8 May 2020 by Nina Hoang
FCW Lawyers launches Safety In-Brief bulletin
FCW Lawyers is proud to launch Safety In-Brief, a succinct monthly bulletin to keep our business community updated on the most critical and interesting developments to managing workplace safety. Welcome to our first publication. We look forward to your input and feedback to improve your reading experience.
Safety In-Brief | May 2020
The continued effects of the COVID-19 on every business means that this has been a busy month of change. This month the safety space focusses on misbehaving Unions, increased Officer liability, workers’ compensation claims in the era of COVID-19 and further changes to dangerous goods legislation.
COVID-19 Workers’ Compensation Claims on the Rise
The pandemic has completely changed the landscape of workers compensation as we know it. As of 1 May 2020, the NSW State Insurance Regulatory Authority reported that 204 COVID-19 related workers compensation claims have been filed. We are likely to see similar results from other States and Territories. Especially as the case of Workers Compensation Nominal Insurer v Hill confirmed that an employee’s death at home was ‘in the course of employment’ as it occurred during her working hours and she was working from home.
The Australian Council of Trade Unions has lobbied for States and Territories to introduce similar legislation to South Australia. South Australian employees infected with COVID-19 who work in services such as healthcare, emergency services, schools, transport, supermarkets, petrol stations will be deemed to have contracted the disease from their employment unless there is proof otherwise.
Victoria has temporarily increased WorkCover’s notice period for second entitlement decisions from 13 weeks to 39 weeks, which means Victorians have extended WorkCover benefits for up to six months under the COVID-19 Omnibus (Emergency Measures) Bill 2020. This is intended to assist injured Victorians by providing an extended buffer before the benefits cease. The additional time is to assist them in returning to the workforce. As the Bill is intended to curb the effects of the pandemic, this increase will only apply until October 2020. It will take effect retrospectively from 1 December 2019. See WorkSafe’s FAQ for further information.
Dangerous Goods Review
In August 2019, Victoria introduced significant reforms to curtail the stockpiling of dangerous chemicals which includes imprisonment of up to 10 years and a maximum fine of $6.4 million. The recent case of DPP v New Sector Engineering Pty Ltd is a reminder of the consequences of inadequate storage of dangerous goods. The employer was fined $300,000 when gas bottles exploded during transportation. Despite the earlier reforms, employers continue to stockpile dangerous waste chemicals. Victorian State Workplace Safety Minister Jill Hennessy has announced a review of the legislation and that further reforms are coming.
Unions in trouble for hiding behind ‘WHS concerns’
The Courts have taught the Unions a harsh lesson that they cannot use the claim of Work Health and Safety to pursue industrial goals. In Australian Building and Construction Commissioner v Hassett, a CFMMEU Union official has been personally fined $10,000 by the Full Federal Court for knowingly entering a site illegally, as he did not possess a valid right of entry permit. The CFMMEU are also in trouble in Chevron Australia Pt Ltd v CFMMEU, where the Union organised for unlawful industrial action to delay a cargo ship as they disliked the use of foreign crews. What was shocking, is evidence demonstrated the Union purposefully raised insignificant and false safety issues as a mask for their true intentions. Any further breaches by a Union Representative will result in a fine of $3 million dollars.
Putting the spotlight on ‘Officers’ regarding Reckless Conduct & Industrial Manslaughter
Around the country Officers continue to be found personally liable for breaches of work, health and safety legislation. It used to be rare for Officers to be charged, but in the last 12 months alone we have seen nine charged in rapid succession. Employers need to remember that the actions of your management team are attributable to them, the City Of Armadale was reminded of this lesson as their fine was doubled when they tried to shift the blame onto a ‘rogue’ supervisor in Ayton v City of Armidale.
The most important case involving an officer is R v Watts. The Defendant was charged with both reckless conduct and manslaughter for his unsafe use of a crane on the University of Canberra Hospital construction site which resulted in the death of a fellow worker. In February 2020, he engaged in a plea deal with the Prosecution to plead guilty to reckless conduct which attracts lower penalties and imprisonment time (even though there is a higher threshold for the Prosecution to prove this offence over that of manslaughter). The ACT Supreme Court sentenced him to 12 months imprisonment. As Victoria’s Industrial Manslaughter laws come into effect on 1 July 2020, we can expect similar deals to be happening here as well.
To protect yourself, make sure you tune in to FCW’s Industrial Manslaughter Webinar presented by Andrew Douglas and Gary Rowe on 22 May 2020 on the following issues:
- When it becomes law in each state and territory (and not in some)
- What is Industrial Manslaughter, when can you be charged and what is the punishment?
- What you must do to prevent you and your organisation being charged
- The Safety governance process and practice you must adopt to protect you and your organisation
The ‘Friday Workplace Briefing’, a complimentary 30 minute, weekly webinar by FCW Lawyers to keep employers updated on current and emerging workplace issues. To register, click here.
List of useful resources
- SafeWork Australia COVID-19 Checklist
- SafeWork Australia National Statement of Regulatory Intent (note this does not apply to Victoria)
- SafeWork Australia Risk Register Template
- WorkSafe Victoria Preparing for the Pandemic Guide
- National Cabinet’s 10 COVID-19 Safe Workplace Principles