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Category: Workplace Safety

  • Fair Work Commission – “bullying” was reasonable management action and rejected a long-serving employee’s bullying claim.

    The Fair Work Commission said, “bullying” was reasonable management action, and has rejected a long-serving employee’s bullying claim.  The Commission accepted that the employer, Salvation Army Employment Plus, took reasonable management action when it performance-managed its employee after she resisted changes to workplace practices.

    Commissioner Lee in a ruling issued 4 June 2015 said the issues raised by the Salvation Army Employment Plus job placement consultant in her bullying claim “are reasonable management action undertaken in a reasonable manner”.  The Commissioner said the consultant particularly objected to a change that involved her seeking to place in jobs clients from the full “rainbow” of applicants, rather than just the “generally job ready” clients she had dealt with in her 9 years with the organisation.

    The placement consultant told the Commission at the hearing in April that the change meant she was now required to deal with stream-4 clients who “may be somebody who is recently out of prison and they have drug issues, mental health issues, schizophrenia, they are considered not job-ready”.  The consultant refused to deal with the stream-4 clients claiming it was unsafe, but Commissioner Lee, after considering evidence including a recent Worksafe inspection, said he was satisfied there was no such risk.  Commissioner Lee said the change in client mix, alongside the employer’s new approach to performance management, “is a major driver” of the consultant making the bullying claim.

    The consultant claimed she was being unreasonably performance managed and micro-managed.

    The Commissioner said the consultant was “deeply distressed that her refusal to service ‘stream 4’ clients was the basis for the finding [in a performance assessment] that she was not meeting the values of the organisation”.  The employer gave her a score of 57 out of 100 in her most recent assessment, against an average across all employees of 62, marking her down for failing to service the stream 4 clients.

    Commissioner Lee said that it was “not unreasonable” for her refusal to “become a matter of note in her performance appraisal“, given that it was part of her position description.  The Commissioner said Employment Plus had in the past failed to assess individual performance but while its introduction had been “a significant change” for the consultant, “the manner in which it has been introduced or administered does not appear to be unreasonable.”

    Organisation shifting from “moribund” to “performance focussed“

    Commissioner Lee said the organisation had shifted from “a long period of moribund management to an environment where the organisation is performance focussed… However, while this represents a significant change in her working environment, the fact that it occurred and the method of its implementation did not amount to bullying”.

    Commissioner Lee said the change within Employment Plus was a response to the Salvation Army seeking to implement a “high performance culture” to turn around losses that meant the job agency was being subsidised.

    Commissioner Lee said “She was forced to adjust to a more active management after a lengthy period of the organisation managing her and her colleagues very poorly… However, while this was a change that had a personal impact on the [consultant], particularly with the high turnover, there is no evidence that the approach taken amounted to bullying behaviour directed at the [consultant], particularly given the evidence of the timely replacement of vacancies in the organisation.”

    [A. B. [2015] FWC 3353 (4 June 2015)]

  • The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer.

    The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer.

    workplace-safetyThe Fair Work Commission reinstated a portable toilet delivery driver who’s employment was terminated with Coates Hire Operations Pty Limited for a safety breach.  The Commission rejected the employer’s claims that the delivery driver should not be returned to the job because it no longer had ‘trust and confidence’ in him.

    Commissioner Booth said the driver’s behaviour did not constitute serious misconduct because there was no element of the conduct being “wilful or deliberate”.  Commissioner Booth said the driver’s error “was not a deliberate, wilful, reckless or even negligent breach of safety requirements“.

    Coates dismissed the driver after he stopped his truck on the then new 13km Gold Coast Light Rail line early in 2014.

    Commissioner Booth accepted that the driver genuinely believed the track and wires were not live and that it was safe to park his truck on the track while he picked up a damaged portable toilet.  The Commissioner noted that video evidence indicated “no visible hazard zone signs, tape, bunting or other indicia that would objectively give rise to concern that the site was live and dangerous”.

    The Commissioner took into account evidence from Coates’ northern region HR Manager that the dismissed driver’s group had not been “toolboxed” about the advice provided to Coates about when the line would go “live“.

