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Workplace in-Brief: 2 October 2020

Andrew Douglas


News and developments

  • COVID-19/JobKeeper Update:
    • Qantas – JobKeeper Offset doesn’t fly!
    • Award Flexibility
    • What is stand down?
    • Victoria high-risk testing

Case updates

  • Unfair dismissal: 2 poos don’t make a right!
  • Safety: Living in Dreamworld – the biggest fine in history of Australian OHS

COVID-19/JobKeeper Update

Qantas – JobKeeper offset doesn’t fly!

If you want to spend three hours of your life pointlessly – try and unravel how JobKeeper deals with payment in arrears of overtime. If it helps, here is the answer.

What an employee is paid in the above circumstances under JobKeeper has been clarified in the Federal Court decision of Qantas v Flight Attendants Union.

The JobKeeper subsidy can only be used to subsidise monies payable from work undertaken in that fortnight (or JobKeeper paid to an employee when stood down). Therefore, if wages are paid in arrears, and overtime was worked in a prior fortnight period, but payable in a next fortnight (and the employee is stood down during this later period) – the employee has an entitlement to the full JobKeeper subsidy in the fortnight they are stood down and the monies from the past fortnight for overtime (payable in the fortnight when stood down) pursuant to his or her contract or other industrial instrument. It is unintended windfall for the employee.

The decision makes it clear that JobKeeper payments cannot be offset against the overtime payment earned in the prior fortnight and payable in the next. Qantas have suggested they will appeal.

Award Flexibility

As indicated last week the FBFWC, has extended Schedule X Award Flexibility provisions to now 74 Awards, permitting unpaid pandemic leave and taking leave on half pay up until March 28, 2021. See COVID-19 Award Flexibility Schedules [2020] FWCFB 5137 (24 September 2020). The Clerks Award is under review as we speak but the Union is resisting an extension-decision this Friday

What is stand down?

JobKeeper allows flexibility with enabled stand downs. Sections 524-526 of the FWA does not. It requires an employee’s work to be ‘stopped’ by something which Is not caused by the employer, and there is no other useful employment. Apparently, the pandemic stopping non-teaching staff is not a stoppage. So found the FWC in a case we ran called IEU v PGS. Not surprisingly we appealed the following day. Ivanhoe Grammar are next up before the FWC against the IEU.

The IEU argument is the pandemic hasn’t stopped teaching, just changed it to remote teaching. So, there is reduction in work but not a stoppage. But the FWA is clear it is not the business but the employee who is stopped from working. Watch this space. I think we will be vindicated. For independent schools, and all other non-JobKeeper employers who have suffered significant loss but not the 30% required by JobKeeper, the decision is a nail in the coffin, contrary to the plain words of the section and means business must pay people it can’t use because of a pandemic! But employers who were initially eligible for JobKeeper, now with a small loss of 10%, still have access to JobKeeper enabled decisions. Independent Schools lost money, couldn’t get the JobKeeper subsidy and now are deprived of a remedy. Hard to fathom.

Victoria high-risk testing – 25% of worker present tested a week

High risk industries are food production, sale or refrigeration business. The Victorian Government will require weekly testing for 25% of employees, even though not symptomatic, to try and break the back of the virus in the areas of greatest risk of transmission.

Case updates

Unfair dismissal: 2 Poos don’t make it right!

We rarely get cases about people defecating. As a young boy I would be in fits of giggles just thinking about it. But in Lear V BHP it was no laughing matter.

A technician’s employment with BHP was terminated for defecating on two separate occasions down active drill holes. The risks for BHP were straight forward. Condonation-BHP had not addressed the issue of employees urinating around mine sites. The investigation was rough and ready. The supervisor lacked literacy and yet he was the person who put the allegations and weighed the responses. BHP didn’t realise his limitations.

Mr Lear’s issues were less nuanced. Defecating down a drill hole used for explosives (even though he said it was urgent) has some obvious issues. The evidence revealed he could have moved 40 metres away, off the work area if very urgent and toilets were positioned a 6 minute drive away.

The FWC found the nature of his conduct was inexcusable and the procedural failings, such as they were, should not defeat the dismissal. Especially when he had exhibited disrespect and poor conduct before.

Simple Rule in FWC – the worse the misconduct the less concerned the FWC is with small flaws in procedure.

Safety: Living in Dreamworld – the biggest fine in history of Australian OHS

The death of four people on a ride in Dreamworld, run by Ardent, led to the Queensland, Victorian and Northern Territory governments clamouring to introduce industrial manslaughter. Each competing with each other as to who would have the biggest penalties (NT winning with life in jail). But it is now clear that Ardent, the ride operator, would never be charged with industrial manslaughter (if it could have been at the time).

The option was there for WorkSafe Qld to charge them with Reckless Endangerment (a lesser charge than industrial manslaughter but more serious than primary duty breach). Instead, Ardent was charged with 3 general duties breaches – with a maximum possible fine of 4.5M, and received a fine of 3.6M. A fine outside the tariffs of penalties usually awarded. Probably appealable. Based on other cases it is hard to see how the aggregated fines could have passed 2.5m.

Bad publicity has two effects in safety. It drives governments to set up inquiries to distract attention (see Victoria around Hotel issues) and it increases the sentence you receive.

Andrew Douglas


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