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New offences and powers under Victorian Occupational Health and Safety laws

Photo of Nicki MilionisBy Nicki Milionis on Posted in Australia

The Occupational Health and Safety and Other Legislation Amendment Act 2021 (the amendment Act) was passed by the Victorian Parliament on Thursday 16 September 2021, and amends the Occupational Health and Safety Act 2004 (Vic) (the Act).

Labour Hire

On the first day after the end of a 6 month period, new provisions in relation to labour hire commence.  Those provisions provide that:

  • for the purposes of the Act, an employer of a worker is defined as including workers supplied by, recruited for or placed by a labour hire services provider, to work for the person;
… Continue Reading

New infringement notices for offences against Victorian Occupational Health and Safety laws

Photo of Nicki MilionisBy Nicki Milionis on Posted in Australia

WorkSafe inspectors will now be able to issue infringement notices to companies and individuals for certain occupational health and safety offences.

The Occupational Health and Safety Amendment (Infringements and Miscellaneous Matters) Regulations 2021 (Vic) which amends the Occupational Health and Safety Regulations 2017 (Vic) (2017 Regulations) commenced on 31 July 2021 in Victoria.

Section 139(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) states that the regulations may provide that a person be served with an infringement notice as an alternative to prosecution for an offence (not including an indictable offence) against the … Continue Reading

High Court clarifies definition of casual employee

Photo of David CrossBy David Cross on Posted in Australia

The High Court has upheld the employer’s appeal in the Rossato casual employment test case, and in the process has clarified the definition of casual employment (Workpac Pty Ltd v Rossato [2021] HCA 23). However, the practical significance of this decision has been limited by recent legislative amendments.

The High Court held that a casual employee is one who has no firm advance commitment from the employer as to the duration of the employee’s employment or the days (or hours) the employee will work, and provides no reciprocal commitment to the employer.  Where parties have a written contract and adhere … Continue Reading

Government introduces legislative changes following the Respect@Work report

Photo of Alexandra ShieldsPhoto of John TullioBy Alexandra Shields and John Tullio on Posted in Australia, Discrimination and harassment

On 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendments Bill 2021 (Cth) (Bill) into the Senate.  The Bill amends both the Sex Discrimination Act 1984 (Cth) (SDA) and the Fair Work Act 2009 (Cth) (FWA) in response to the Respect@Work report (the Report) and implements many of the recommendations of the Report.  The Bill aims to “strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace.”

The Bill … Continue Reading

AHRC Report: ASX200 companies and sexual harassment

Photo of Alexandra ShieldsPhoto of John TullioBy Alexandra Shields and John Tullio on Posted in Australia, Discrimination and harassment

On 17 June 2021, the Australian Human Rights Commission (AHRC) released the “Equality across the board: Investing in workplaces that work for everyone (2021)” report (AHRC Report).  The report collates survey and interview data from 118 ASX200 listed companies to portray how these companies are currently combatting the issue of sexual harassment and makes recommendations based on these findings.  The AHRC Report builds on the findings and recommendations set out in the Respect@Work report, which discusses the benefits of data collection and transparency around workplace sexual harassment.

The AHRC Report focusses on eight … Continue Reading

SafeWork NSW approves Code of Practice on managing psychosocial hazards

Photo of Katherine MorrisPhoto of Melissa CarnellPhoto of Brittany TyneBy Katherine Morris, Melissa Carnell and Brittany Tyne on Posted in Asia Pacific, Australia, General

SafeWork NSW has approved Australia’s first Work Health and Safety (WHS) Code of Practice on managing psychosocial hazards at work (the Code). The Code took effect on 28 May 2021.

The WHS Act provides that an approved code of practice is admissible in Court proceedings as evidence of whether or not a duty or obligation under the WHS Act has been complied with. A Court may have regard to an approved code of practice as evidence of what is known about a hazard or risk, risk assessment or risk control, and rely on the code of practice in determining what … Continue Reading

West Australian Director becomes first person jailed in WA for WHS breaches

Photo of Nicki MilionisPhoto of Shannon WalkerBy Nicki Milionis and Shannon Walker on Posted in Australia

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 the new Work Health and Safety Act 2020 (WHS Act).

