Insights & News

November 22, 2023

Significant changes have occurred in work health and safety law over the last year. Amendments have been made and proposed to state and Commonwealth safety legislation meaning that jurisdictions are straying from what was originally a harmonised regulatory regime. As states and territories become less harmonised, compliance is becoming more complex for organisations with cross-jurisdictional operations. Victoria is now the only ‘non-harmonised’ jurisdiction in the country.

There have been some big changes, particularly in relation to psychosocial health and safety, penalties for breaches of health and safety legislation, prohibitions on contracts for indemnification from penalties, and increased regulatory activity.

Industrial manslaughter is now an offence in 5 state and territory jurisdictions. Two additional jurisdictions are considering or likely to introduce the offence shortly.

The team at Kingston Reid has prepared the following snapshot of recent changes and significant events across the country.

Model laws

The Model WHS Act forms the basis of the WHS Acts implemented across Australia except for Victoria.

The Model WHS Act was amended to significantly increase maximum penalties, to clarify the way in which Category 1 offences operate and to specifically set out that psychosocial risks must be eliminated or mitigated through the risk management clauses contained in the Model WHS Regulations.

Commonwealth

In mid-September, a wide range of amendments to the Commonwealth WHS Act, which applies mainly to the Federal Government and public authorities, were introduced, including prohibitions on insurance to cover WHS penalties and the addition of negligence as a fault element to the category 1 offence (which was historically concerned with recklessness).

The Federal Government’s “Closing Loopholes” Bill includes amendments to the Commonwealth WHS Act. The proposed amendments include the offence of industrial manslaughter, significant penalty increases for breaches and provisions relating to asbestos safety.

Queensland

The report on the review of Queensland’s WHS Act was published along with the Government’s response to the recommendations in the report in May 2023. Several changes to the Queensland WHS Act have been proposed. Significant changes include increased integration of health and safety representatives’ involvement in the performance of inspector and WHS permit holder functions, and increased recognition and participation of unions in safety matters.

A health and safety manager at the Queensland Museum was charged and pleaded guilty to a category 2 offence (an offence relating to a failure to comply with a duty resulting in exposure of a person to the risk of death or serious injury), following her failure to complete a risk assessment and implement controls relating to zoonotic diseases present at the Museum’s taxidermy department.

New South Wales

In October this year, the NSW Government formally committed to enacting a provision for the offence of industrial manslaughter.

This announcement followed NSW Work Health and Safety Minister Sophie Cotsis’ announcement of a 12-month “anytime, anywhere” inspector blitz campaign to combat the number of workplace fall incidents.

A bill was introduced which will triple the maximum penalty for category 1 breaches and increase all other WHS fines by 40%. The Bill also gives police powers under the WHS Act.

A PCBU charged with a category 1 offence was fined a record $2.025 million and a leading employee was also fined $101,250 in relation to the death of a worker in a woodchipper accident.

ACT

The ACT WHS Act was amended to include sexual assault incidents as notifiable incidents. Penalties will apply if PCBUs fails to notify WorkSafe ACT about an incident.

Codes of Practice dealing with psychosocial hazards and asbestos training were also made.

Victoria

WorkSafe Victoria has successfully prosecuted several breaches of the Occupational Health and Safety Act 2004 in respect of psychological risks. This was without any legislative change relating to the management of psychosocial risks.

Court Services Victoria was charged for failing to eliminate or mitigate health and safety risks for workers who were the subject of a toxic workplace culture, bullying and excessive workloads.

Tasmania

Following an inquest into the suicide death of four Tasmanian policemen, a coroner recommended that workers who are exposed to certain distressing incidents should automatically be referred to support providers for psychological assessment. The coroner also recommended mandatory six-monthly wellbeing screening for all serving officers.

South Australia

South Australia adopted the industrial manslaughter offence. Regulations regarding psychosocial risks were also introduced.

Western Australia

The WA Government launched its “Speak Up, Report It” campaign to address bullying, harassment and inequality in the key sectors of the Western Australian economy.

