Modern Awards

“FWC abandons Abandonment of Employment”

4 yearly review of modern award – Abandonment of Employment [2018] FWCFB 7433

The Full Bench of the Fair Work Commission has removed the abandonment of employment clauses from the six modern awards that had included such clauses:

  • Manufacturing and Associated Industries and Occupations Award 2010;
  • Business Equipment Award 2010;
  • Contract Calls Centres Award 2010;
  • Graphic Arts, Printing and Publishing Award 2010;
  • Nursery Award 2010; and
  • Wool Storage, Sampling and Testing Award 2010.

The decision was reached after an examination of the operation of those clauses against the provisions of the Fair Work Act 2009 (Cth), including the Act’s provisions relating to matters that are required or permitted to be covered by modern awards.

The Full Bench concluded that abandonment of employment was not a matter required or permitted to be included in the modern awards, and clauses dealing with that matter should therefore be deleted.

Deletion of the abandonment of employment clauses from the relevant modern awards took effect in late December 2018.

Employment Issues

“Full Bench considers scope of reasonable business grounds when refusing flexible working arrangements”

Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria [2019] FWCFB 305

Executive Summary

An employer has failed to convince the Full Bench of the Fair Work Commission on appeal that a potential restriction on an employee’s ability to perform overtime was a reasonable business ground for denying his request for a flexible working arrangement.

Background

This matter concerned an application made by an employee of Victoria Police to the Fair Work Commission (FWC) to deal with a dispute in accordance with the enterprise agreement applicable to his employment – the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015

The dispute concerned a request by the employee for his working hours to be changed from 8-hour shifts over 5 days a week, to 10-hour shifts over 4 days a week, to be reviewed in 12 months. The reasons for this request were that he was 58 years old, had been working as a police officer for 31 years and sought assistance to transition into retirement.

The employer refused the request for the following reasons: 

  • such an arrangement would limit the employee’s ability to perform overtime and be recalled to duty, which was an inherent requirement of his position; and
     
  • as the employee on average already worked additional hours after each shift and the employer prepaid employees for regular incidences of overtime (Commuted Overtime), the arrangement would impose an unreasonable financial burden as the employee would effectively be paid twice for the same work.

In the proceedings at first instance, the employer sought to rely on further reasons for refusing the request for flexible working arrangements, including:

  • even if the costs incurred by the employer in such an arrangement would remain unchanged, it would lose a resource for one day a week;
  • granting the proposal would be damaging to the morale and effectiveness of the unit in which the employee worked; and
  • elements of the employee’s role as a detective were not suited to the proposed arrangement.

First instance decision

Relying on an analysis of calculations provided to the FWC by the employer, the FWC concluded that the employee would likely have less capacity to perform Commuted Overtime under the proposed arrangement. However, it considered that, whilst it was a likely restriction, it was not significant and was not a strong enough reasonable business ground on its own to refuse the employee’s request. 

In relation to the balance of the reasons raised by the employer, the FWC found: 

  • the additional costs to be imposed on the employer were notional and not actual, and therefore could not be found to be a reasonable business ground;
  • there was insufficient evidence put forward by the employer to support the arguments that the arrangement would damage morale and effectiveness, and result in a loss of resources; and
  • it could not, on the evidence, find that the employee would be impeded in undertaking his role as a detective if the arrangement was put in place.

The FWC also noted that the additional reasons put forward by the employer after its initial refusal should only be regarded as “purported reasons and not actual reasons”, stating that, “having chosen its colours it must then reasonably be expected to be constrained by them”. 

It therefore determined that the employer had no reasonable business grounds for refusing the request for flexible working arrangements.  In its decision, the FWC also commented that it was clear that the employer was concerned that granting such a request would open the floodgates for similar applications. In this regard, it noted that such requests were to be assessed on their individual merits but nonetheless, employers were entitled to take into account the working arrangements of other employees when considering reasonable business grounds.

Full Bench Decision 

On appeal, the employer argued that the FWC had erred in its finding that the restriction on overtime would be “minor”. However, the Full Bench rejected this argument and found that there certainly did not appear to be any significant and adverse impact on the business if the request was granted. 

