Aug 14, 2024

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14 August 2024
Levelling the Playing Field – Fair Work Commission to umpire services contract terms
August 14, 2024

While there has been much discussion about some of the changes arising out of the Closing Loopholes reforms, an area that has received relatively little attention, but which may have a big impact, is the Fair Work Commission (FWC)’s new unfair contracts jurisdiction, commencing on 26 August 2024.

This new Part of the Fair Work Act 2009 (Cth) (FW Act) establishes a framework for dealing with alleged unfair contract terms within services contracts.  This is new territory for the FWC, which has not previously had a role in regulating the relationship between principals and independent contractors in this way.

What does the new jurisdiction involve?

A person who is a party to a services contract (or their union) will be able to apply to the FWC for an order granting a remedy because of an unfair contract term in a services contract.

Such an application can only be brought on behalf of a person who earns less than the independent contractor high-income threshold [1].  This amount will be prescribed by the Fair Work Regulations, but is anticipated to be set at a similar, if not the same, level as the high-income threshold for employment purposes.

Not all terms of a services contract may be challenged as being unfair.  Rather, only terms which in an employment relationship would relate to “workplace relations matters” are open to be assessed by the Commission for unfairness. Workplace relations matters take a defined meaning, and include matters such as remuneration, hours of work, and termination.

If the FWC is satisfied that a services contract includes one or more unfair contract terms, it can make an order to either:

  • set aside all or part of a services contract; or
  • amend or vary all of part of a services contract.

What about the Independent Contractors Act 2006 (Cth)?

These upcoming changes to the FW Act may, at first glance, appear to impede upon the territory of the Independent Contractors Act 2006 (Cth) (IC Act), which is similarly concerned with protecting and recognising the freedom of contractors that enter into services contracts.

However, the provisions within the IC Act have rarely been used, for reasons including because it is viewed to be relatively inaccessible for contractors seeking recourse for unfair contract terms, because of the inherent costs in bringing an application in the Federal Courts.

The FW Act will provide similar grounds to what is presently in the IC Act for assessing whether services contracts are unfair and also offer similar remedies (relevantly, the ability to vary or set aside a services contract).

The unfair contracts jurisdiction in the FW Act has been introduced with the intention of operating as a cheaper, faster and more accessible means for contractors (earning less than the threshold amount) to obtain relief for unfair contracts terms. To take into account the new framework in the FW Act, from 26 August 2024, the IC Act will also be amended so that only contractors earning above the contractor high-income threshold can pursue remedies under the IC Act.

Importantly, there are a number of fundamental differences between the two Acts, including that:

  • the relevant review body under the IC Act is the Federal Courts (as opposed to the FWC under the FW Act);
  • the IC Act applies to services contracts entered into on or after 1 March 2007 (as opposed to services contracts entered into on or after 26 August 2024, under the FW Act); and
  • only a party to the contract can make an application under the IC Act (as opposed to an industrial organisation’s ability to make an application under the FW Act).

Given this, it is expected that there will be an increase in unfair contract claims from independent contractors.

How the FWC will approach the task of determining unfair contract terms

The establishment of an unfair contracts jurisdiction within scope of the FWC’s powers is an interesting development in industrial relations law, that seeks to expand the protections contained within services contracts, when independent contractors historically have had limited access to certain rights and entitlements that employees did, particularly under the FW Act.

For the first time, the FWC has capacity to look at – and set aside, vary or amend – the terms and conditions governing working relationships outside of employment.

In determining whether a term of a services contract is unfair, the FWC may consider:

  • the relative bargaining power of the parties;
  • whether the contract as a whole displays a significant imbalance between the rights and obligations of the parties;
  • whether the term is reasonably necessary to protect the legitimate interests of a party;
  • whether the term imposes a harsh, unjust, or unreasonable requirement on a party;
  • whether the total remuneration for performing work under the contract is less than that of regulated workers or employees performing similar work; and
  • any other relevant matter the FWC considers appropriate.

While the relative bargaining power of the parties will be assessed as at the time that the services contract was formed, the remaining factors, going to the question of whether the contract terms, are unfair are assessed at the time the FWC hears the application.

The FWC is empowered with a broad discretion to set aside, amend or vary a services contract. While the FWC cannot award compensation for an unfair contract, an order could include a variation to the services contract to increase payments made to a contractor.