The Government also introduced a bill to adopt an ‘applied law approach’ to its mirror Rail Safety National Law legislation. If passed, the laws will automatically update in line with changes made to the Rail Safety National Law by the South Australian Parliament – the ‘author’ of the laws which other states and territories have agreed to adopt.

Northern Territory

The Northern Territory Supreme Court upheld the record breaking WHS fines of $960,000 imposed on a PCBU and $180,000 imposed on its director in relation to the death of a worker inside the strike zone of mobile plant.

The NT Government also made a new Code of Practice relating to tower cranes.

The fact is, many of us spend a rather large portion of our waking hours each week at work, meaning that our colleagues are often who we spend the most time with. Research shows that not only is work important in building social relationships, but those social relationships make us better at our work – it’s something to be encouraged. So, it’s unsurprising then that those social relationships have a tendency to carry on outside of the workplace (and working hours) – whether that’s at the pub on a Friday evening, ‘kicking on’ after a work function, or to keep the conversation going through social media chat groups.

Of course, the question for employers becomes what can be done when employees behave badly outside of what is traditionally considered to be the workplace. It’s a timely question that is worth revisiting following two recent decisions, as we move towards the festive season.

Whilst out of hours conduct may be a reason to terminate an employee’s employment (or take other disciplinary action), the employer will need to show that the conduct occurred “in connection with work” – a phrase which will be considered in a manner that is beneficial to the particular employee in question and involve a consideration of all of the circumstances including:

• the nature of the out of hours conduct (what happened and where did it occur)
• the circumstances in which the out of hours conduct occurred
• the purpose and nature of the employment (including the nature of the business, and role and duties of the employee concerned)
• the express and implied terms of the contract of employment
• the effect of the conduct on the employer’s business (or its effect on other employees of the employer)

Recent case law

Each of the following decisions, one of the High Court, and one of the Full Bench of the Fair Work Commission (FWC), both handed down in the last 3 months, consider the question of connection with work in some detail.

The proceedings in the High Court were to determine whether the employer was vicariously liable for the negligent act of one employee against a colleague. Central to the proceedings was the question as to whether the employee was acting in connection with his employment.

Both employees worked at a restaurant at the resort and their roles required them to live on site, where they shared a room in accommodation provided by the employer.

After work one evening, the employees went for a drink, returning to their room at about 1:00am. The employee left shortly afterwards for some more drinks, while the colleague went to bed. During the night, the colleague was woken up by the employee urinating on him in his bed. The colleague inhaled and choked on the urine, and suffered a cataplectic attack, caused by the emotional stress of the situation.

The High Court confirmed that an employer will be liable for the acts of employees committed in the course or scope of the employment, but needed to consider whether the employee was acting as a “stranger to his employer” and whether he was on a “frolic of his own”.

In deciding that the employee was not acting in connection with his employment, the High Court considered the points set out above, and importantly, that the behaviour engaged in by the employe was so far removed from the duties and his employer’s expectations of him that the employer could not be held liable.

In the second matter, the Full Bench of the FWC was required to consider an appeal of an unfair dismissal decision in which the employee had been reinstated to his employment notwithstanding that he had been an active participant in a Facebook group of current and former employees where offensive and pornographic material was shared.

While agreeing that an employee’s employment may be terminated for ‘out of hours’ conduct, the FWC considered that neither the composition of the Facebook group, (being employees or ex-employees), nor the offensive nature of the posts (although contrary to the employer’s policies and procedures), were enough to establish the requisite connection with the workplace. At the same time, the FWC was clear to admonish the employee’s behaviour, making clear that the type of material shared in the Facebook group “has no place at or in any workplace, regardless of the nature of the work or the constitution of the workforce”.

The FWC held that the employee’s conduct occurred outside of working hours and in a group set up for consenting friends and there was no evidence that his conduct had an impact at the workplace.

So, what does this mean for employers?