The Full Bench considered that the fact that the employer wanted a different outcome on matters that were properly considered by the FWC at first instance was not a sufficient basis to find that the FWC had erred in its initial decision.

It also noted that the request was not for an indefinite period and the employer was entitled to review how the arrangement impacted the business after 12 months.  The Full Bench therefore dismissed the appeal.

What can your business learn from this decision?

This case has a number of lessons that employers should be mindful of when dealing with requests for flexible working arrangements:

  • if a request for a flexible working arrangement is to be refused, employers must ensure that they have reasonable business grounds for such a refusal. The FWC has shown that even if the business may be adversely impacted by such an arrangement, it will consider whether the impact is so significant that it warrants a refusal;
  • the FWC has shown that it will not look favourably on reasons for refusal that are not put to the employee at the first instance; and
  • whilst requests for flexible working arrangements should be considered on their individual merits, employers are entitled to consider the working arrangements of other employees when considering reasonable business grounds.

“Start-up penalised for underpayment of intern” 

Fair Work Ombudsman v Her Fashion Box Pty Ltd & Anor [2019] FCCA 425

Executive summary

The Federal Circuit Court of Australia (FCCA) has penalised a start-up company and its sole director a total of $329,133 for underpaying its employees, including an unpaid intern who, according to the FCCA, was a part-time employee.

Background  

Her Fashion Box Pty Ltd was a start-up company set up and run by Kathleen Purkis (the director), its sole director and majority shareholder. The company employed three people – a graphic designer (initially engaged as an intern), a team manager (initially engaged as a graphic designer) and a brands partnership manager.

The graphic designer was initially engaged as an intern in July 2014 and worked on average two days a week without pay for two months. The director advised the intern that she would be able to offer her full-time employment as a graphic designer within the business once she had received money from investors and accordingly the intern continued to work without pay. Despite requesting payment for the hours worked, the intern received only $1,000 as a “Christmas bonus”. She eventually left employment with Her Fashion Box seven months after her initial engagement.

The team manager was engaged in March 2014 for a period of two years, initially as an independent contractor and then an employee. Under his employment contract, his salary was to increase from $30,000 to $40,000 once Her Fashion Box had received money from investors.  During this period his payments were either delayed, less than what he was entitled to or not paid at all.

The brands partnership manager was also initially engaged in March 2014 as a marketing intern for a period of 15 weeks. Upon the completion of her internship, the director advised the intern that she was expecting a large investment and she would therefore be able to offer her full-time employment. Accordingly, the intern commenced full-time work as the brands partnership manager. She was then offered full-time employment on a salary of $24,000 with the promise that it would be increased after three months when Her Fashion Box could afford to pay her more. Whilst payments were initially made, eventually Her Fashion Box ceased paying her altogether although it offered to make ‘micro-transfers’ of $100-$200 if necessary, to cover transport and/or food.

In April 2015, the Fair Work Ombudsman (FWO) commenced an investigation into the alleged underpayments by Her Fashion Box of these three employees.

Her Fashion Box and the director admitted the contraventions and the underpayments were eventually remedied in April 2017, which totalled $40,543. However, the director argued that she had no prior experience managing a business and was not aware of the legal obligations relating to internships and employment generally.

Decision

The FCCA found Her Fashion Box had contravened multiple sections of the Fair Work Act 2009 (Cth) relating to the payment of minimum employment entitlements and for failing to comply with notices to produce records or documents in respect of the relevant employees. The FCCA also found that the director was involved in these contraventions and therefore also accessorially liable.

In determining the extent of the penalties to be imposed, the FCCA rejected the director’s suggestions that she had no knowledge of the legal obligations relating to internships and employment entitlements. In this regard, it noted that the Statement of Agreed Facts stated that she knew that an award applied to the employees and that the award contained minimum rates of pay. The FCCA also noted that in the course of her interview with the FWO, the director referred to “award wages” numerous times.