    The HR Manager also admitted in evidence to the Commission that the work order given to the driver did not contain a safety warning, whereas work orders issued after the driver’s incident incorporated such a warning.

    Commissioner Booth rejected Coates’ argument that the driver should not be reinstated because it had lost ‘trust and confidence’ in him.  The Commissioner said the driver “struck me as an honest and very willing worker, albeit one who had, in his own words and with hindsight, done the wrong thing, an admission against interest that reinforces my conclusion” and if reinstated there is no reason why “he would not perform his duties in a satisfactory manner and in the best interests of Coates”.

    The Commissioner noted that the driver had served the Company for almost 12 years without any criticism of his work performance.

    Commissioner Booth has requested Coates and the former employee provide further submissions on compensation for lost earnings.

    [Harrington v Coates Hire Operations Pty Limited [2015] FWC 2598 (6 May 2015)]

  • Unreasonable for an employer to direct workers to attend a compulsory health assessment

    The Fair Work Commission has ruled that it is unreasonable for an employer to direct workers to attend a compulsory health assessment aimed at addressing high injury levels in the absence of first establishing genuine need.

    Cement Australia Pty Ltd introduced a compulsory physical risk review program in 2013 as part of its response to the frequency of injuries reported by heavy vehicle drivers in its distribution division, which were higher than the average injury rate across the rest of the business.

    Previous efforts by the company to reduce the injury statistics had been unsuccessful, including voluntary functional capacity assessments and practical measures to reduce the risk of slips, trips and falls when drivers were working on or around their vehicles.

    The 45-minute assessment was to be carried out bi-annually by an external provider called Kinnect, focusing on areas including blood pressure, muscle and joint function, waist and neck circumference and abdominal strength.

    The results were to go on an employees’ health file, while the health professional was asked to identify any programs the employee might benefit from, including a “12 Week Body Transformation Program”.

    But the union, the TWU, disputed the company’s right to direct drivers to participate in the assessment, especially given they were already required to have regular medical assessments under the National Heavy Vehicle Accreditation Scheme.  The union also had privacy concerns about how the information would be stored and used.

    The Company told Commissioner Spencer that the program was designed to test workers’ level of risk in performing their duties, rather than advising of a workers fitness to perform the inherent requirements of their job.

    However, the Company admitted that workers who refused to participate in the assessments “could be subject to disciplinary action“, because it deemed participation to be “an essential tool for addressing the level of risk of injury“.

    Commissioner Spencer distinguished the case from Grant v BHP Coal Pty Ltd, in which a FWC full bench upheld her earlier ruling endorsing BHP’s right to direct a single employee to participate in a medical assessment by a company-nominated doctor to ensure he could perform the inherent requirements of his position.

    In contrast, Commissioner Spencer said Cement Australia sought to direct only its drivers to take part in the medical assessment “based on a general concern regarding the trend of musculoskeletal injuries for the group overall“, without first establishing genuine need for the assessment that was relevant to the requirements of the workers’ jobs.

    The Commissioner found that the Company’s direction for the program was unlawful or unreasonable. “There has been an insufficient particularisation of the data to establish a genuine need to direct an entire segment of the workforce to undertake this assessment… Further, the outcome of the Risk Review Program will not provide medical information directed to the inherent requirements of the job or provide a link to reduce the musculoskeletal injury rate,” Commissioner Spencer said.

    “In addition, given that there remain questions regarding the process and contradictory information and questions regarding the discharge of the process, the direction has not been made on reasonable terms. The [company] could not conclusively provide that the privacy of employees’ medical information would be secured.”

    In Summary: 

    This case tested what is lawful and reasonable when it comes to directions issued by employers to their employees that invade their personal life.  Importantly, the decision confirmed that an employer could not direct an individual to undertake a medical assessment unless it had a particular concern that the employee was unable to perform his or her job.  There must be a genuine need for the assessment and it must be relevant to the requirements of the worker’s job.

    [TWU v Cement Australia Pty Ltd [2015] FWC 158 (20 April 2015)]

  • Changes to Queensland Workers Compensation Legislation – What this means for you!