At first glance, the FWC decision to reinstate the employee, despite the “abject stupidity” of his behaviour, appears somewhat at odds with the employer’s positive duty to take reasonable and proportionate measures to eliminate sex discrimination and sexual harassment in the workplace.

Employers may have little control over employees’ conduct outside of the workplace or after working hours, including at end of year ‘after parties’, but they do have a responsibility for how that conduct impacts their work or the work of others.

If ‘out of hours’ conduct is spilling over into work time or otherwise causing disruptions to work that make it difficult for employees to do their jobs or work cooperatively, then employers will need to implement strategies to effectively manage those impacts and those relationships in light of these decisions and the employer’s legal obligations to ensure a safe workplace.

Current status

Since the “Closing Loopholes” Bill was tabled in Parliament on 4 September 2023 (purporting to close what the Government has described as “regulatory loopholes”), it has continued to capture broad public interest. Many of the changes proposed by the omnibus Bill are generating heated debate, such as:

• the Government’s foreshadowed “same job, same pay” amendments (allowing the Fair Work Commission to make orders requiring that “host” companies ensure that labour hire workers are afforded the same pay and conditions as employees engaged directly under an enterprise agreement that applies to the host), the criminalisation of “wage theft” and changes aimed at regulating “employee-like” workers (namely gig economy platform workers and road transport industry workers); and
• more surprising changes including new workplace rights for union delegates and changes to how employee status is determined (which would reverse the effect of the landmark 2022 High Court rulings in CFMMEU v Personnel Contracting[1] and Jamsek[2]).

(Kingston Reid has previously published a guide on the Government’s Bill, which can be accessed here.)

Facing resistance from the Senate crossbench, the Bill was swiftly sent off for inquiry by the Senate Education and Employment Legislation Committee which has, over the course of October, convened 6 public hearings and received over 170 separate submissions on various aspects of the Bill.

New single-issue bills

Amidst this process, some of the proposed changes have quietly found support with Senate cross-benchers David Pocock and Jacqui Lambie who, just two weeks ago, introduced four ‘single issue’ bills in the Senate in an attempt to expedite certain less-contentious aspects of the Closing Loopholes reform package.

These single-issue bills seek to:

1. broaden the functions of ASEA (the Asbestos Safety and Eradication Agency) to address and coordinate national action in relation to the increase in silicosis and other silica-related diseases in Australia;
2. improve protection against discrimination for employees who have been, or continue to be, subjected to family and domestic violence;
3. address an ‘anomaly’ in how the small business redundancy pay exemption operates where a business downsizes and becomes a small business employer due to insolvency or bankruptcy (which has a consequential impact on the redundancy entitlements of remaining staff); and
4. introduce a rebuttable presumption that post-traumatic stress disorder suffered by emergency (‘first responder’) employees covered by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (such as employees of the Australian Federal Police, firefighters, ambulance officers and paramedics) was contributed to, to a significant degree, by an employee’s employment.

All of these single-issue bills were unanimously passed in the Senate on 9 November 2023, however, their course is being blocked by the Government in the House of Representatives. It appears unlikely that we will see substantial movement until early 2024.

Casual employees & other proposed alterations

In respect of the casual employee provisions of the Closing Loopholes Bill, some excitement has recently been generated by the prospect of a legislative “note” being included in the Bill to indicate that employees can be casual even when they work according to a regular and predictable pattern.

However, this is likely to be seen as cold comfort by employers, as the note is unlikely to offer comprehensive and unequivocal protection to employers and it remains to be seen what form the final legislation will take. This is bound to be a pressure point in further Parliamentary (and public) debate over the proposed new laws over the next few months leading into 2024.

