Resources: E-updates

Employment Law & Workplace Safety E-Update – July 2017

E-updates
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Employee reinstated after employer failed to make reasonable inquiries regarding return to work

Coming soon – Casual conversion clause; FWC rejects ATCU family and domestic violence leave clause but leaves door open for narrower family and domestic violence leave entitlement; Employee reinstated after employer failed to make reasonable inquiries regarding return to work; Coming soon – Amendments to WHS law in NSW – New penalties for repeat offenders

Employment Issues

“Coming soon – Casual conversion clause”

As part of its four-yearly review of Modern Awards, the Full Bench of the Fair Work Commission (FWC) has sought to provide additional protections for casual employees in the Australian workforce.

On 5 July 2017, the FWC handed down a decision that will ensure a casual conversion clause is incorporated into all of the 85 currently existing Modern Awards that do not already have one.

The FWC has also ruled in favour of a two-hour minimum engagement period for all casual employees (rejecting a bid by the Australian Council of Trade Unions (ACTU) for a four-hour minimum engagement period).

The model clause
The model clause to be inserted, which has been drafted by the FWC, will enable casual employees to elect to convert to part-time or full-time employment subject to specified rules and restrictions.

The rules and restrictions are:

  • Casual employees must have been employed for at least 12 months before they can elect to have their employment converted; and
  • Casual employees must work a pattern of hours on an ongoing basis which, without significant adjustment, could be performed in accordance with the part-time or full-time provisions of any relevant Modern Award.

An employer cannot refuse a casual employee who elects to convert to part-time or full-time employment, unless the employer can show:

  • A conversion would require a significant adjustment to the employee’s hours of work;
  • It is known or reasonably foreseeable that the employee’s position will cease to exist;
  • The employee’s hours will significantly change or be reduced within the next 12 months; or
  • There are other reasonable grounds based on facts which are known or reasonably foreseeable.

Employers will also be obliged to provide all casual employees with a copy of the casual conversion clause within 12 months of their initial engagement.

Rationale
The FWC heard competing submissions from employer groups and the ACTU.

The submissions put forward by the ACTU were not accepted in their entirety. However, the FWC did consider the potential that “unrestricted use of casual employment without the safeguard of a casual conversion clause may operate to undermine the fairness and relevance of the safety net”.

Whilst there was no evidence to suggest that casual employees were being exploited under the laws that currently govern casual employment, the FWC could not disregard the evidence that some employees were being engaged on a casual basis indefinitely, when their employment could be more appropriately classified as part-time or full-time.

Key points for employers
This decision will clearly affect a considerable portion of the Australian workforce in most industries.

The inclusion of the model casual conversion clause is still a provisional view of the FWC, which has invited all interested parties to provide further submissions on the casual conversion clause and the minimum engagement period by 2 August 2017.

There are some modern awards that already include a casual conversion clause, such as the Manufacturing and Associated Industries and Occupations Award 2010, the Services and Retail Award 2010, and the Electrical, Electronic and Communications Contracting Award 2010.

However, for the vast majority of industries, this means that employers should now review their business structure (and, where applicable, Enterprise Agreements) to consider:

  1. Whether their casual employees are actually casual employees or might be better classified as part-time or full-time employees;
  2. Whether any of their casual employees might wish to convert their employment to part-time or full-time; and
  3. In light of the above, what the best workforce structure is for their particular business operation.

“FWC rejects ATCU family and domestic violence leave clause but leaves door open for narrower family and domestic violence leave entitlement”

4 yearly review of modern awards – Family & Domestic Violence Leave Clause [2017] FWCFB 3494

Executive Summary
The majority of the Fair Work Commission (FWC) Full Bench has rejected the Australian Council of Trade Unions’ (ACTU) application to insert a paid family and domestic violence leave clause into all Modern Awards, but has suggested that a narrower, unpaid entitlement to family and domestic violence leave should be considered.

Background
In 2014 the ACTU indentified family and domestic violence leave as an issue for consideration in FWC’s four yearly review of Modern Awards.

The ACTU proposed that a family and domestic violence leave clause be inserted into all Modern Awards, providing for 10 days of paid family and domestic violence leave per year and two days of unpaid family and domestic violence leave per occasion when the paid entitlement is exhausted.

The ACTU proposed that family and domestic violence leave be available to employees “for the purpose of attending to activities related to the experience of being subjected to family and domestic violence”.