In March 2020 a 25-year-old worker, Mr Jake Williams, was killed and his 21 year old co-worker was seriously injured after they fell nine meters from the roof of a shed they were … Continue Reading

Outcomes of Australian WHS Ministers’ meeting to respond to recommendations arising from the Boland independent review

Photo of Nicki MilionisBy Nicki Milionis on Posted in Australia

The long-awaited meeting of Australian WHS Ministers to discuss the response to the 34 recommendations contained in the Marie Boland independent review of the model Work Health and Safety Laws final report (published in February  2019) (Boland report), took place on 20 May 2021.  We have previously discussed the Boland report and its recommendations in the following blog articles (see here, here and here).

According to the Communique and ‘Agreed response to the Review of the Model Work Health and Safety Laws’ recently published, key issues agreed by the Ministers were, amongst other things, that:… Continue Reading

Australian Sexual Harassment Landscape to Change

Photo of Alexandra ShieldsPhoto of Shannon WalkerPhoto of Electra DowBy Alexandra Shields, Shannon Walker and Electra Dow on Posted in Australia

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 by the Australian Human Rights Commission’s report ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces ’ (Report) in March 2020.

In summary, one of the shortcomings that has been identified is the limited utility of the SD Act as it does … Continue Reading

Workplace sexual harassment: New WHS guidance materials

Photo of Nicki MilionisPhoto of John TullioBy Nicki Milionis and John Tullio on Posted in Asia Pacific, Australia

The focus on sexual harassment in the workplace, particularly as a risk to the psychological health of employees, has continued in 2021.

Australian Human Rights Commission report into workplace sexual harassment

The Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces published in March 2020 (Respect@Work Report), found that whilst the Model Work Health and Safety Laws impose a positive duty on employers to eliminate or manage hazards and risks to workers’ health there is no express prohibition on sexual harassment in the workplace.

The Report made 55 recommendations, including that the Model WHS Regulation be amended … Continue Reading

Changing the law for casual employees

Photo of Helene LeePhoto of Allana SmithPhoto of Joshua RichardsBy Helene Lee, Allana Smith and Joshua Richards on Posted in Asia Pacific, Australia

What has happened so far?

Last month the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021, also known as the Omnibus Legislation, came into effect.  This reformed the legal definition of a casual employee and introduced a statutory definition of a “casual employee” for the first time in Australia.

For a long time, the accepted thinking was that a casual employee was one who was engaged as such and paid a casual loading.  However, more recently, the Courts have taken a broader approach when determining whether an employee was a casual employee, by assessing various factors … Continue Reading

Global client-facing guide on the employment status of gig workers

Photo of Helene LeePhoto of William DawesBy Helene Lee and William Dawes on Posted in Australia

Norton Rose Fulbright Australia’s Employment and Labour team has collaborated with our global counterparts to prepare a guide on the status of gig workers across various jurisdictions. The guide is available here.

Employment and labour practitioners in each jurisdiction have set out the current employment status at law of gig workers, before explaining the grey areas and possible future developments.

The guide is timely in the wake of the widespread economic and employment disruption caused by the Covid-19 pandemic. The Prime Minister instigated an industrial relations reform working group process earlier this year, attended by employers, unions, industry groups and … Continue Reading

Workpac granted leave to appeal Rossato judgment

Photo of Helene LeePhoto of Electra DowBy Helene Lee and Electra Dow on Posted in Asia Pacific, Australia

On 26 November 2020, the High Court granted a special leave application made by labour hire company Workpac to appeal the Full Federal Court’s finding in the matter of Workpac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato) which was handed down earlier this year. In Rossato, the Court held that a casual employee engaged on a regular, systemic and predictable basis was entitled to leave entitlements, plus payment for public holidays, as set out in the National Employment Standards (NES) of the Fair Work Act 2009 (Cth) and, controversially, that Workpac was not entitled … Continue Reading

Western Australia set for WHS Reform

Photo of Katherine MorrisPhoto of Annika MartzPhoto of Shannon WalkerBy Katherine Morris, Annika Martz and Shannon Walker on Posted in Australia

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 and territories having adopted the model WHS laws between 2011 and 2012, with the exception of Victoria which has nonetheless still amended its legislation to provide for industrial manslaughter.