    Following the release in May 2013 of the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme, the Workers Compensation Rehabilitation & Other Legislation Amendment Bill 2013 was passed on 17 October 2013.

    Significant changes were made to the Queensland Workers’ Compensation and Rehabilitation Act 2003 (‘the Act‘).  The Act was assented to on 29 October 2013, and the changes are now in effect.

    Workers-Compensation-Claims-in-LouisianaThe purpose of the changes was to “strike a better balance between providing appropriate benefits for injured workers and ensuring the costs incurred by employers are reasonable“. Whether that goal will be achieved and whether the number of claims will decrease, is yet to be seen.

    Regardless, it is critical that employers remain vigilant with the workers’ compensation process and understand their rights and obligations to deal with the changes, and to defend against claims.

    The Queensland scheme

    • The laws aim to ensure Queensland maintains the leading workers’ compensation scheme in Australia.
    • Queensland is the only state where ALL workers are covered during their journey to and from work.
    • The changes are to ensure that the premiums paid by businesses will be the lowest in Australia.
    • Queensland has the lowest common law threshold of any state in Australia (for example – Queensland’s starting threshold is greater than 5%, while Victoria’s is 30%. South Australia, the Northern Territory and the ACT have abolished workers’ rights to make common law claims).

    The key changes include:

    • Replacing Q-Comp with the “Workers Compensation Regulator” and merging it into the Office of Fair and Safe Work Queensland.  The explanatory notes regarding the change identify that the Workers Compensation Regulator will operate in a similar manner to the regulator under the Work Health & Safety Act 2011.
    • Allowing employers to seek disclosures from prospective workers about previous injuries/conditions and obtain their workers compensation claims history.
    • To make a common law claim a worker must now have a 5% Degree of Permanent Impairment (‘DPI‘) arising from the injury, which replaces the concept of whole person impairment.
    • The table of injuries has been removed from the Workers Compensation and Rehabilitation Regulation 2003 and replaced with a new calculation for lump sum compensation under the relevant DPI.
    • The definition of “injury” under section 32 of the Act, has been amended.

    Who can make a common law claim for work related injuries?

    The Act now contains a threshold the worker must meet so to make a common law personal injury claim in relation to a work related injury sustained on or after 15 October 2013.

    The concept of “work related impairment” has been replaced with a method of assessment of “degree of permanent impairment” (‘DPI‘).

    Workers are now only able to file a common law damages claim for a work related injury where a worker’s DPI is assessed as being greater than 5% or, who have a terminal condition.  Dependents retain their ability to seek damages if the work related injury resulted in the worker’s death.

    [Workers who sustain an injury prior to 15 October 2013 will have their workers compensation claims processed and dealt with under the old provisions of the Act.]

    What is an “injury”?

    The definition of “injury” in relation to physical injuries remains unchanged.  For physical injuries, employment still needs to be “a significant contributing factor” to the injury.

    However, the definition of “injury” in relation to psychiatric or psychological injuries has changed to require that employment be “the major significant contributing factor to the injury”.  This change will represent a higher threshold to be met by claimants seeking compensation for psychological injuries.

    The exemption of psychiatric/psychological injuries arising from reasonable management action taken reasonably in relation to the worker’s employment remains unchanged.

    Workers also remain able to make journey claims (injuries that occur during certain journeys).

    Employers to Seek Disclosures to History

    From 29 October 2013, prospective workers, upon receiving a written request by a prospective employer, are required to disclose all pre-existing injuries of which they are aware could reasonably be aggravated by performing the duties of the position they applied for.

    A prospective employer must advise the prospective worker:

    (a) Of the nature of the duties the subject of the position he prospective worker has applied for; and

    (b) that if they do not comply with the request, or they supply false or misleading information, the worker will not be entitled to compensation or damages under the Act for any event that aggravates the non-disclosed pre-existing injury.

    Where the prospective worker fails to disclose relevant pre-existing injuries or provides false or misleading information and aggravates the non-disclosed pre-existing injury, the worker will lose their entitlement to compensation and damages.

    For employees who were engaged before being requested to make the disclosure, their ability to make claims for pre-existing/non-disclosed injuries remain unchanged.