The ACTU’s application was to be decided by a Full Bench of the FWC, but in an unusual development, former FWC Vice President Graeme Watson delivered his decision separately to the rest of the Full Bench earlier this year, before he left the FWC.

The remainder of the Full Bench, consisting of Deputy President Gooley and Commissioner Spencer, have since deliberated further and issued a joint decision.

Decision
DP Gooley and Commissioner Spencer rejected the ACTU’s application for the inclusion of its particular family and domestic violence leave clause, but formed the preliminary view that employees should have access to unpaid family and domestic violence leave in addition to being able to access paid personal/carers’ leave for the purpose of taking family and domestic violence leave.

DP Gooley and Commissioner Spencer found that the ACTU had not made out its case for the adoption of the proposed clause into all Modern Awards, however, they accepted that family and domestic violence is a pressing social issue that impacts on the workplace and should be addressed.

DP Gooley and Commissioner Spencer found that it was within the FWC’s powers under the Fair Work Act 2009 (Cth) (FW Act) to provide for a new type of leave in Modern Awards and that varying the Modern Awards was necessary to respond to changing circumstances and to meet the objectives of the Modern Awards.

DP Gooley and Commissioner Spencer rejected submissions from employer and industry groups which suggested that current flexible work and leave entitlements were sufficient to deal with family and domestic violence and found that these entitlements were not meeting the needs of employees experiencing family and domestic violence.

Further, they found that providing employees with access to family and domestic violence leave would protect employees, as it would become a workplace right capable of protection under other sections of the FW Act.

However, DP Gooley and Commissioner Spencer held that the evidence relied upon by the ACTU did not make out a case for 10 days of paid family and domestic violence leave.

They also commented that the proposed clause was not simple or easy to understand and was too broad and uncertain in its operation. In particular, the phrase “attending to activities related to experience of being subjected to family and domestic violence” was too uncertain and they preferred the view that access to family and domestic violence leave be “limited to dealing with the immediate impacts of such violence such as finding alternative accommodation or attending urgent court hearings”.

DP Gooley and Commissioner Spencer presented a preliminary view that the difficulties with the ACTU’s draft clause could be overcome by a narrower more certain clause, perhaps providing for unpaid family and domestic violence leave.

DP Gooley and Commissioner Spencer proposed providing interested parties with a draft unpaid family and domestic violence leave for their consideration in the next stage of the FWC’s four yearly review of Modern Awards.

Whilst rejecting the ACTU’s draft clause and application, DP Gooley and Commissioner Spencer were careful to note that they did not reject the view that family and domestic violence leave is a significant community issue and there should be a workplace response to it.

 

Unfair Dismissal/Adverse Action

“Employee reinstated after employer failed to make reasonable inquiries regarding return to work”

Dorris Maharaj v Northern Health [2017] FWC 2997

Executive Summary
A nurse was reinstated to her pre-injury position following her employer’s failure to make inquiries about her fitness to return to work before terminating her employment.

Background
The Employee was an ICU nurse who was involved in a non-work related car accident in May 2015, during which she sustained serious injuries. The Employee was absent from work as a result of those injuries for approximately 16 months.

In or about September 2016, the Employee was in a position to return to work, having discussed it with her treating doctor and return-to-work coordinator from the Transport Accident Commission (TAC).

The TAC return-to-work coordinator also made contact with the Employee’s Employer in an attempt to set up discussions regarding the Employee’s return to work.

However, there was a breakdown in communication between the treating doctor, the Employer and the TAC return-to work-coordinator, which resulted in the Employee’s employment being terminated in mid-September 2016.

The Employer provided the Employee with a termination letter citing her inability to perform the inherent requirements of her job as the reason for termination of her employment.

The Employee subsequently claimed that she was unfairly dismissed and made an application to the FWC.

Decision
The FWC found that, had the Employer made reasonable enquiries prior to termination, it would have found that the Employee was fit to return to work.

The Employer had based its decision to terminate the Employee’s employment on a medical certificate issued by the Employee’s treating doctor, which certified the Employee as having no capacity for work, but which noted that the Employer should consult with the TAC return-to-work coordinator regarding a return to work plan. The Employer did not make any such inquiries.

The treating doctor gave evidence that her opinion about the Employee’s capacity was made on the basis that she had not received any information from the Employer or the TAC return-to-work coordinator about what duties the Employee would be likely to perform. In the absence of such information, the treating doctor was unable to ascertain whether the Employee had capacity for work or not. The treating doctor commented that there seemed to be a lack of meaningful dialogue between the TAC return-to-work coordinator and the Employer.