The FCCA was of the view that, even if the director was entirely ignorant of these obligations, she was aware that the employees had performed work for which they were entitled to be paid under the arrangements they had agreed to.

The FCCA also rejected any suggestion that the financial losses recorded by Her Fashion Box could explain why the employees were not paid. It noted that even though the business was generating losses, it still traded and there was no evidence to suggest that if the employees were paid their entitlements that the business could no longer trade.

The FCCA was of the view that, even if this were the case, this would be an aggravating factor in circumstances where “HFB was inducing [the employees] to perform work in circumstances where HFB could not have believed, or could not have reasonably believed, it would be able to pay them for their work.”

It also rejected any suggestion that the small size of its business should result in any diminution of the penalties noting that small businesses have an obligation to meet minimum employment standards and employees have a rightful expectation that this will occur.  The FCCA ordered that Her Fashion Box pay penalties totalling $274,278 and the director pay penalties totalling $54,855.

What can your business learn from this decision? 

This decision is a powerful reminder to employers that the practice of engaging interns is one that will be closely monitored by the FWO and the Courts. 

Unpaid placements in Australia are lawful only to the extent that they are part of a vocational placement related to a course of study or are a period of genuine work experience for a short period where work is observed, but not performed. Employers, particularly small businesses and start-ups, should therefore tread carefully when seeking to engage unpaid interns. As this case demonstrates, the Courts do not look favourably on employers who seek to exploit unpaid placements when the intern is performing work that should actually be done by a paid employee, regardless of their size.

“Family and domestic violence leave guide launched” 

WorkSafe Victoria have launched an excellent information guide “Addressing family violence in the workplace” to help employers manage their responsibilities to all employees when it comes to the navigating work health and safety and the new family and domestic violence leave entitlements. Many of WorkSafe Victoria’s recommendations mirror those we suggested in our recent blog ”Handle with care”.

While Victoria has not adopted the national model Work Health and Safety legislation, the general principles about the impact of family and domestic violence and, health and safety at work are relevant to employers in all States and Territories. If you would like our assistance with implementing a workplace strategy (including education, training and policy drafting) for family and domestic violence leave at your workplace please contact Shane Koelmeyer on (02) 9256 7500.

Industrial Issues

“Full Court rejects ALDI’s ‘trivial’ change to bargaining notice” 

ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association [2019]

Executive summary 

The Full Court of the Federal Court of Australia confirmed a decision of the Full Bench of the Fair Work Commission (FWC) to reject two enterprise agreement applications made by ALDI Stores Foods Pty Ltd as General Partner of ALDI Stores (ALDI). 

Background

Under the Fair Work Act 2009 (Cth) (FW Act), strict compliance with a number of provisions is required in order for the FWC to be able to approve an enterprise agreement.  One such provision relates to the giving of the Notice of Employee Representational Rights (Notice). The FW Act states that the Notice must be given in a form specified by the Fair Work Regulations 2009 (the FW Regulations).

The FW Regulations contain a template of the Notice which indicates where certain sections of the Notice require input before being issued to employees. These sections include such things as the name of the employer and the group of employees proposed to be covered by the agreement. 

The final paragraph of the Notice states (emphasis added):

Questions? 

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative or go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number]. 

In the present case, ALDI had amended this final paragraph of the Notice and had replaced the word “employer” with “leader” prior to issuing the Notice to employees involved in bargaining for two agreements. 

When the agreements came before a single member of the FWC for approval, they were rejected on the basis that ALDI had not complied with the terms of the FW Act in relation to the Notice, because it had amended the template wording of the Notice. This meant that the Notice was deficient and in turn, that ALDI’s employees could not genuinely agree to the agreements. 

ALDI appealed that single member decision to the Full Bench of the FWC. ALDI claimed that the change of the word from “employer” to “leader” was a more accurate reflection of its business and was, in any event, a trivial change that should not invalidate the Notices. 

The Full Bench held that the change was not trivial, but served to limit the persons to whom employees could direct questions about the agreement or bargaining process. Accordingly, the Full Bench rejected ALDI’s appeal. You can read about this decision in more detail in our blog “Take me to your leader.”

