Asia Pacific

Subscribe to Asia Pacific via RSS

The High Court has recently clarified the application of the reasonable administrative action exclusion for workers’ compensation claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA).

The SCRA excludes liability to compensate an employee for an injury or condition suffered as a result of reasonable administrative action taken in a reasonable manner.  Reasonable administrative action includes reasonable performance appraisals, disciplinary action and actions done in connection with an employee’s failure to obtain a promotion or benefit, or to retain a benefit.

In Comcare v Martin [2016] HCA 43, the High Court examined the causal connection required between the condition suffered and the reasonable administrative action.

A series of recent cases demonstrates that the Fair Work Commission (FWC) will, with increasing frequency, revoke or suspend union entry permits following findings of contraventions of the Fair Work Act 2009 (Cth) (FW Act). 

So far this year, in 3 separate cases, the FWC has suspended or revoked the entry permits of 7 officials of the CFMEU following findings that the union officials misused their right of entry permits.  See Fair Work Commission v Roberts [2016] FWC 4052 (29 June 2016), Director, Fair Work Building Industry Inspectorate v Vink [2016] FWC 2512 (20 April 2016), and Director, Fair Work Building Industry Inspectorate v CFMEU [2016] FWC 811 (7 March 2016).

An entry permit is an essential requirement for a union official to have and exercise a statutory right of entry to workplaces under the FW Act.  This right of entry is a key tool used by union officials for the purpose of discussion with members and potential members, including for recruitment, and investigation of compliance by employers.  However, it is a right susceptible to misuse and abuse in a manner significantly disruptive to an employer’s operations.

Well known organisations that are convicted for work health and safety offences may face higher fines, following a recent decision of the New South Wales Court of Criminal Appeal.

Tho Services Limited pleaded guilty to three breaches of section 19 of the Work Health and Safety Act 2011 (NSW), after a work experience student sustained permanent eye damage while performing welding tasks without wearing appropriate eye protection.

The New South Wales Court of Criminal Appeal fined Tho Services $240,000.  In doing so, it overturned an earlier decision of the New South Wales District Court, that Tho Services only be required to pay $28,000 for the prosecution’s costs.

A recent decision of the Western Australian Industrial Magistrates Court[1] has provided a timely reminder that, where employers pay an annualised salary to an award-covered employee, specific wording may be required in the contract of employment to ensure the higher salary can be offset against specific award entitlements that are not separately provided, such as payment for overtime or leave loading.

A worker who injured herself when she went for a run whilst working from home has had her application for workers compensation dismissed, but only on the basis that the injury did not occur during an ‘ordinary recess’.

Background

In Demasi v Comcare (Compensation) [2016] AATA 644 (26 August 2016), the Administrative Appeals Tribunal (AAT) heard that the applicant took a break from her work at 9.45am (on a day when she was working from home) and went for a run.  She tripped on an uneven surface and landed awkwardly, breaking her right hip.  The applicant claimed compensation on the basis that the injury she suffered arose out of or in the course of her employment.  Comcare denied liability.

In the review application, the AAT heard that the applicant ‘often’ worked from home – estimated at approximately 30 per cent of her total work time.

On the day of the injury, the applicant began work at 7:30am and decided to take an early break in order to go for a run.  The injury occurred 30 minutes into the run.  There was evidence from the applicant’s manager that she was aware that the applicant would regularly run during her recess breaks.

Last month, the Fair Work Commission upheld a decision to dismiss an employee for breaching its zero tolerance policy on illicit drugs, confirming the importance of having a clear drug and alcohol policy that is effectively communicated and consistently applied.

The employer, Coles Group Supply Chain Pty Ltd (Coles), summarily dismissed Shane Clayton who tested positive to cannabis, in breach of Coles’ drug and alcohol policy, which clearly stipulated cut-off levels of alcohol intake and a zero tolerance to illicit drugs for any person employed “at any Coles Distribution Centre in any position.”[1]

Whilst the fairness of a dismissal for breaching a zero tolerance policy is ultimately for the Commission to determine, taking into account the nature of the workplace, the risks associated with employees working under the influence of alcohol or illicit drugs and the absence of an appropriate objective test for impairment, the case confirms that an important consideration is the language of the policy.[2] In this case, Coles’ policy stated that it was directed to providing “a conclusive (positive/negative) result and not to establish[ing] the extent to which a person may be impaired from performing work tasks.”[3] It also clearly stated that a positive test for illicit drugs could result in dismissal.

An employer generally does not have any right to direct how an employee conducts themselves outside of their employment.  For an employee’s “out of hours conduct” to be a valid reason for dismissal, the conduct must have a relevant connection to the employment relationship.

In the recent decision of Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations / Warkworth Mining [2016] FWC 6018, Commissioner Saunders of the Fair Work Commission (FWC) has considered the factors which go to establishing a relevant connection between an employee’s out of hours conduct  and their employment, and whether such conduct was a valid reason for the employee’s dismissal.

It is generally accepted that the common law will imply a term of “reasonable notice” into a contract of employment which makes no provision for termination notice.  However, this general rule was displaced by the case of Brennan v Kangaroo Island Council [2013] SASCFC 151 which found that reasonable notice may not be implied in circumstances where an employee is covered by a modern award which prescribes a period of termination notice.  Recent cases have considered whether s 117 of the Fair Work Act 2009, which prescribes a minimum period of termination notice, should also displace the general rule.  Whilst this was supported by the South Australian District Court in Kuczmarski v Ascot Administration P/L [2016] SADC 65, in the more recent case of McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 Judge McNab of the Federal Circuit Court of Australia (FCCA) confirmed that s 117 provides minimum periods of termination notice only, and consequently does not displace a right to implied reasonable notice.

During negotiations with potential employees, employers should exercise significant caution in making representations as to the future economic performance of the employer and its impact upon the remuneration payable to the employee in their employment.

Such pre-employment negotiations are likely to be held by Australian courts to be conduct “in trade or commerce” for the purpose of claims by the employee under the misleading and deceptive conduct provisions of the Australian Consumer Law (ACL).

This means that employees seeking to bring misleading and deceptive conduct claims in relation to pre-employment representations are not necessarily restricted to bringing such claims under the provisions of section 31 of the ACL (dealing with misleading conduct relating to an offer of employment), but may also bring claims under the more general prohibition on misleading or deceptive conduct undertaken in trade or commerce under section 18 of the ACL.