The FWC found that at least one employee who was involved in the decision to terminate the Employee’s employment knew the Employee had some capacity to work but failed to make further inquiries.

On this basis, the FWC found that the Employer did not have a valid reason for dismissing the Employee.

The FWC also found that the Employee was not notified of the reasons that her employment was at risk prior to a decision being made, nor was she provided with an opportunity to respond to those reasons.

The Employee was denied procedural fairness and the dismissal was unreasonable.

The Employee was granted the primary relief for unfair dismissal and was reinstated.

What can your business learn from this decision?
Employers should make reasonable inquiries regarding an employee’s fitness for work before making a final decision to terminate their employment. This may include consultation with the employee, any external return-to-work coordinators, treating doctors and/or specialists.

Furthermore, employers should provide employees with the reasons for considering the termination of employment and the opportunity to respond to those reasons prior to a final decision being made.

 

Work Health and Safety

“Coming soon – Amendments to WHS law in NSW – New penalties for repeat offenders”

The NSW Government has conducted a mandatory statutory review of the Work Health & Safety Act 2011 (NSW) (WHS Act) and recently published a report titled “Work Health and Safety Act 2011 Statutory Review Report – June 2017” (the Report), in which it made 11 key recommendations.

Scope of the review
The statutory review, which was to be conducted five years after the WHS Act commenced operation, was limited to those provisions in the WHS Act that are specific to NSW, as distinct from those that form the Model WHS laws.

The central question of this review was whether the NSW-specific terms still achieve valid WHS purposes.

Findings and recommendations
Overall, the review concluded that those terms within the WHS Act remain valid and are generally appropriate to secure WHS objectives.

However, the review did identify a number of provisions that should be amended.

Of particular significance, the review raised concerns that the penalties associated with breaches of the WHS Act, such as those relating to heights, are not effectively deterring PCBUs from repeatedly breaching the WHS Act.

It noted a “gap” that presently exists between the issuing of penalty notices and higher level sanctions that are only imposed after an incident has occurred.

A recommendation was made to increase penalty notice offences “to send an early signal to non-compliant PCBUs that non-compliance is unacceptable”.

In summary, the recommendations outlined in the Report that would have the most significance for employers, if implemented, are:

  1. The introduction of new penalty notice offences to include breaches of:a. the requirements for authorisation of work (section 43 of the WHS Act); andb. Part 4.4 of Chapter 4 of the WHS Regulation on “falls”.
  2. A review of whether any other penalty notice offences should be included.
  3. A review of the adequacy of the current penalty notice amounts specified in the WHS Regulation.
  4. An extension of the Regulator’s powers to extra-territorial application of the WHS Act, to the extent that the State’s legislative power allows, to obtain records and issue notices outside of NSW. This is similar to powers already granted in South Australia, the ACT and the Commonwealth.
  5. Express provision in the WHS Act that consent is not required for an interview to be recorded by an inspector, subject to the interviewee being given notice that the interview is being recorded.
  6. Introduction of a consultation forum in which Regulators and unions might be able to develop and share advice and assistance and also resolve issues.
  7. Changes to electronic communication including:a. the service of penalty notices by electronic means; andb. the removal of facsimile as means for accepting notifications of incidents.
  8. Clarification as to who is a duty holder for the storage and handling of certain dangerous goods or for the operation or use of high risk plant when not at a workplace.
  9. A review on technical arguments on the appointments and delegations of the Regulator in bringing WHS proceedings, which detract from the real substance of proceedings.

Implementation
The Report was tabled in the NSW Parliament on 22 June 2017 and it is expected these recommendations will be accepted and implemented by the end of this year.

Employers should closely monitor the passage of these recommendations into State legislation.

In the meantime, steps should be taken by employers to review work, health and safety practices within their workplace to ensure compliance in all aspects of work, health and safety regulations – before more stringent penalties are introduced.

It should also be noted that there is a further review of the WHS Act scheduled to be conducted in 2018, with particular focus on the Model WHS Act that will include the Commonwealth, States and Territories.

 

Need a laugh…

Q: Did you hear about the cheese factory explosion in France?
A: There was nothing left but de brie.

Q: What lies at the bottom of the ocean and twitches?
A: A nervous wreck.

 

Should you require any further information or assistance, please contact our Managing Director Athena 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.

 

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