For the first time in the 37 years since the Occupational Safety and Health Act 1984 (OSH Act) came into effect, an individual has been sentenced to imprisonment in Western Australia. The successful prosecution may be one of the last prosecutions brought under the OSH Act which is soon to be replaced by
Shannon Walker
Australian Sexual Harassment Landscape to Change
By Alexandra Shields, Shannon Walker & Electra Dow on
In mid-March 2021, amendments were sought to the Sex Discrimination Act 1984 (Cth) (SD Act) by independent member Ms Zali Steggall OAM introducing the Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill (Bill). If passed, the Bill will address some of the shortcomings in the SD Act which were initially highlighted…
Western Australia set for WHS Reform
By Katherine Morris, Annika Martz & Shannon Walker on
The Work Health and Safety Bill 2019 (WA) received assent on 10 November 2020 (WHS Act). The WHS Act introduces the offence of industrial manslaughter and will harmonise WA’s work health and safety (WHS) laws with most other Australian states and territories. This harmonisation is long overdue in WA with the other states…
The Miscellaneous Award now has greater reach
By Shannon Walker on
On 12 February 2020 the Fair Work Commission (Commission) amended the Miscellaneous Award 2010 with effect from 1 July 2020. The changes extend the coverage of this Award to traditionally award-free employees with potentially far reaching consequences for some employers.
Amendments to the Fair Work Act 2009 (Cth): Workplace flexibility for JobKeeper employers in response to COVID-19 pandemic
By David Cross, Shannon Walker & Norah Chafardet on
On 8 April 2020, the Commonwealth Parliament passed amendments to the Fair Work Act 2009 (Cth) (FW Act) to assist employers who qualify for the JobKeeper scheme to deal with the economic impact of the Coronavirus.
COVID-19: What are an employer’s obligations to pay an employee who cannot attend work?
By Shannon Walker on
As Australian businesses scramble to implement a COVID-19 task force, response plan and risk management protocols, at some point they may face a very important issue: to pay or not to pay their employees.
Coronavirus and Discrimination: The balance between protecting the workforce and community and avoiding unlawful discrimination
By Shannon Walker on
Last week a Malaysian student of Chinese descent returned to her rented home in Perth’s southern suburbs after visiting family in Malaysia for a few weeks. Upon arriving home, she found the locks had been changed and a handwritten sign was on the door, notifying her she was no longer welcome in the house given the coronavirus “emergency”.
Coronavirus: what should AU employers be doing?
By Shannon Walker on
Australia, like many countries, is closely monitoring an outbreak of respiratory illness caused by a new coronavirus first identified in Wuhan, Hubei Province, China in December 2019.
In order to meet their duty of care to workers, there are a number of steps employers should now be taking.
Employee dismissed following long term absence due to mental illness: Federal Court finds it lawful
By Shannon Walker on
In an important decision last month, the Full Court of the Federal Court of Australia upheld the appeal of an employer who claimed, in dismissing a client executive who had been absent from work for 7 months due to mental health issues, it had acted lawfully and not dismissed him because of his illness.[1]
The judge at first instance had found the employer liable for breaching the ‘adverse action’ provisions of the Fair Work Act 2009 (Cth) (FW Act) because the employee’s mental illness could not be disaggregated from the employer’s reasons for dismissal.[2] This decision was seen by many as setting a dangerous precedent and employers should welcome the clarification provided by the Federal Court appeal bench.
Why sacking senior executives is a risky business
By Shannon Walker on
Since the enactment of the ‘adverse action’ provisions under the Fair Work Act 2009 (Cth) (FW Act) some 10 years ago, it is far more difficult for an employer to lawfully dismiss an executive or senior manager. Why? Because adverse action claims:
- are relatively easy to bring;
- can include compensation for hurt, distress and humiliation (and damages are uncapped);
- can be difficult to successfully defend (due largely to a reverse onus of proof); and
- expose the employer to considerable financial, legal and reputational risks – even when there was a good reason to remove the executive and the terms of the employment contract were complied with.
It is therefore not surprising that the number of senior, and highly paid, individuals commencing adverse action claims to challenge their dismissal is continuing to trend upwards. So, what are adverse action claims and how can an employer protect itself against these risks?