At the same time, it looks increasingly likely that we will see further amendments to certain parts of the Closing Loopholes Bill potentially before the Senate Committee reports back. For instance, in relation to the Bill’s gig economy-related provisions, Minister Tony Burke has agreed for the new laws to clarify that gig workers are engaged as contractors (and not employees). Separately, Minister Burke has agreed to the exclusion of “service contractors” (who supply equipment and/or their own management services, as distinct from the sole provision of labour) from the operation of the Bill’s “same job, same pay” provisions. A revised Bill reflecting this (amongst other) changes is expected to be tabled in the House of Representatives next week (commencing 27 November 2023).

The Senate Education and Employment Legislation Committee’s inquiry report is due on or after 1 February 2024.

[1] [2022] HCA 1.
[2] [2022] HCA 2.

October 12, 2023

The Secure Jobs Better Pay amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new set of provisions to deal with “intractable” bargaining (replacing the previous serious breach declaration provisions), which took effect in June 2023. Under that scheme, once the minimum bargaining period has ended (typically 9 months after the day bargaining starts, unless a later alternative date under s235(5) applies) and upon application by a bargaining representative, the Fair Work Commission (FWC) could make an intractable bargaining declaration if it is satisfied that the criteria outlined in s235(1) have been met.

Given the nature of the United Firefighters Union of Australia (UFU)’s application, the circumstances leading up to the FWC’s declaration were complex and protracted, dating back to when Fire Rescue Victoria (FRV) first absorbed functions of the Metropolitan Fire and Emergency Board and the Country Fire Authority in mid-2020.

From that time, an ‘interim’ agreement for operational staff was introduced whilst bargaining took place between FRV and the UFU for a new agreement. Whilst informal discussions commenced shortly after the transfer in July 2020, a notice of representational rights was not issued until April 2022, once the FRV had obtained government approval to commence formal bargaining.

In the intervening period however, ongoing discussions had been occurring between FRV and UFU including in relation to an ‘efficiencies’ allowance said to arise under Pillar 3 of the Victorian Government’s then-in-force 2019 Wages Policy (Efficiencies Allowance), which in effect would enable those covered under the agreement to share in cost savings obtained through agreed efficiencies arising from the absorption of both the Metropolitan Fire and Emergency Board and the Country Fire Authority.

Bargaining disputes between 2021 to 2023

During this period, several disputes were filed in the FWC and a number of conferences were conducted. Relevantly, a dispute was lodged by the UFU in respect of the efficiencies issue, which led to a series of conferences being conducted in late 2021 to enable the parties to engage in costing the proposed Pillar 3 efficiencies.

The UFU subsequently outlined its claim for the Efficiencies Allowance in a s739 application. However, before that application was heard, it filed a further (s240) dispute in relation to nine items (one of which was ‘wages and allowances’), leading to a further series of FWC conferences. After the Minister for Emergency Services intervened, the issue of the Efficiencies Allowance was ultimately left to be resolved by the parties through further bargaining.

The 2023 Wages Offer – an ‘unbridgeable’ distance

In March 2023, the FRV put forward its wages offer to the UFU, which included modest wage increases and a once-off payment, but not the Efficiencies Allowance as the Victorian Government did not authorise the FRV to do so, consistent with its new 2023 Wages Policy and Bargaining Framework which was introduced around this time.  On this point, the FRV’s position was that it had consistently maintained that wages and allowances were subject to Government authorisation and applicable Wages Policy.

As tensions escalated, the UFU purported to accept the FRV’s wages offer, but subject to the determination of the various efficiencies by the FWC at ‘no less than $117M”, which once determined (for the purposes of the allowance), should be backdated to the start of the proposed agreement. When FRV responded that it was unable to finalise bargaining, the UFU filed its application for an intractable bargaining declaration, in respect of which the FRV submitted that the distance between the parties on the issue of wages and allowances was ‘currently unbridgeable’, and as such, the application for a declaration was not opposed by FRV.