Full Court of the Federal Court of Australia decision

ALDI then appealed the decision of the Full Bench of the FWC to the Full Court of the Federal Court of Australia. 

The Full Court reviewed the reasoning of the Full Bench and the single member of the FWC, as well as the case law on the issues. It found that the conclusions of the Full Bench were open for it to make and were not affected by any jurisdictional error.  ALDI’s application was therefore dismissed.

What can your business learn from this decision?

Strict compliance with the procedural provisions of the FW Act in relation to agreement making is essential to ensure smooth passage through the FWC.

Deviations in the process can result in agreements being denied approval, sending an employer and its employees back to step one of the bargaining process.

We note that recent amendments to the FW Act have aimed to address “minor procedural or technical errors” made in the process of issuing the Notice, such as typographical errors.

However, the change in wording made by ALDI was not considered “trivial” by the Full Bench and so whether the outcome would have been different had the FW Act amendments applied to the agreements in question is questionable. Employers can also find out more about the agreement making process in the FWC’s Enterprise Agreement Making Guide and Guide to the Notice of employee representational rights.

Bullying, Harassment and Discrimination

Employee awarded $150,000 in damages following sexual harassment in workplace”

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259

Executive summary

The Victorian Civil and Administrative Tribunal (the Tribunal) awarded $150,000 in damages to an employee who was sexually harassed by a supervisor in the course of her employment.

The employer was held vicariously liable for the supervisor’s conduct.

Background

The employee worked in the office of an employer that manufactured steel products in Victoria.

The employee worked for the employer for just 12 days in 2016. Following the end of her employment, the employee lodged a claim for damages in the Tribunal alleging that she was sexually harassed in the workplace by a supervisor, including one particularly traumatic episode when the supervisor drove the employee home from work when she was unwell.

In support of her claim, the employee described that while she was at work in the office the supervisor addressed her with nicknames such as “baby”, “sexy”, “honey” and “sweetie”. He also made sexual comments about her body, stared at her and made generally unwelcome comments of a sexual nature to her.

The employee described a particular occasion where she was leaning over her desk to complete work and the supervisor said to her “stay there, your ass looks better when you bend over like that.”

On what turned out the be the employee’s last day of employment, the employee claimed that she began to experience an episode of illness on her way into work. Upon arriving at work, her condition continued to worsen and she became faint, nauseous and unsteady on her feet. On the basis that she was too unwell to take the tram home from work, a manager directed the supervisor to drive the employee home.

The employee described that, upon arriving at her home, the supervisor proceeded to massage her neck and upper body while they were in the car. The employee was finding it difficult to walk and required assistance to enter her home.

Once inside, the employee went straight to her bed.  The employee said that the supervisor got onto the bed with her and touched her breasts and her back and tried to unfasten her bra. He kissed her on the head and said “you are so vulnerable, I could do anything to you right now,” and that she was making him “horny.” The employee repeatedly said to the supervisor, “I just want to go to sleep, I’m going to be sick.

Following this episode, the employee made a complaint directly to her employer about the sexual harassment.

The manager and one of the directors of the employer discussed the complaint. They doubted the employee’s version of events on the basis that they did not think that the supervisor knew what the word “vulnerable” meant.

The manager asked the supervisor if he knew what vulnerable meant, to which the supervisor responded that he did not.

The employer then denied that employee’s claims were true.

Victorian Civil and Administrative Tribunal decision

The employee brought an application under the Equal Opportunity Act 2010 (Vic) seeking damages from the supervisor and the employer on the basis that the supervisor had committed sexual harassment in the workplace and the employer was vicariously liable for his conduct.

During the hearing of the matter, the supervisor was essentially represented by the employer, which in turn, was represented by its two directors. The directors were not legally represented in the hearing but they did receive legal advice before and during the hearing.

The Tribunal found the evidence of the supervisor to be unreliable and described him as evasive. The Tribunal also became aware of an obvious attempt by the supervisor to mislead it by influencing the evidence of another witness, which negatively impacted on his credibility.

