Western Australia introduces anti-bullying jurisdiction & amends workers’ compensation
The Western Australian Government have introduced a new Bill which establishes “a presumption of work-related injury for specified diseases suffered in specified classes of employment.” This will make it easier for health care workers to access workers compensation if they are diagnosed with COVID-19. They have also made plans to introduce a stop bullying regime that replicates the existing provisions in the Fair Work Act 2009 (Cth).
Unions pushing for pandemic regulation
The ACTU has made submissions to the Senate Select Committee on COVID-19 to introduce ‘pandemic regulation’, which would mandate higher work health and safety controls specifically for the pandemic. Safe Work Australia has disagreed with this submission as it would be contrary to the intention behind the original work health and safety laws.
New South Wales major Work Health Safety law updates
NSW has made further amendment to its WHS laws (effective 10 June 2020) to increase the information sharing powers between different departments; NSW Health is now able to provide relevant information to the Resources Regulator or SafeWork NSW. It is expected that these laws will assist in managing and preventing occupational diseases within NSW. NSW has also prohibited PCBUs and officers from taking out insurance or indemnity arrangements to cover penalty payments for WHS prosecutions.
Other amendments include:
- New penalty unity system;
- Category 1 maximum fine increases to $3,463,000 (34,630 penalty units);
- Category 2 maximum fine increases to $1,731,500; and
- Category 3 maximum fine increases to $577.000.
South Australia simplifying labour hire
South Australia’s labour hire scheme has been narrowed, so only high-risk sectors such as meat processing, horticulture, cleaning, seafood processing and trolley collection are required to have a labour hire licence.
Shining the spotlight on industrial manslaughter
In Victoria, from 1 July 2020, the new Workplace Manslaughter provisions apply, which extends to the death of non-workers, unlike any other jurisdiction. The maximum penalty for Officers if found guilty of workplace manslaughter will be 25 years jail.
The first ever industrial manslaughter conviction has taken place against Brisbane Auto Recycling Pty Ltd, for the death of a worker who was crushed by a reversing forklift. The business failed to have any safety measures in place and consciously disregarded the risks. The business was fined $3 million out of a maximum fine of $10 million for breaching the QLD industrial manslaughter laws. Surprisingly, the two directors received relatively low sentences of 10 months each and these sentences were wholly suspended for 20 months. The directors were convicted of breaching officers’ duties and reckless conduct. The Officer’s sentence was far lower than other cases where the offences were the lesser charge of Reckless Endangerment (Category 1) and where the businesses had not actively attempted to lie and mislead the Regulator during the investigation. See R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113 (11 June 2020). But just like Orbit Drilling, the first Reckless Endangerment case, the Court was establishing the lower end of the sentencing tariff , future cases will unquestionably give higher custodial sentences.
Some lessons from case law
The month of June has been very interesting and varied. Here’s a quick summary of lessons from this month:
- ‘Golden safety rules’ are not enough, workers need adequate training on how to comply with the safety requirement and the company SWMS must contemplate the risks the employee is faced with. This employer learnt a costly lesson being fined $375,000 and ordered to pay $40,000 in SafeWork NSW v Komatsu Pty Ltd  NSWDC 314 (19 June 2020)
- Employees cannot refuse to comply with reasonable requests for alcohol and drug tests. See this hilarious case where an employee refused to urinate for over three hours Nedelkovski v Tasmanian Freight Services Pty Ltd t/a Tasfreight  FWC 3151 (16 June 2020)
- An unaggressive sentence on its own uttered by a Union Official does not automatically result in adverse action or coercion, as the ABCC learnt when they brought a case in Australian Building and Construction Commissioner v Molina  FCAFC 97 (29 May 2020)
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