News and developments

• COVID-19/JobKeeper Update:
  • The Clerks Award – and the future of WFH
  • JobKeeper and JobMaker
  • Qantas – the latest Federal Court stand down case
  • Pandemic leave in Victoria, WA, SA and Tasmania 

Case updates

• Dangerous trucks

Award Flexibility and the Clerks Award

The Federal Government may have fumbled the ball in IR Reform but President Ross, of the FWC, is influencing reform around WFH in his commentary around the Clerks Award variation case.

The Clerks Award, Schedule I variations, will be extended until 30 November 2020. This means the working from home ordinary hours will be between 6 am and 10pm. The ASU’s submission, that normality was returning and the extended hours were no longer needed, was rebuffed by the FBFWC. It noted there is and will be a continuing need and desire to WFH. This assists on loosening up the Ordinary Hours structure in the Award to facilitate flexible work. A timely and progressive step that advances the opportunities for all employees, but particularly women (as they are commonly the primary care giver), families and business.

Budget

No surprises here. JobSeeker will be extended as we have previously reported until March 2021. JobMaker will credit employers who hire a person between the aged of 16-35. The credit will be $200 per week for employees aged 16-29 and $100 per week for employees 30 -35. The credit system will last for 12 months. Nina’s article explains these updates in more detail.

Qantas and Stand down

Qantas has been a consistent litigant during the pandemic. In the second Qantas v ALAEA case, Justice Flick helpfully settled what is a ‘stoppage of work’ and what is the test of ‘for any cause for which the employer cannot reasonably be held responsible’. The case will now go back to the FWC to determine if there was any ‘useful work’ for the employees.

Last week we considered the decision of Commissioner Bissett in IEU v PGS where the Commissioner essentially said there was no stoppage in the work of the PGS, just a reduction in work. The decision characterises work, as that of the employer not the employee. Justice Flick’s decision puts that notion to the sword. Both the FWA, and the Qantas Enterprise Agreement expressly uses the word employee not employer. It is a stoppage of the employee’s work not the schools’ work.

However, the Qantas decision goes further, explaining that the cause is the ‘natural and probable consequence’ not the direct cause of the stoppage. Yes, there was work the engineers could do but Qantas was faced with international rules that prevented most flights, our own Governments rules and decided to stand down based on the company’s continuing viability. Yes, it was a ‘reduction’ in business, but Qantas made a decision around the viability of the company to stop as it was not reasonable for them to continue. They were not seeking to maximise their profits -simply to remain sustainable and viable. This is a really helpful decision for employers who are not eligible for JobKeeper and the industrial tools available as a legacy JobKeeper or actual JobKeeper employer.

Pandemic leave

Just a reminder that the $1500 Pandemic Leave Disaster Payment is now available for Western Australia, South Australia Victoria and Tasmania.

As Nina explained in the last 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.

Case Update: Dangerous trucks

1. Remembering Orbit Drilling and Colbert
2. WorkSafe v Valley Sweep and Zakic s.21 and 144 OHS Act
3. Magistrates Court max fines of $386k and $78k (County Court $1.4m and $280k)

Everyone involved in safety knows the most dangerous safety hazards are motorised vehicles- whether it be a forklift, car or truck, involving driving, maintenance or traffic management. Yet we remain blissfully cavalier with planned maintenance and the care and control of motorised vehicles.

Trucks are workhorses. They need planned and qualified maintenance. Their size and use mean they are an ever-present risk to the public, the driver and other employees.  The first reckless endangerment case in Australia with a custodial sentence was Orbit Drilling. It was the first custodial sentence (wholly suspended) in Safety Law in Australia. Colbert followed shortly after where the owner was charged with criminal manslaughter, and on Appeal, still received over 10 years jail on the bottom end of his sentence.

In the last few days, in the case of  WorkSafe v Valley Sweep and Zakic , a Latrobe Valley Magistrate sentenced Valley Sweep and its officer to maximum fines that could be given in the Magistrates Court of $386k (in County $1.4m) and $78k(in County $280k) respectively for general duty breaches and officer breach of diligence requirements.

Valley Sweep failed to maintain the water truck a young man drove causing his death. Such maintenance work that was undertaken, was done by non-qualified mechanics causing the brakes to be not correctly adjusted and they failed.

For more case law and legislative changes, please see our October edition of Safety in-Brief.