The evidence of other witnesses of the employer was also treated with caution, with the Tribunal noting that much of that evidence did not go to whether or not the events described by the employee occurred.

Ultimately, the Tribunal preferred the evidence of the employee and the employee’s witnesses over that of the employer, the supervisor and their witnesses.

The Tribunal found that it was more likely than not that the sexual harassment described by the employee had occurred and that the employer was vicariously liable.

The employee claimed that as a result of the sexual harassment, she had developed post-traumatic stress disorder. This was supported by the expert evidence of a number of doctors. The employer attempted to discredit the employee by alleging that she had experienced a previous, unresolved episode of mental illness and that any current illness was a continuation of a pre-existing condition. This argument was not supported by the evidence of the experts and was therefore not accepted by the Tribunal.

The Tribunal noted that the defences set out in the relevant legislation, namely that the employer had taken reasonable steps to prevent the sexual harassment, were not pressed by the employer and were not made out.

The Tribunal ordered that the supervisor and the employer jointly pay $130,000 to the employee by way of damages for pain and suffering resulting from the sexual harassment.

The Tribunal further ordered that the employer pay $20,000 in aggravated damages to the employee as a result of its conduct throughout the whole matter, including its poor investigation of the employee’s complaint, its inappropriate cross-examination of the employee in relation to her previous mental illness and its “cavalier” approach to the contamination of the evidence of its witnesses.

What can your business learn from this decision?

Sexual harassment in the workplace is unacceptable under any circumstances and employers have a responsibility to take reasonable steps to ensure that it doesn’t occur. Where sexual harassment does occur and reasonable steps have not been taken to prevent it, an employer can be held vicariously liable for the actions of an employee and can be ordered to pay significant sums in damages.

Work Health & Safety

“Company directors convicted for failing to comply with officer duty to exercise due diligence”

Executive summary

Two recent decisions from the NSW District Court involving prosecution of officers demonstrate the need to have proper safety systems in place. In the first case, a director failed to demonstrate that he exercised due diligence after a worker suffered an injury to her hand when it was caught in a machine, while in the second case, an owner operator was convicted after he failed to follow a Code of Practice when a heavy air conditioning unit fell down stairs and onto an apprentice, causing injury.

SafeWork NSW v Confeta Pty Limited; SafeWork NSW v Antoniou [2018] NSWDC 392

Background

Confeta Pty Ltd (Confeta) operated as a manufacturer of packaging for food products including baking cups and boxes. One of the machines used by Confeta was a folded cup machine which stamped and folded a piece of paper into a baking paper cup. Mr Antoniou was one of three directors of Confeta and the sole director responsible for the daily management and control of Confeta. Confeta also employed a Creative and Compliance Director who was responsible for work health and safety.

The worker commenced employment on 1 August 2012 and a few days later was assigned to operate the folded cup machine. The machine had no guards and it was permissible for an operator to put a hand in the machine whilst operating a pedal which would form the cup shape. Initially, a machine operator explained to the worker how to use the machine but did not demonstrate to the worker how to use it, and left after the worker alone to operate the machine. Confeta’s production manager and supervisor then instructed the worker on how to feed paper in the machine in a way that was different from what was earlier explained to her. The production manager told the worker to work harder and then also left the worker to operate the machine on her own. While operating the machine unsupervised, the worker suffered a crush injury to her right hand.

The incident was a “notifiable incident” under section 35 of the Work Health and Safety Act 2011 (NSW) (WHS Act). Section 38 of the WHS Act requires a person conducting a business or undertaking (PCBU) to notify SafeWork NSW of a notifiable incident immediately after becoming aware of the incident.

Confeta did not notify SafeWork NSW of the incident and the regulator only became aware of the incident after the worker’s solicitor requested information from them.

Confeta was charged with and pleaded guilty to:

  • failing to comply with a work health and safety duty and exposing the worker to risk of death or serious injury;
  • failing to notify SafeWork NSW of a notifiable incident immediately after becoming aware; and
  • disturbing the incident site prior to the arrival of an inspector or earlier than directed by an inspector.

