Another month filled with lots of interesting case law and new legislative changes. A lot of employers got caught out doing the wrong thing this month with some substantial fines. They serve as a good reminder of what not to do!

As you will see in this Brief, failing to prioritise safety controls over budgetary concerns will only cost you more later!

Pandemic leave

The $1500 Pandemic Leave Disaster Payment is now available for Western Australia, South Australia Victoria and Tasmania.

As we explained in the previous Safety in-Brief, this disaster payment is for any worker required to self-isolate due to coronavirus and does not have any of the following entitlements:

• Personal leave;
• JobKeeper payments; or
• JobSeeker payments.

Workers can access the payment more than once if they are required to self-isolate again.

Safety is not a “catch all” excuse for dismissal

Employers will often use the handy excuse of safety breaches in order to justify their dismissal.

In Stephenson v Metcash Trading Limited, a warehouse worker was dismissed when his electric pallet jack crashed into another when he was exiting an aisle into a cross aisle. After a show cause process, the employee was terminated given his history of misconduct and as he had failed to stop and wait for the path to be clear. Upon review of the CCTV footage Commissioner Bissett determined that it was inconclusive as to whether the worker failed to slow down, and this was an assumption by the employer. Notwithstanding this, it was evident that the business had a practice where workers normally would not give way to other vehicles increasing the likelihood of such an incident. This is called condonation at Law and means you can’t punish one person if you permit others to do it. As such, there was no valid reason for dismissal and the employee was ordered to be reinstated.

This is a lesson to all employers that you must have legitimate evidence of the safety breaches, and be careful that you are not condoning the unlawful behaviour or this will negate your valid reason for dismissal.

Fair Work Commission: A new Draft Award Flexibility Schedule

President Iain Ross has announced a Draft Award Flexibility Schedule (Schedule) to be introduced into 74 modern awards to facilitate flexible remote working arrangements between employers and employees in the wake of the COVID-19 pandemic. The Schedule is intended to be temporary and will allow parties to make the following types of arrangements:

1. Permanent employees can request to compress their working week so that their usual weekly ordinary hours are worked over a reduced number of their usual work days;
2. Employees to take twice as much annual leave at half pay with the agreement of their employer;
3. Employees to purchase additional leave with the agreement of their employer;
4. Change in the span of hours in a workplace or section of a workplace with the agreement of 75% of employees;
5. Agreement to share a reduction in working hours in a workplace or section of a workplace with the agreement of 75% of employees in circumstances where an employer cannot usefully employ all of the full time and part time employees in a workplace or section of a workplace;
6. Employer direction to an employee to perform all duties within their skill and competency;
7. Employer direction to an employee to work at a different workplace (including the employee’s home); and
8. Employer direction to employees to stagger starting and finishing times of work.

Any parties that enter such agreements consent to arbitration of any disputes that may arise through the Commission. This Schedule will replicate some of the powers of the JobKeeper Scheme and will allow employers to negotiate such agreements without the requirement of satisfying the JobKeeper test. The Commission is still accepting submissions, but we will update you once the Schedule comes into effect.

Union update: Right of entry powers and employer breaches

ACT have extended right of entry powers through the Employment and Workplace Safety Legislation Amendment Bill 2020, right of entry permit holders now have additional rights when collecting evidence of any breaches of work health and safety. Section 118 of the Work Health and Safety Act 2011 (ACT) now allows permit holders to “take photographs, films, or audio, video or other recordings relevant to the suspected contravention”. Any employer who attempts to prevent the permit holder from exercising these powers will be in breach of their work health and safety duties under the Act.

In Construction, Forestry, Maritime, Mining and Energy Union v Kyren Pty Ltd a manager and an employer were found to be in breach of the FWA by intentionally blocking the Union officials from entering the site and tearing up their right of entry notices. The company and the manager were fined $5,600 and $15,00 respectively. While not a small fine, it will have cost them a lot of time and effort to dispute the claims and that one moment of anger will no doubt increase the Union presence on their site and industrialise the site. This is a reminder to all employers to not act impulsively. If you want to pick a fight be right.