    Furthermore, with the consent of the worker, and payment of a fee to the Regulator, a prospective employer is now able to access a prospective worker’s claims history summary. The amended Act provides that the prospective employer must maintain confidentiality of the summary and not disclose the contents.  The summary may only be utilised with respect to considering and selecting the prospective worker for employment.

    However, the prohibition in the Act on obtaining and using “workers’ compensation documents” (as defined in the Act) for selecting a person for employment or determining whether a workers’ employment is to continue, still exists.  The application of the Fair Work Act 2009, and discrimination laws, also continue to apply.  Hence, access to information about a prospective worker’s workers compensation history and pre-existing conditions will need to be carefully managed and considered in order to ensure legal compliance.

    Now What?

    Employers need to understand the implications of the recent amendments of the Act, in order to defend against workers’ compensation claims.

    While significant changes have been made, key processes and obligations under the Act remain unchanged, including, employers having 8 business days to provide a response to a workers compensation claim to the insurer.

    Employers should ensure that policies and procedures:

    (a) maintain reasonable management action;

    (b) meet work, health and safety requirements, to minimise injuries;

    (c) address access to medical and workers compensation documents and use of those documents.

  • Employer Liable Vicariously for Sexual Harassment of Employee

    The Queensland Civil and Administrative Tribunal has found a Gold Coast resort vicariously liable for the sexual harassment of a female employee, further, that its mishandling of her complaint contributed to a psychiatric injury. [McCauley –v- Club Resort Holdings Pty Ltd (no 2) [2013] QCAR 243 (13 May 2013).

    Image
    The Tribunal Member, Jeremy Gordon, found Club Resort Holdings Pty Ltd vicariously liable for a male Chef’s sexual harassment of the female Food and Beverage Attendant, who ran the buffet in the Kalinda Restaurant in the RACV Royal Pines Resort.

    Member Gordon was particularly critical of the HR manager who mismanaged the Attendant’s allegations by failing to obtain a full account of events from her, and instead focusing on obtaining a statutory declaration from the Chef, making it almost impossible to test his version of events.

    The Attendant alleged that during the Australian Ladies Masters Golf tournament over 3 days in early March 2010, the Chef sexually harassed her and discriminated against her based on her sex and age, by:

    • commenting that she smelt like “Old Spice” – a scent he associated with his grandfather and asking whether anyone else could smell it;
    • sniffing the air when in her vicinity, invading her personal space; and
    • referring to her as a cougar and making growling noises, including growling in her ear and around her neck.

    The Attendant attempted to ignore the Chef, but she was unable to stop his actions.  The Attendant claimed she told him, “this kind of behaviour is unnatural Steve, I’m old enough to be your mother, this is disgusting“.

    He replied: “you have nothing to be worried about, I’m a happily married man“.

    After 3 days the Attendant told the Chef that he was an “arsehole” and that he should back off and “f@#k off“.  The Chef apologised, but did not stop his comments.

    The resort’s investigation into the incidents concluded that the Attendant’s allegations were unfounded.

    The Attendant went on leave for 3 months and made 2 WorkCover claims for permanent impairment caused by the sexual harassment and the Resort’s inadequate investigation.

    The Attendant further alleged that the Resort victimised her in response to her complaint by:

    • failing to carry out an adequate investigation, and failing to find that her complaint was proven;
    • requiring her in June 2010 to conduct contract negotiations with the Resort’s HR Manager, despite her known lack of trust in the Manager;
    • disciplining her for talking to colleagues about the progress of her sexual harassment claim and for failing to perform her duties; and
    • subjecting her to unwarranted disciplinary action for failing to give 2 hours’ notice that she was taking sick leave as a result of experiencing a panic attack.

    Member Gordon found that the Chef had subjected the Attendant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature, saying that a reasonable person would have anticipated the possibility that the Attendant would be offended or humiliated by the conduct.

    He also found the Chef made the cougar and “Old Spice” references in response to the Attendant’s age (49 years of age).

    Member Gordon said it was “very surprising” that the Resort failed to corroborate the Attendant’s allegations, especially given WorkCover’s later conclusion “without a doubt that the events alleged by [the attendant] did take place“, injuring her as a direct result.

