Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...Organisations have obligations to ensure the health and safety of their employees. One way for organisations to manage the risks is by making use of pre-employment medicals (PEMs).
For an organisation to utilise PEMs effectively it is important they understand:
- The purpose for the assessment – why do you need to perform the PEM?
- What is to be achieved from the PEM?
- Is the correct PEM test being utilised to determine the information required?
- Is the medical assessment/s in breach of anti discrimination laws?
The primary reason PEMs are conducted is to help an organisation ensure the person selected to perform the role is able to meet the inherent requirements of the role. In Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176, Ms Duncan was offered a position on the condition she satisfactorily completed a pre-employment medical. At the pre-employment medical Ms Duncan was found to have suffered from a number of medical conditions that would make it difficult for her to cope with the physical demands of the role. Relying on the medical practitioner’s opinion, Kembla Watertech advised Ms Duncan she was disqualified on the basis that she was unable to perform the essential parts of the job safely.
Ms Duncan lodged a complaint to the NSW Anti Discrimination Board which she alleged that Kembla Watertech had unlawfully discriminated against her on the basis of disability, under the Anti Discrimination Act 1977 (NSW). In this case, it was determined that there was no unlawful discrimination because Ms Duncan’s disabilities rendered her unfit to perform the inherent requirements of the role and Ms Duncan’s complaint was dismissed.
Employers need to ensure that the candidate is able to perform the inherent requirements of the job role without risk of injury to themselves or their potential co-workers.
For a candidate, a PEM should be seen as an opportunity to fully and honestly inform their potential employer about any relevant medical conditions/injuries.
It also demonstrates that their potential employer places a value on their safety and the safety of others and that there is no risk of injury when the duties are performed. Further a PEM may detect a relevant medical condition that was not previously detected.
All PEMs should be specifically tailored, as different jobs have different requirements. For example, some employers may opt to utilise pre employment psychological screening to assess intelligence, personality, aptitude and skills – this type of medical can be used to determine whether or not the particular candidate exhibits behaviours or characteristics that are inconsistent with the culture of the organisation or the role requirements.
It is important that organisations comply with relevant legislation when adopting PEMs, particularly, anti-discrimination legislation. If your organisation is conducting PEMs make sure they do not expose your organisation to possible legal action by way of a discrimination complaint or a workers compensation claim.
In a future blog post we will discuss how your organisation should best manage the information it receives as part of a PEM.
