Federal Circuit Court in McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 has clarified that the minimum notice period provided for by the National Employment Standards (NES) is a minimum only (not a maximum) and does not displace a right to imply a term of reasonable notice. Courts will still have discretion to imply a term of reasonable notice where an employment contract does not expressly contain a termination clause or notice period. This means that employers, in some circumstances, will be required to provide notice beyond the requirements of the NES. It is important to ensure that you have express notice provisions in your contracts rather than leaving the issue of adequate notice periods open to interpretation by the Courts.
  • Liability in the modern workplace – The liability of employers for their employees’ actions outside of the workplace is constantly evolving. In the recent decision of Demasi v Comcare (Compensation) [2016] AATA 644, an employee who was working from home made a workers’ compensation claim arising out of an injury sustained when she went for a run. Although her claim ultimately failed, the Commissioner made the factual finding that, on the day of her injury, the employee’s home was her place of work but that the place of ‘her run’ was not. This decision follows on from the infamous High Court case in 2013 where an employee unsuccessfully claimed that injuries sustained when she was having sex on a work trip were caused during the course of her employment.
  • When to outsource your investigations – In Cao v Metro Assist Inc [2016] FWC 5592, Fair Work Commissioner Deputy President Sams recommended that employers engage an independent third party to conduct investigations where they are concerned that an employee will take issue with the transparency or independence of an internal investigation. This is an important reminder to act quickly and ensure the correct process is followed where an interpersonal conflict arises in your workplace.


  • Survey Identifies Lack of Workplace Mental Health Policies – A survey commissioned by the law firm Minter Ellison has found that 74% of the 226 organisations surveyed don’t have any “specific formal policies or procedures for managing staff mental health issues”. The same survey indicated that 44% of participants reported a suicide or attempted suicide by a worker within the last two years. We strongly advise that employers treat risks to mental health as seriously as they would treat risks to physical safety and a formal policy is a good first step.
  • Updated Worker Representation and Participation Guide – Safe Work Australia released an updated guide to worker representation and participation earlier this year. The guide clarifies certain basic matters in relation to entry rights of permit holders and emphasises the importance of adhering to the requirements imposed by law and by permit conditions. PCBUs are no longer required to submit an up-to-date list of Health and Safety Representatives to their regulator; it is sufficient to display an up-to-date list in the workplace. We recommend all PCBUs review this guide.
  • First Prosecution for Breach of Consultation Duty – The first prosecution for a breach of the ‘consultation duty’ under section 46 of the Harmonised WHS Act occurred in South Australia this year and resulted in a $12,000 fine (after 40% reduction for an early guilty plea). Boland v Trainee and Apprentice Placement Service [2016] SAIRC 14 concerned a labour hire organisation that did not properly consult with the host employer to identify the safety risks at the work site where it placed an apprentice and failed to ensure that adequate measures were in place to minimise WHS risks. The apprentice was injured through contact with power lines. The consultation duty is one of the more novel features of the harmonised legislation and we can expect to see more prosecutions of this nature in the future.

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


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