    He described as “extraordinary” the fact that the HR Manager failed to obtain a full version of the events from the Attendant’s point of view before asking the Chef to make a statutory declaration.   He said, “This error was compounded by the fact that [the Chef] was not interviewed again. This meant that his statutory declaration made on the day of that meeting stood as his statement in the investigation. The first time [the Attendant’s] allegations in full were put to [the Chef] was at the hearing before me“.

    The Resort’s Employee Relations and Remuneration Manager concluded that while the Chef had made the Old Spice and cougars comments, he said “a reasonable person in similar circumstances would view the comments as light hearted and not derogatory“.
    But Member Gordon found this conclusion was inadequate because the Resort failed to:

    • give the Manager a copy of an interview between the HR Manager and the Chef in March 2010, when he admitted telling the Attendant “you are a bit of a cougar“;
    • ensure the Attendant was interviewed by the investigator (she didn’t know one had been appointed); and
    • provide the Attendant an opportunity to comment on the Resort’s findings before she was told the result.

    Further, 3 witnesses (including the HR Manager) who the Attendant alleged were present in the kitchen, including when she told the Chef to “f@#k off“, were not called to give evidence during the investigation.

    Member Gordon found that the sexual harassment, discrimination and the mismanagement of the Attendant’s complaint contributed to and caused her to suffer from an adjustment disorder and depression, leaving her unable to work at the resort.

    Member Gordon found that while the Resort had a Fair Treatment Policy, it was unable to provide details of training provided to its employees.   He described the Resort’s response to the Attendant’s sexual harassment complaint as “inept and unprofessional” and ordered it to pay her $35,490 in compensation for loss and damage, and ordered the Chef to pay her $4,500.

  • Not given an opportunity to respond to the allegations against you leads to unfair dismissal

    A full bench of the Fair Work Commission has reversed a decision that a boilermaker was fairly dismissed for using an unsafe method to cut a steel plate (The boilermaker had suspended the steel plate from a crane, rather than laying it out horizontally, in order to cut it). The full bench found that he was not given sufficient opportunity to respond to allegations about his conduct or to attend his employer’s re-enactment of the incident.

    Fair-work-commission
    Fair-work-commission

    In Haigh v Bradken Resources Pty Ltd [2013] FWCFB 2918 (28 June 2013), Deputy President McCarthy and Commissioners Hampton and Cloghan agreed with Commissioner Williams that there was a valid reason for Bradken Resources Pty Ltd to terminate the boilermaker’s employment, but said the Company had not given him a proper explanation of the accusations against him.  As part of its investigation, the Company conducted a re-enactment of the incident, but did not invite the boilermaker to attend.

    The full bench accepted that the Company had explained “a form of the allegations” to him at a meeting the day after the incident, but said he had disputed the account and was in an agitated state. The full bench said the Company “seemed to recognise the state he was in and purported to give him an opportunity to respond in writing to the allegations… However the letter sent to him was poorly framed and merely stated that he had been involved in the ‘cutting of plate in a suspended condition’. He disputed that, primarily on the basis that the plate was not ‘suspended’. Following the [worker’s] response without any further discussion or involvement [his] employment was terminated.” The bench noted the Company had no specific rules or policies for the cutting of steel plates. In those circumstances, where there is a dispute about standard practice, “an unsafe act can often only be determined by reliance on individual assessments and opinions about that act“. “The importance of providing a proper and precise explanation to the employee accused of unsafe conduct in these circumstances is of significant importance in order that the employee can truly be regarded as having had an opportunity to respond to the accusation,” the full bench said. The bench also took into account Bradken’s failure to invite the boilermaker to the re-enactment. The bench decided to rehear the case itself, and concluded “on balance” that the dismissal was harsh. It said the boilermaker’s experience and good record were factors in his favour, but also weighed against him.

    Lessons to Employer:

    • Ensure that you clearly provide to the employee, the allegations in relation to his/her conduct, and allow the employee an opportunity to respond to those allegations.
    • Then make a decision as to whether or not to dismiss the employee.