WHS Code of Practice on managing psychological risks

The NSW Government have introduced a new Code of Practice to assist businesses in managing psychological risks including being able to effectively identify the risks and how to put safe controls in place to manage and eliminate the concerns. While Codes of Practice are not mandatory or legislation, Safety Regulators will use information in these resources to establish what is industry knowledge to explain what actions are reasonably practicable. Therefore, all businesses should at least be familiar with this Code of Practice especially as the pandemic has led to a concerning increase in psychological risks.  Read more detailed information about the Code here.

Failure to prioritise safety can result in hefty fines

Too often employers are focussed on operational issues and unintentionally, safety becomes a secondary consideration. It is often not prioritised and fails to capture the investment it deserves. These cases demonstrate what a costly mistake that can be.

In Workplace Health & Safety Queensland v Oil Tech International Pty Ltd, the employer was found to be in breach of their primary duty of care and guilty of reckless conduct. A tanker of water and petrol had been emptied on a driveway close to where a worker was using a heat gun. The close proximity ignited the petrol vapour and the worker was burnt to death. While the employer had a lack of safety processes in place, of particular concern was their generic procedures and that training was not tailored to the high-risk work. Workers were not aware of the danger of heat sources around hazardous materials and were not equipped to safely carry out the work. This resulted in a substantial fine of $800,000.

Similarly in Filiposka v Coles Supermarkets Australia Pty Ltd [2020] NSWDC 540, Coles was severely punished by the Court for choosing to prioritise budgetary concerns over safety considerations. A delicatessen manager suffered an incapacitating lumbar disc lesion when she bent down to lift a heavy crate of chicken carcasses. In the tight space, the worker was unable to lift the crate safely in line with procedures as she had been working alone. The Court found there was insufficient workers as management would roster less employees to save the department money. Failure to implement simple steps like risk assessments cost Coles $828,555.

Demonstrably, employers who do the bare minimum will automatically fail the ‘reasonably practical’ test. Remember, the higher the risk the higher the onus on you to thoroughly assess the risk and put sufficient controls in place. Reasonably practicability does not require you to go out to invest in top of the line safety controls, but you must have done everything you reasonably can to mitigate or prevent the risk. Reducing the safety budget may appear a short-term necessity but it can lead to significant long term costs, including the loss of life, severe injury, loss of productivity, prosecution fines and workers compensation claims.

Some lessons from case law

The month of September has also produced some interesting cases. Here’s a quick summary of lessons from this month:

1. Employers cannot prevent workers from having drink and toilet breaks as this would be a breach of their duty of care. See Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258.
2. Employees have a right to refuse to attend work if there are legitimate safety concerns. See Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Limited [2020] FWC 4623 where the employer was ordered to pay all employees 50% of their wages for the stand down period (they had been stood down when they refused to work due to safety concerns).
3. Reliance on technical specifications is not enough if there are safety concerns. Employers have a duty to undertake their own site-specific assessments. See WorkSafe Health and Safety QLD v Holcim (Australia) Pty Ltd where the employer was fined $300,000.
4. Serious breaches of safety constitute serious misconduct and can be acted upon to immediately terminate employees. See Young v The Trustee for Cookers Trust (Cookers Bulk Oil Systems Pty Ltd) [2020] FWC 4551 where an employee’s road rage caused them to deliberately swinging another truck into their lane which could have resulted in a crash. The dismissal was deemed to be fair.
5. Do not terminate a health and safety representative when they make a complaint to the regulator guaranteed winning adverse action case. See Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 where the employer and manager were fined $50,000 and $10,000 respectively.

Useful Links

• SafeWork Be Upstanding Toolkit – address issues with prolonged sitting
• SafeWork Case Studies of OHS duties during COVID
• SafeWork Transitioning Back to Usual Workplaces checklist
• WorkSafe Victoria’s WorkWell Toolkit
• SafeWork Australia National guide for safe workplaces – COVID-19
• WorkSafe Victoria’s guide for ensuring the safety of dangerous goods during a shutdown due to coronavirus
• COVID-19 Code of Practice (read our article)