Statutory criteria for making a declaration

In order for the FWC to make an intractable bargaining declaration under s235 of the FW Act, it must be satisfied that:

1. it has dealt with the dispute about the agreement under s240 and that the applicant (in this case, the UFU) participated in the FWC’s processes in doing so;
2. there is no reasonable prospect of agreement being reached if the declaration is not made; and
3. it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

The FWC’s considerations

The decision sets out some useful observations on how the FWC will determine whether it can be ‘satisfied’ as to each of the abovementioned criteria. Importantly, it notes that for the purposes of applying section 235 of the FW Act, the FWC’s exercise of discretion is broader in relation to prescribed matters of ‘opinion, policy or taste’.

Whilst the first criterion set out above requires only a finding of fact, the second involves an evaluative judgment by the FWC as to whether there is ‘no reasonable prospect’ of agreement if a declaration is not made. Unpacking that double-negative, the FWC need not be convinced that agreement will never arise, but that it is rationally improbable to the point that there is not a reasonable chance of agreement. Crucially, the FWC has indicated that this state of satisfaction is unlikely unless there has been a protracted bargaining period and the parties have exhausted all reasonable efforts (noting in this case, the parties had attended a dozen or so conferences in the period leading up to February 2023 alone).

In relation to the third criterion, it is noteworthy that the FRV (and the Minister, intervening) agreed that bargaining had reached an impasse and supported a declaration being made. This feature of the proceedings (which is unlikely to be the status quo in other applications) is important, given that the views of all the bargaining representatives must form part of the FWC’s evaluative judgment as to reasonableness.

Contrast this with the first intractable bargaining declaration case brought by Virgin Australia Regional Airlines when, during the running of the case, Virgin agreed to further bargain with the relevant unions, thus effectively scuttling its own application. Of course, the likelihood in a contested application will be that there are strongly different views amongst bargaining representatives as to the status and utility of further negotiation.

In the present case however, and in the absence of an opposing view in relation to the UFU’s application, the FWC had regard to:

• the nature of the firefighting services provided by FRV, being critical to public safety;
• that bargaining had been occurring (albeit in various forms) for three years or so; and
• that the parties would be ready for any further arbitration to follow, as the dispute had already been programmed for hearing (for which the parties had commenced preparation),

and, having been satisfied of the necessary criteria (and not identifying any other matters weighing against), made its first intractable bargaining declaration, imposing a post-declaration negotiating period of two weeks, to enable the parties to further narrow the issues requiring arbitration.

Final Comments

Whilst it was not considered to be relevant in this case, the Full Bench did briefly address an important jurisdictional consideration for parties who find themselves inching towards a bargaining stalemate.

Firstly, it must be noted that (existing) s240 provides the FWC with a broad range of powers to assist bargaining representatives with any dispute that arises in bargaining that they are unable to resolve, which includes conducting conferences, mediation, conciliation, making a recommendation, expressing an opinion, or conducting arbitration (by consent). Further, applying to the FWC to deal with a dispute under section 240 (and participating in the resultant process) is a necessary step that must occur prior to applying for an intractable bargaining declaration under (new) s235.

In the UFU decision, the Full Bench has clarified the narrower operation of section 235(2) which requires the FWC to be satisfied that it has dealt with ‘the’ dispute, and not simply ‘a’ dispute under s240, confirming that the relevant bargaining dispute dealt with under s240 “must be the same as the dispute which is said to have caused bargaining to become intractable…”.

In light of the steps to follow the making of an intractable bargaining declaration, this is an important jurisdictional consideration that warrants close scrutiny (in respect of both s235 and s240 applications more broadly), particularly if various disputes have arisen in relation to a range of issues over a protracted bargaining period. For now, it remains to be seen whether bargaining representatives will attempt to cast their s240 nets more broadly when characterising the nature of ‘the’ dispute to be dealt with by the FWC with an eye on the prospect of making an application for an intractable bargaining declaration down the track, if necessary.

A final, practical issue that arises concerns how the FWC will evaluate any jurisdictional objection to a s235 application, as to whether or not it is, in fact, ‘the’ dispute that is said to have caused bargaining to have become intractable. Given the range of ways in which the FWC may deal with a dispute under s240 – some of which are confidential and/or without prejudice – it is unclear how the FWC might do so without requiring the parties to waive or otherwise impugn the confidentiality of those processes (short of having the relevant FWC Member form part of the Full Bench convened in the event such an objection is raised).