The WHS Act is expected to come into full effect in the first half of 2021 … Continue Reading

WHS regulators issue guides and codes of practice on psychological health and managing sexual harassment claims

Photo of Katherine MorrisPhoto of Annika MartzPhoto of Brittany TyneBy Katherine Morris, Annika Martz and Brittany Tyne on Posted in Australia

Earlier this year, the Respect@Work – National Inquiry into Sexual Harassment in Australian Workplaces, conducted by the Australian Human Rights Commission made key recommendations addressing psychological health and sexual harassment in Australian workplaces. Specifically the inquiry recommended:

  • the model WHS Regulations should be amended to address psychological health by identifying and appropriately controlling work-related psychosocial risks (consistent with the 2018 Boland Review recommendations); and
  • WHS Ministers develop guidelines or Codes of Practice on sexual harassment, allowing it to be dealt with in a ‘consistent, robust or systemic way’.

Since the publication of the Inquiry’s final report, SafeWork NSW and … Continue Reading

Record fine imposed on Ardent Leisure Limited over Dreamworld fatalities

Photo of Nicki MilionisPhoto of Allana SmithBy Nicki Milionis and Allana Smith on Posted in Australia

Background

On 25 October 2016, Kate Goodchild, Luke Dorsett, Cindy Low & Roozbeh Araghi suffered fatal injuries on Dreamworld’s Thunder River Rapids Ride after the raft they had been travelling in collided with another raft.

Coroner James McDougall undertook a Coronial Inquest (Inquest) which resulted in the Findings of Inquest (Findings) delivered on 24 February 2020.  We discussed these Findings in a podcast which can be accessed here.

The charges

The Coroner found that it was “…reasonably suspected that Ardent Leisure may have committed an offence against workplace law” and he made a … Continue Reading

Legacy Employers: Who are they? Can they still access the temporary JobKeeper enabling directions under the Fair Work Act 2009 (Cth)?

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia, Coronavirus

When extending Part 6-4C of the Fair Work Act (Cth) (FW Act), the government recognised there would be employers who had previously qualified for the JobKeeper scheme, but who would no longer qualify to participate in the scheme following its extension past the end of September 2020.… Continue Reading

Amendments to the JobKeeper scheme

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia

On 3 September 2020, the Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Cth) (Act)[1] passed both houses of the Commonwealth Parliament, extending the JobKeeper scheme, varying employer JobKeeper eligibility requirements and making amendments to the Fair Work Act 2009 (Cth) (FW Act).… Continue Reading

ASIC’s guidance indicates employers should make a provision in financial reports for employee entitlements owed to past and present casual employees who worked regular and systematic hours

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia

The Australian Securities and Investment Commission (ASIC) has issued a guidance note (Guidance) in relation to financial reporting and audit requirements under Chapter 2M of the Corporations Act 2001 (Corporations Act).[1]… Continue Reading

How to address employment issues involving a whistleblower

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia

Under the whistleblowing regime in the Corporations Act 2001 (Cth) (CA), it is unlawful for someone to cause or threaten to cause detriment to, or victimise, a person because they believe or suspect that the person has made, may have made, or could make a whistleblowing disclosure (Whistleblower).  Very substantial civil and criminal sanctions apply for both the individual engaging in detrimental conduct and the corporation that employs the Whistleblower and the antagonist.… Continue Reading

Caution for employers: redundancy entitlement when employer changes employment conditions and employee continues working for their employer

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia

The Federal Court of Australia (FCA) recently considered this issue in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867,[1] holding that an employee who was required to transfer her full-time employment to part-time was entitled to redundancy pay, because the employer no longer required the full-time job to be performed by anyone.

Facts

On 1 May 2014, Broadlex Services Pty Ltd (Employer) hired Ms Brizitka Vrtkovski (Employee) as a full-time cleaner.

On 15 August 2017 the Employer informed the Employee that “due to consideration of work flow an … Continue Reading

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