In addition, Mr Antoniou was charged with and pleaded guilty to failing comply with his duty as an officer to exercise due diligence to ensure that Confeta complied with its duty, thereby exposing the worker to risk of death or serious injury.

Confeta did not have a written and accessible safety system in place. Its risk assessment processes in relation to machinery simply comprised of Mr Antoniou conducting a visual inspection of the machines and how they operated and then determining what level of instruction was needed.

While a risk assessment conducted into this particular machine identified the risk of a worker’s hand coming into contact with moving parts and for something to be caught in the machinery, there were no documented safe working procedures for its operation and no operator manual available. Further, while undocumented measures were developed, there was no consideration of whether sensing devices or two-handed operated controls should have been implemented.

Similarly, Confeta’s training system required employees to undertake a general safety induction. For the folded cup machine, new employees were to assist with paper folding for one month before being trained on how to operate the machine. There was no induction record for the worker and no record that the worker’s training complied with Confeta’s training process.

With respect to Mr Antoniou’s due diligence duty, he submitted that he had relied upon statements from Confeta’s Compliance Director that Confeta had documented work health and safety policies but he neither requested a copy of the documents or independently checked that documents were maintained. As a result, he only discovered after the incident that Confeta had no documented work health and safety policies or procedures and that there were previous incidents involving the machine. In his defence, Mr Antoniou also claimed that he regularly attended Confeta’s premises and conducted audits of its safety compliance annually in order to verify that work health and safety processes.

In relation to the failure to report the notifiable incident, Confeta submitted that the incident was reported to its insurer and its assumed that the claim number meant that it did not have to notify the regulator.

Decision

The District Court held that Confeta failed to undertake a documented risk assessment in accordance with the Australian Standard Safety of Machinery, Risk Assessment – Principles of Risk Assessment.  In particular, there was no consideration of how to minimise or eliminate the risks of the folded cup machine. Confeta also did not develop Safe Work Method Statements or provide protective equipment, signage or supervision for workers. The Court found that the risk of injury was known to Confeta given that there were two previous incidents where workers suffered serious injury to their hands whilst operating the folded cup machine. The Court was satisfied that the offence fell into the mid-range of seriousness.

In relation to the offences for failing report a notifiable incidence and preserving the incident site, the Court found that Confeta’s level of culpability fell in the low range. It noted that while it would not have been an onerous task for Confeta to comply, it was not an uncommon misconception that all that is required is to notify the insurer of an incident.

The Court convicted Confeta of the offences under the WHS Act and ordered Confeta to pay total of $157,500 in fines plus costs.

With respect to Mr Antoniou’s culpability, the Court also had regard to his failure to conduct a proper risk assessment, implement measures to eliminate risks to health and safety, provide protective equipment, signage and supervision. It found that his level of culpability fell in the lower end of the mid-range of seriousness.

The Court dismissed submissions that Mr Antoniou not have a conviction recorded but rather, have a bond imposed, stating that:

Mr Antoniou was the directing mind of the corporate business. A director cannot be expected to run every part of the operation, and for that purpose corporations employ managers and specialists, particularly in work health and safety matters. However, Mr Antoniou had an obligation to exercise due diligence to ensure that those under him were carrying out their duties properly.

In addition, the Court was sceptical that Mr Antoniou had gained an understanding of the business given that he did not know of prior similar incidents and query what was discussed in yearly work health safety reviews given there were no documented work health safety procedures. The Court held that:

Due diligence would have required the director to ask to see those documents. Mr Antoniou could have, and should have, become aware of the prior incidents and the obvious risks to health and safety arising out of the use of this unguarded machine.

Accordingly, Mr Antoniou was convicted of failing to comply his duty as an officer, fined $25,500 and ordered to pay the prosecutors costs.

SafeWork NSW v Shaun David Scott Mehan [2018] NSWDC 391

Background

Mr Mehan was the sole director of Sydney Mechanical & Air Conditioning Services Pty Limited (the Company). The Company supplied, delivered, installed and serviced air conditioning systems and had been contracted to supply, deliver and install an air conditioning unit in a restaurant and bar located in the basement of a building in the Sydney central business district.

