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Perspective

Workplace In-Brief: 25 August 2020

Welcome

Welcome to the first edition of Workplace In-Brief, a succinct weekly bulletin to keep you updated on the most significant and interesting developments across workplace law.

COVID-19

The endless suggestions about the extension to JobKeeper continue to bedevil business certainty. What seems clear is the new step-down JobKeeper arrangement (drop in payment levels in September 2020 and January through to March 2021) will be passed by Parliament without the IR rider, allowing no longer eligble employees to utilise the JobKeeper enabled directions and requests. This should pass Parliament in the next few weeks.

We are seeing the Courts and Tribunals take a strong stand on protecting employees from COVID, particularly the recent case of Hooshmand v Cater Care Operations, where a catering assistant intentionally coughed on an employed nurse was dismissed. Employees who fail to honour their safety obligations around COVID will get no assistance from the Fair Work Commission (FWC). This will lead to employers building policies and procedures that require employees to be vaccinated (when one becomes available). A failure to be vaccinated could be a valid reason to terminate.

The FWC, in Stelzer v Ideal Acrylics, followed prior judgments in La Pume v Thomas Foods and Marson v Coral Princess, that JobKeeper Enabled Stand downs must be done fairly across the employee group and not fall upon one or a small group of employees.

The Andrews Victorian Government has announced an extension to rent relief and halt on eviction – more this Friday from our Head of Commercial, Sotheary Bryant.

Safety

Queensland has commenced its first Industrial Manslaughter prosecution against an individual, pursuing Jeffery Owen, a director of Owens Electric Motor Rewinds, because of an overloaded forklift tipping and killing a worker. The regulator will need to prove a breach of safety duty, the breach was caused be a high level of negligence and caused death. There are several prosecutions for Industrial Manslaughter throughout the four jurisdictions who have Industrial Manslaughter (or Workplace Manslaughter) and it is clear that both the Governments in these jurisdictions and the regulators are actively pursuing prosecutions.

Recently, we have seen several cases in WHS jurisdictions where directors who are ignorant of a known hazard are being prosecuted for failing to exercise due diligence. The most recent being Mr Tiarne Cook in H & T Cook Enterprises.  In Victoria and WA, there is implied due diligence (Officer needs to know the risk then tests below apply) but throughout the remainder of Australia and NZ, directors and other officers, must know the high risks in their business, have relevant safety and legal knowledge, ensure sufficient resources are made available to eliminate or manage those risks  and ensure the organisations systems have integrity.

Contractor Management – Specialist Contractors

This is the second in the four-part series on Contractor Management.

Specialist contractors are chosen to undertake work on behalf of the Principal Contractor.

Selection of the Specialist Contractor focusses on their specialised skills and specialised safety skill in executing their work. However, the Principal Contractor cannot delegate the safety responsibility to the specialist contractor unless:

  1. The specialist contractor is a specialist and skilled in the safe execution of their work;
  2. The specialist contractor has specialised safety skill the principal contractor doesn’t have (for example a large builder contracts out part of the formwork but has skills and assets in formwork themselves-the principal contractor will remain on risk); and
  3. There is no residual safety responsibility held by the Principal Contractor e.g, the Principal Contractor is responsible for entry and exit of the site and therefore traffic management.

Remember that the regulator will prosecute both e Principal Contractor and the Specialised contractor where the above where all conditions are not met.

Workers’ Compensation

Be careful about narratives that doubt employees incapacities, especially based upon surveillances that lacks context, see the recent case of Chugha v Comcare ( a worker with psychological injury who travelled overseas and participated in an election process as a candidate). Care needs to be taken to discuss your concerns with your employees treating health professional- a mistake made in Chugha and in the past in Marshall v the Commonwealth and KInnane v DP World. When someone suffers a mental or physical injury it doesn’t mean they are completely incapable of everything.

Chugha also raised the issue of the use of covert surveillance. In some states and territories like NSW and Qld, employees must be warned of such surveillance. The facts that surveillance occurred and was obtained unlawfully, doesn’t mean the evidence can’t be used in the FWC or a Court see Krav Mag v Markovich – it may be more difficult to get it admitted into evidence.

Employment Contracts

There are many times when a person enters your business and is not meant to be an employee. The obvious examples are people doing work experience and students undertaking placements. Great care should be taken to make it objectively clear such people are not employees. As the test of whether you have entered an employment contract is an objective test based on the facts not subjectively what you, as an employer say happened-see Woldeyonhannes v Zion Church. In that case a person was given the position of an Assistant Pastor, a calling from God according to Zion Church not employment. He was paid $750 per fortnight, accrued annual leave and had a continuing expectation of employment and payment of the fortnightly stipend. The FWC held that he was an employee.

Written by Andrew Douglas

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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