  • Workplace Bullying – remove it from its current legal and cultural designation as an OHS issue

    National law firm principal, Josh Bornstein, says criminalising workplace bullying will not work, and Fair Work Australia should be given a new early intervention role to prevent cases reaching the point of irreversible damage.

    In a presentation at a Legalwise seminar in Melbourne last week, Mr. Bornstein addressed “myths” perpetrated about workplace bullying, including that it was a safety issue.
    “One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue,” Mr. Bornstein told his audience.

    One reason for this view was that workplace bullying was illegitimate regardless of “whether an injury is caused or threatened“. He compared it to unlawful discrimination, noting that both could cause catastrophic damage to health, “but it is only bullying that remains pigeon-holed in the OHS and personal injury sub-culture“.

    The second reason was entrusting enforcement to state-based OHS regulators, “hasn’t worked and it won’t work“.  Such agencies are overwhelmed by the volume of bullying complaints, and have quickly become jaded by the issue, developing a “compassion fatigue“.

    It is a time for changes to the Fair Work Act 2009 (Cth) to enable victims of workplace bullying to take a complaint to a tribunal or a court, “well before the situation has escalated to the point of irreversible damage [to their health]”… “Either Fair Work Australia, the Federal Court or Federal Magistrates Court could have a role.”

    Potentially, the Fair Work Ombudsman could initiate proceedings, as well as the employees themselves.

    On the proposal to expand the criminalisation of workplace bullying and other calls to extend Victoria’s Brodie’s law, Mr. Bornstein said he “couldn’t disagree more.”  Brodie’s law is an amendment to the Victorian Crimes Act 1958 introduced last year to target serious bullying behaviour, following the suicide of 19-year-old Melbourne waitress, Brodie Panlock.  Mr. Bornstein said that while the law was symbolically important, “at a practical level it has been next to useless. It does not apply to 95% of bullying situations.“

  • Employer Escaped Liability in Sexual Harassment Case before NSW ADT

     In the most recent case before the NSW Administrative Decisions Tribunal Cooper v. Western Area Local Health Network [2012] NSWADT 39 (9 March 2012)

    Sexual Harassment

    , a male health care worker, who was employed by the Western Area Local Health Network, was fined $10,000 for sexually harassing a colleague.

    The employer, however, has escaped liability, and was not vicariously liable because it had taken the appropriate “reasonable steps” to educate the worker about sexual harassment, including the penalties for taking such action.

    The case involved two colleagues who had worked together for 5 years and who had socialised outside work.

    At the end of a staff training day in October 2010, the male employee gave his female colleague a folded piece of paper, which she said she would read later.

    When she did read it, she said she felt “physically sick” and concerned enough about the further potential behaviour of her male colleague that she made a complaint to her local police station in Orange, in the state’s central western.

    While the Tribunal said it was not necessary to record the content of the note in its decision, the Tribunal members said the note described, “a series of actions of a sexual nature proposed to be done by a male to a female“.

    The note was unsigned and it was not obvious who had written it.

    The female employee believed the note had been written by her male colleague and was directed at her.

    The male employee argued that another person had written the note, however, the other employee was cleared of any possible breaches of the workplace Code of Conduct after investigation.

    The ADT members said they were satisfied that the case met all the necessary tests to establish that sexual harassment had occurred (and the worker had breached s.22B of the Anti-Discrimination Act 1977) in providing the note to his colleague.

    These tests, established in Sharma v. QSR Pty Ltd. t/as KFC Punchbowlinclude:

    –       proving that conduct of a sexual nature had occurred and been unwelcome,

    –       that the conduct related to the applicant, and

    –       that a reasonable person would have anticipated that the other person would have felt intimidated, offended or humiliated by the conduct.

    In considering the employer’s liability, and whether it had authorised the employee to engage in the conduct in question, or failed to take all necessary steps to prevent the conduct – the ADT warned that it, “is not enough for an employer merely to institute policies – the policies need to be implemented and brought to the attention of the employees in a meaningful way“.

