Introduction

A week is a long time in workplace law. Governments push and shove around JobKeeper extensions and emergency powers, business struggle to survive and make impulsive calls (with bad results) and the Courts and Tribunals try and balance urgency with fairness. But through the last few months, there are constant themes emerging that give us certainty. The developments we describe below are now settled into predictable rules that should be followed.

COVID/JobKeeper

The Federal Government has won Labor support to extend JobKeeper with two step-down payments (from 28 September 2020 full time to $1.200 and part time $750 and for 4 January 20201 to 28 March $1,000 full time and 600 part time). Under the extension to JobKeeper, eligibility for employers will be a decline in turnover from prior relevant period. But the IR change (Powers of Stand down and similar provisions for employers who were eligible under JobKeeper 1) piggy backed on the JobKeeper payment are odd, difficult to manage and will create more disputes. The extra layers of bureaucracy to be able to utilise the IR Levers will hurt SME’s particularly. An unfortunate sop for the ACTU.

The IR changes primarily give employers access to the JobKeeper enabling directions and requests even though they were no longer eligible for JobKeeper payments. The Government has circumscribed who can use the IR tools, describing these employers as legacy employers (employers no longer eligible but have a certified drop of 10% revenue). The IR tools have also been wound back, such as employees can’t be asked to work less than two hours on a day, notice for directions will be extended to 7 days and employee hours cannot be reduced by more than 60%. Finally, you must check fairness across workers based on personal circumstances like carers responsibilities-a concept completely foreign to Stand Down under the FWA and burdensome for employers. Again, another sop for the ACTU where business is required to split shifts, change hours and get flexibility for safety with COVID and for financial survival.

The recent case of Lam v MTI highlights the need to comply with ‘reasonableness’ and ‘consultation’ under the JobKeeper enabled directions provisions. Mr Lam was stood down on the day the Employer, MTI, became eligible for JobKeeper. He was one of six employees in the customer service area but the only one stood down to zero hours. The FWC made three very important findings:

1. Before a business stands down anyone they must have considered and developed a reasonable forecast of what work is required and how it can be managed reasonably across its employee group (that is a foundation of fact Jones v Live Events);
2. As we have seen in cases like TWU v Prosegur, Marson v Coral Princess, La Pume v Thomas Foods and very recently Stelzer v Ideal Acrylics, reasonableness must fair between the employer and employee-you can’t just stand one person down, there is a need to share the load and there must be a sound business logic an fairness between employees; and
3. You can’t finesse or ignore the three-day consultation process (although for a second stand down there is a way you can based on getting the first consultation right).

Employment Law – Fitness for Duty

Before an employee can be terminated for not being fit for their role, based on Boags v Button, and subsequent cases, an employer must hold medical evidence of their own that,

1. The employee is not fit for the inherent requirements of their job, with reasonable adjustments; and
2. Will not be fit in the foreseeable future with reasonable adjustments.

There are statutory limitations on termination like the Temporary Absence provisions ins.352 Fair Work Act 2009 (see Reg 3.01 FWR) and obligation periods (times an employee cannot be terminated for injury or illness) under workers’ compensation legislation.

However, what happens if a person seeks to frustrate the medical assessment phase. The answer is an employer is entitled to require an employee to undergo an assessment to determine their fitness for work (including whether they are so unfit for their employment can be terminated Grant v BHP). Recently in Hudson v RMIT, Dr Hudson refused medical examinations on groundless privacy reasons and then altered a consent form to frustrate the medical exam. As in Laviano v FWO, it was held that these repeated frustrations of a legal process were a proper basis for termination.

Employment Law – Using Redundancy as a smoke screen for performance.

Far too often employers make an employee redundant to avoid the tough job of performance management. The approach is flawed and often backfires, as the redundancy is not genuine and leads to a successful unfair dismissal claim.

In Paramore v Knight Watch Security (KWS), Mr Paramore was made redundant from the State Manager job and the next day a new employee was appointed to the new role of GM for the State. Doesn’t really pass the ‘sniff test’ does it. And it didn’t. KWS did not offer or consider him for the new role (although he had the requisite skills and experience) based on past performance. And there it was, the genie was out of the bottle. He succeeded in his unfair dismissal claim and was awarded around $18,000 compensation.

Safety Law – Employers doing the right thing

The much-criticised decision of Commission Riordan of BlueScope, referred to recently has been reverse on appeal by the Full Bench of FWC. The Full bench said in Knowles v BlueScope that an employee’s failure to follow a sensible and coherent policy that prevented serious risk of injury is a proper basis for termination. Bravo! The decision highlights how difficult it is for lay  (non-skilled in safety) Commissiones to deal with safety practice and how important it is in making the case understandable for the FWC.

IR – Can’t nominate Super in EA’s

The Senate just passed the Treasury Law Amendment Bill. As of 1 January 2021 an EA can not specify the Superfund.

Contractor Management Part 3-Managing the Contractor

Over the past two webinars we have considered three aspects of contractor management,

1. Under what circumstances can you carve our liability to the contractor;
2. How do you procure (and risks of prequalification of) contractors; and
3. Specialist contractors.

The third part of the contractor management series examines managing the contractor to ensure carve out and prevent incidents that can create liability for the principal.

There is no magic answers. Below is quick guide:

1. Plan contractor’s role to ensure contractor has all the control responsibility, is competent to control and does control;
2. To the extent principal has residual responsibilities and specialist skill similar to specialist contractor, ensure your system and practice manages and controls these risks;
3. Induct the contractor onto site, area and functional area they operate in and ensure there is a documented plan of shared responsibility;
4. Set up an implementation and monitoring framework that has contractual force and manage it;
5. NEVER walk past a clear safety risk and ensure the contractor satisfies you it has a system to manage the risk, if high risk STOP work; and
6. NEVER supervise-always monitor.

The Contractor Management Case Study

Big Build Co was the principal contractor for 24 story residential block. Copper Tubes Plumbers Pty Ltd (CTP) was the commercial plumber engaged under the contract to undertake all plumbing work. They were at the foundation stage. Significant excavations had been undertaken. Two of CTP’s employees were working in a trench, near a road that large trucks used to get to the bottom of the site to remove soils. The trench was 0.8m from the edge of the road. There were orange plastic bollards with tape around it to separate the trenching area from the remainder of the site. The trench was 1.8m deep and 8 metres long. There was no engineers report on the trench. The SWMS said there should be concrete barriers. There was no shoring, battering or other method of preventing trench collapse.

Questions

1. Should Big Build Co’s supervisor stop work in the trench and surrounding area?
2. As CTP was the specialist contractor, are they the only person at risk?
3. Does Big Build Co have any residual safety obligations in respect of the trenching area they can’t delegate to CTP?