Topic: Australia

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Sometimes it isn’t about the destination: Journey-claims and the associated risks for employers

Most employers are conscious of their health and safety obligations for when employees are at work, but what about employer obligations to employees travelling to and from work?  A recent New South Wales decision highlights the importance of employers taking a holistic approach to fatigue management both within and outside of the workplace.… Continue Reading

Temporary variations to the Hospitality and Clerks modern awards in response to the COVID-19 pandemic

The Fair Work Commission (FWC) has acted on applications made by employer associations and unions by varying a number of awards to introduce temporary flexibility provisions in light of the COVID-19 pandemic and the associated public health orders. These important measures aim to provide employers with the flexibility to resource their businesses appropriately in the current climate whilst maintaining compliance with the applicable modern award, allowing them to continue active operations and retain employees.… Continue Reading

Australian Human Rights Commission – Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces

The Australian Human Rights Commission (AHRC) has recently released its ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ report (Report) in response to the decision in June 2018 by the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, to launch the independent national inquiry into sexual harassment in Australian workplaces (Inquiry).… Continue Reading

Coronavirus and Discrimination: The balance between protecting the workforce and community and avoiding unlawful discrimination  

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”.… Continue Reading

Australia – What to look out for in employment law in 2020

2019 saw many legislative and jurisprudential developments in employment law which should be top of mind for employers moving forward in 2020.  In this article, we summarise the main issues to watch in 2020.

The underpayment crisis – “wage theft”

The recent spate of very public self-reported wage underpayments by businesses has resulted in increased scrutiny into “wage theft”.  The Fair Work Ombudsman (FWO), for example, has prioritised issues of wage underpayment and non-compliance with awards and the National Employment Standards (NES).  The FWO will also take a stronger approach to enforcement in relation to non-compliance, … Continue Reading

Australia – Things to look out for in WHS law in 2020

This blog identifies developments in WHS law to watch in 2020:

Industrial Manslaughter Offences

The number of Australian jurisdictions with industrial manslaughter offences in operation will expand this year. Currently, the ACT and Queensland are the only states with such legislation in operation.

The Victorian law, the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 will come into force on 1 July 2020 (potentially earlier), while the Northern Territory legislature has passed similar amendments introducing industrial manslaughter offences to commence operation later in the year but with a date yet to be fixed. Industrial manslaughter laws were … Continue Reading

Taking it a day at a time

Section 96 of the Fair Work Act 2009 (Cth) (the Act) provides that “for each year of service with his or her employer, an employee [excluding casual employees] is entitled to 10 days of paid personal/carer’s leave”.  This entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and it accumulates from year to year.

What is a day?

In a recent case the Full Court of the Federal Court of Australia had to consider the meaning of “day” in section 96 of the Act.

The case related to a group of employees … Continue Reading

Industrial manslaughter progresses in the Northern Territory and Western Australia

Following our recent updates regarding the introduction of workplace manslaughter laws in Victoria (see our blog article here) and proposed legislative changes in New South Wales (see our blog article here), there have now been further developments, with industrial manslaughter laws being passed in the Northern Territory (NT) and proposed in Western Australia as part of a mirror work health and safety (WHS) Bill.… Continue Reading

Don’t be so reckless – Employer convicted in first successful safety prosecution for bullying under the harmonised WHS Act

Safe Work Australia has recently revealed that the number of serious workplace injuries related to bullying and harassment has nearly doubled in Australia since 2009.  Mental health-related  claims that involve workplace harassment or bullying are skyrocketing, with about a quarter of all psychological claims based on allegations of workplace harassment or bullying.  In the 2019/20 financial year, over 1,800 people were compensated for a workplace injury sustained through workplace bullying or harassment.

In light of these numbers, WHS regulators around the country have become increasingly focussed on prosecuting individuals for bullying-related breaches of the national harmonised WHS law.

Highlighting the … Continue Reading

Wrong interpretation of industrial agreement leads to successful underpayment claim for 150 workers

The Federal Court of Australia recently decided in favour of a representative proceeding (more commonly known as a ‘class action’) brought on behalf of approximately 150 workers, and backed by the Construction, Forestry, Mining, and Maritime Employees Union against Thiess Pty Ltd, on the question of payment for travel time at the end of a worker’s shift.[1] The case is part of the growing trend of class actions in the employment sphere.… Continue Reading

New South Wales responds to Marie Boland Review recommendations

New South Wales has introduced a WHS Amendment Bill (Bill) in response to the recommendations of the Marie Boland report issued in February 2019 (see our blog article here regarding the Marie Boland review). The changes, if passed, will commence on the day they receive royal assent.

The Bill proposes to:

  • increase maximum penalties (with the maximum penalty for category 1 offences to increase from $3 million to $3.46 million);
  • create a penalty unit system to ensure maximum penalties increase every year to reflect changes to the consumer price index;
  • prohibit insurance against safety fines for offences under
Continue Reading

Workplace manslaughter legislation introduced in Victoria (Part 3)

Bill update

As reported in earlier articles on this blog, the Victorian Legislative Assembly has heard the second reading speech of the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) (the Bill) and passed the Bill on 14 November 2019.

The Bill was sent to the Legislative Council on 14 November 2019 at which time it received its first and second reading.  The Legislative Council heard that the Bill seeks to amend the Occupational Health and Safety Act 2004 (OHS Act) to provide for offences for workplace manslaughter and will provide … Continue Reading

Employee dismissed following long term absence due to mental illness: Federal Court finds it lawful

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 … Continue Reading

Workplace manslaughter legislation introduced in Victoria (Part 2)

Yesterday, 30 October 2019, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) (the Bill) received its second reading speech in the Victorian Legislative Assembly. The Bill, if passed, provides for the new offence of ‘workplace manslaughter’ to come into operation on a day to be proclaimed or on 1 July 2020 at the latest.

The Bill and explanatory memorandum are now also available. According to the explanatory memorandum, the purpose of introducing the offence of workplace manslaughter is to “…hold those with the power and resources to improve safety to account, such Continue Reading

Industrial Manslaughter laws introduced to Victorian parliament today

As reported in our earlier article (found here), the Victorian government announced in 2018 that it would introduce an industrial manslaughter offence. The Minister for Workplace Safety, The Hon Jill Hennessy, today announced that new ‘workplace manslaughter’ laws were introduced in Parliament.

The Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 has been introduced to amend the Occupational Health and Safety Act 2004 (Vic) although a copy of the Bill is not yet available.

The media release states that the proposed laws will apply to employers, self-employed persons and ‘officers’, who negligently cause a workplace … Continue Reading

First Industrial Manslaughter prosecution in Queensland

On Friday the Minister for Industrial Relations announced the first prosecution in Queensland for industrial manslaughter under the Work Health and Safety Act 2011 (Qld) (the Act). The industrial manslaughter prosecution has been brought against Brisbane Auto Recycling Pty Ltd (Brisbane Auto) arising from the fatality of a worker killed by a reversing forklift on 17 May 2019. Two of Brisbane Auto’s directors have been charged for engaging in reckless conduct resulting in the death of a worker.

The industrial manslaughter provisions commenced on 23 October 2017 as a result of the Work Health and Safety Continue Reading

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