    The Tribunal found that the steps taken by the employer in:

    –       regularly requiring employees to re-commit to the relevant Code of Conduct, and

    –       regularly attend training in bullying and harassment

    “were sufficient, in the sense that all steps that could have been taken were in fact taken“.

    It ordered the male employee to pay his colleague $10,000 in damages.

  • Federal Government Announces Workplace Bullying Review

    Workplace Relations Minister Bill Shorten

    workplace bullying

    has announced a review of workplace bullying, to be conducted by the House of Representatives Standing Committee on Education and Employment.

    The review will cover “the nature, causes and extent of workplace bullying“, and will consider issues such as the prevalence of workplace bullying in Australia, the role of workplace cultures and policies in preventing and responding to bullying, and whether existing regulatory frameworks provide a sufficient deterrent against workplace bullying.

    The Committee will be required to provide its report to the Minister by 30 November 2012.

    I shall keep you informed of any developments in this area of the law.

  • Your OH&S Obligations from January 2012

    You may be aware that substantial changes are being made to the current Occupational Health and Safety laws.  The changes are an attempt to create ‘harmonisation’ across individual States and Territories that have historically had their own OH&S legislation.  A uniform approach to the new laws has been agreed to by all States, which will bring about a greater level of certainty and reduced costs to businesses.

    For workers, this will mean the same rights, entitlements and protection across Australia regardless of their place of work.  For businesses that operate across State and Territory borders, it will mean being subject to the same laws in each jurisdiction, creating a more streamlined and less complex OH&S process.

    The model laws include the new Work Health and Safety Act (WHS Act) and the Work Health and Safety Regulations (WHS Regulations).  They will be supported by national Codes of Practice.  All jurisdictions had committed to enacting the model Act by January 2012, however at this stage only ACT, NSW and QLD have passed the legislation.  WA and VIC have requested an extension of time (to 2013), but now is still a great time to review your current OH&S practices and begin aligning them to the new system.

    Some key changes are set out below:

    1. The new notion of a ‘PCBU’

    A PCBU is a “Person Conducting a Business or Undertaking” and will replace the term “employer” in the context of these matters. This is because the WHS Act now extends beyond traditional employer / employee relationships to include new and evolving work arrangements and risks.

    The PCBU is the principal duty holder for a business.

    2. The new definition of “worker”

    A person is a worker if they carry out work in any capacity for a PCBU, including work as:

    • an employee;
    • a contractor or subcontractor;
    • an employee of a contractor or subcontractor;
    • an employee of a labour hire company who has been assigned to work in the business or undertaking;
    • an outworker;
    • an apprentice or trainee;
    • a student gaining work experience; or
    • a volunteer.

    3. An increased “duty to consult”

    A PCBU must consult with workers when:

    • identifying hazards presenting risks;
    • making decisions about eliminating or minimising risks;
    • making decisions about the adequacy of facilities for the welfare of workers;
    • proposing changes that may affect the health or safety of workers; or
    • setting procedures for resolving health and safety issues;

    An intention of the Act is to ensure engagement and leadership in WHS management.  This has led to harsher penalties in relation to officer liability.  An “officer” is a senior executive who makes, or participates in making, decisions that affect the whole or a substantial part of a business or undertaking (Section 9, Corporations Act (Cth)).  Officers will be required to exercise “due diligence” to ensure that their business complies with its safety obligations. This means that officers may be liable for breaches of safety without an incident/accident even occurring, with penalties potentially including fines and imprisonment.

    Some further general tips to help you in preparing for the transition:

    • Consider the impact the new legislation may have on your current policies and procedures (eg. consultation arrangements, training, etc).
    • Undertake a gap analysis of your current health and safety system to determine what changes are required to achieve compliance.
    • Understand the necessary revisions to your current policies and procedures
    • Consider who in your organisation may be considered an “officer” and ensure each has a clear understanding on their responsibilities under the model Act.
    • Develop a more robust consultation process, given the expanded application of the duty to consult. Make sure that you include all relevant workers.
    • Consult with your workers about what is happening and any changes that will need to be made in readiness for the new legislation.
    • Implement changes and train workers in any new policies.
    • Monitor key developments in the jurisdictions where your business operates, and introduce them as required.