Given the active role being played by the FWC at present in relation to other high profile and protracted industrial negotiations, we may ultimately not need to wait very much longer for further guidance from the Full Bench on this front.

September 29, 2023

From 1 October 2023, significant changes to the Public Interest Disclosure (PID) regime in NSW come into effect.

The Public Interest Disclosures Act 2022 (NSW) (PID Act) completely replaces the Public Interest Disclosures Act 1994 (NSW) (1994 Act), creating significant changes aimed at enhancing protections for disclosers, streamlining reporting processes, and strengthening the framework for investigating disclosures of wrongdoing within NSW government agencies.

Here is what’s new:

Public Interest Disclosure Policies: While agencies were required to have a under the 1994 Act, the requirements for these policies under the PID Act are more detailed and prescriptive than previously.

Agency PID policies must now detail (amongst other things) the procedures for receiving, acknowledging, and responding to disclosures. The PID Policy must also identify nominated disclosure officers and their contact details. The content of a PID policy is prescribed by section 43 of the PID Act 2022.

While many agencies will likely amend their existing PID policy, the Ombudsman has helpfully prepared a model PID policy: available here.

Categories of Public Interest Disclosures: The PID Act sorts public interest disclosures into three categories:

Mandatory Public Interest Disclosures: these are disclosures about serious wrongdoing by a public official either in the course of their duties or under a legal obligation.

Witness Public Interest Disclosures: these disclosures involve providing information during an investigation of serious wrongdoing, whether related to a voluntary disclosure or not.

Voluntary Public Interest Disclosures: these disclosures are made voluntarily and must show or tend to show serious wrongdoing. Voluntary disclosures can be made anonymously.

Serious Wrongdoing is defined in the PID Act to include behaviour such as corrupt conduct, government information contraventions, serious maladministration, privacy contraventions, and substantial waste of public money. This definition is broader than that contained in the 1994 Act.

Who Can Make a PID: The categories of individuals who can make PIDs have been expanded. It includes not only employees but also those providing services or exercising functions on behalf of an agency, such as contractors, subcontractors, and volunteers.

Recipients of Disclosures: Under the PID Act, there is no “wrong” recipient for a disclosure. All public interest disclosures are made in the same manner. Recipients include the head of an agency, disclosure officers, managers, members of Parliament, and journalists. However, certain conditions must be met for disclosures to members of Parliament or journalists to be protected.

Protections for Disclosers: It is an offence to take detrimental action against a person who has made a disclosure if the disclosure was a contributing factor to the action. This threshold is lower than that of the PID Act 1994, which required that the action be “substantially in reprisal” for the disclosure.

Our 3 WISE tips

1. Agencies should ensure that their existing PID Policy is amended to meet the new requirements. While many agencies will have drafts in place ahead of 1 October 2023, it is also important to ensure that disclosure officers and others central to the operation of the PID Act are trained on the changes, in addition to staff more generally.
2. When considering the expanded definition of who can lawfully make a protected disclosure, agencies should consider those entities it contracts with to carry out services or functions on behalf of the agency and ensure they are advised of the changes to the PID Policy.
3. Finally, it is best practice to conduct an audit of your agency’s PID functions from time to time. This is the perfect time to do so to ensure your agency is implementing and maintaining procedures with respect to:
   • dealing with disclosures that are or may be voluntary PIDs;
   • providing information to the makers of voluntary PIDs;
   • assess and minimise the risk of detrimental action;
   • dealing with allegations that a detrimental action offence has been committed;
   • maintaining confidentiality and protecting the identity of the makers of voluntary PIDs;
   • taking appropriate corrective action in response to findings of serious wrongdoing or other misconduct;
   • record-keeping and reporting; and
   • establishing internal oversight of your agency’s compliance.