Two apprentices employed by the Company and Mr Mehan were to transport the air conditioning unit weighing 525kg from the street level of the building down stairs to the basement restaurant and bar. Mr Mehan held a toolbox talk onsite where it was discussed that the unit would be unloaded from a dolly to the top of the stairs, and then manually transported down the stairs.

Mr Mehan and the two apprentices were moving the air conditioning unit down the stairs, walking backwards and holding the weight of the air conditioning unit against them. Toward the bottom of the stairs, one of the apprentices was unable to withstand the weight of the unit and all three workers lost control of the unit, causing it to fall down the stairs and onto the apprentice. The air conditioning unit pinned his lower torso and legs and caused him to suffer lacerations and a partial de-gloving of his foot.

SafeWork NSW charged Mr Mehan with an offence of failing in his duty as an officer to exercise due diligence to ensure that the Company complied with its health and safety duty and thereby exposing two workers to a risk of death or serious injury. Mr Mehan pleaded guilty to the offence.

Decision

The NSW District Court noted that the transportation of the air conditioning unit was a “hazardous manual task” as defined by the Work Health and Safety Regulation 2011 (NSW) and the Safework NSW Hazardous Manual Tasks Code of Practice 2011 (Code) and was a task which required compliance with the Code.

The Court held that the Company did not have use of mechanical devices to assist with transportation, did not provide appropriate training or instruction, and did not conduct an adequate risk assessment. It found that the safe work method statement in place did not address manual handling risks, including the risk of manually moving the air conditioning unit from street level to the basement.

The Court convicted Mr Mehan, and ordered him to pay a fine of $7,500, reduced from $30,000 on the basis of his incapacity to pay and his early guilty plea.

What can your business learn from these decisions?

The work health safety duty for officers is a personal one and is imposed on officers separate to the duty owed by the PCBU.

The duty requires officers to exercise “due diligence” to ensure that the PCBU complies with the primary duty of care to ensure the work health and safety of workers. The WHS Act sets out the key components which comprise part of exercising due diligence, and officers must be prepared to demonstrate how they have complied with their due diligence duty.

Workers Compensation

NEWS ALERT: Workers compensation legislation amendments have commenced

In October 2018, the Workers Compensation Legislation Amendment Act 2018 (NSW) (Amendment Act) was assented to, with some amendments commencing from 1 January 2019.

Most relevantly, the amendments provide that the NSW Workers Compensation Commission (the Commission) will now have jurisdiction to determine work capacity decision disputes. Previously, the Commission had no jurisdiction to deal with work capacity decision disputes and could only make awards consistent with a work capacity decision.

For work capacity decisions made on or after 1 January 2019, proceedings may be commenced in the Commission. Depending on the nature of the dispute, this can either be through the Commission’s expedited assessment process or the normal dispute resolution process.

The Amendment Act also introduces the power for the Commission to award permanent impairment compensation in disputes concerning the degree of permanent impairment. Previously, all permanent impairment disputes were to be referred to an Approved Medical Specialist (AMS) for the assessment of the worker’s degree of permanent impairment. The Commission’s Practice Direction 11 provides that in appropriate circumstances, disputes relating to the degree of permanent impairment may be referred to an Arbitrator for conciliation and the Arbitrator may determine the dispute in accordance with the available evidence. An Arbitrator’s decision about the degree of permanent impairment may be appealed to a Presidential member.

Other changes which have not commenced as yet relate to the calculation of Pre-Injury Average Weekly Earnings. It is expected that these amendments will commence during the year.

For further information relating to the Amendments, please refer to the NSW State Insurance Regulatory Authority.

Need a laugh…

Q: Why do cows have hooves instead of feet?
A: Because they lactose.

Q: Why shouldn’t you tell a secret on a farm?
A: Because the potatoes have eyes and the corn has ears!

Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website.  Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.


Workplace Relations Review – Special E-update February 2019