Notwithstanding that this is a new jurisdiction for the FWC, it has indicated that it will have regard to previous jurisprudence on unfair contract terms in other jurisdictions.

In particular, there are cases of the Federal Court of Australia where services contracts have been varied to provide for new terms which have the effect of providing additional benefits under the contract.  For example, in a matter involving the termination of the services contract between an independent insurance agent and the principal insurance company that engaged them, the Court decided that the terms dealing with termination were unfair and made an order varying the contract to provide for payment of an amount $5,000 triggered upon termination of the services contract. The variation had the practical effect of providing the contractor with compensation.

Orders made by the FWC varying or setting aside contract terms cannot be enforced by the FWC.  If there is not compliance with the terms of the services contract as varied, the enforcement of that contract would be pursued through the Courts.

What this means for business

Given the informality and accessibility of the FWC process, it’s likely that businesses will face increased litigation from contractors.

This expansion of the law poses additional challenges for businesses as they will need to re-evaluate and potentially consider amendment of their current services contract terms to mitigate any claims of unfairness in the terms.

[1] At the time of publication, the independent contractor high-income threshold is not yet available.

 

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

 

Katie Sweatman
Partner
+61 3 9958 9605
[email protected]		 Mia Steward
Associate
+61 3 9958 9609
[email protected]
14 August 2024
Express rights to representation in a matter before the Fair Work Commission

Section 596 of the Fair Work Act 2009 (Cth) (FW Act) provides that a party to a proceeding before the Fair Work Commission (FWC) may be represented only with the permission of the FWC. It follows that parties seeking to be represented in the FWC are routinely directed to make submissions addressing the criteria set out in s.596(2) of the FW Act.

Historically, this has included disputes brought under s.739 of the FW Act which relate to a dispute resolution procedure (DRP) in an industrial instrument. However, in a recent decision of the FWC in Martin Nash v PHI (International) Australia Pty Ltd [1], a party to a dispute was refused permission to be represented based on the drafting of the DRP, which the Member held only allowed for the initiating party (in this case, the employee) to be represented.

The facts

Three casually employed pilots raised a dispute with their employer under the DRP in their enterprise agreement. The dispute concerned pay-related issues that were not resolved at the workplace level. The employees filed proceedings in the FWC and were represented by their union.

The Respondent employer made a jurisdictional objection to the proceedings, sought permission to be legally represented at the hearing of their objection and made submissions pursuant to s.596(2). The Applicants objected to the Respondent’s application on the basis that the DRP did not allow the Respondent, as the ‘non-initiating party’ to the dispute, to be represented.

The relevant clause in the enterprise agreement stated:

“A person(s) initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a Union representative or Company association in relation to the dispute…”.

Deputy President O’Keefe considered the DRP had used ‘plain and unambiguous language’ to require that only the party initiating the dispute could be represented. In the absence of a specific right for a non-initiating party to be represented, the Deputy President refused the employer’s application.

In his reasoning, the Deputy President noted he would have granted permission if ‘based solely on s.596(2)’.

Interaction of the Dispute Resolution Procedure and the FW Act

In deciding against permitting representation for the employer (as the non-initiating party), the FWC referred to relevant case law concerning the interaction between a DRP and the FW Act. The Deputy President purported to rely on the decision of Commissioner Hampton (as he then was) in Shop, Distributive and Allied Employees Association v Woolworths (South Australia) Pty Ltd & Woolworths Group Ltd [2] as authority for the finding that a DRP can in effect, limit ‘the operation of s.596(2) and thereby the FWC’s discretion regarding representation’. He found that limitations imposed by the parties to an enterprise agreement can in effect override the way the FW Act would otherwise require the FWC to deal with private arbitration matters.

Insights

It is common for DRPs in modern awards and enterprise agreements to provide that a party to the dispute may be represented in any step of the procedure. Indeed, this standard DRP clause in modern awards arguably includes an express right to representation.

Yet even in those circumstances, parties will routinely be directed by the FWC to file submissions addressing the criteria in s.596 of the FW Act, if seeking leave to be represented. Where parties have made submissions in respect of the express right to representation in the DRP they have at times been left unanswered or given little consideration and permission is granted under the provisions of the FW Act.

This recent decision of Deputy President O’Keefe may seem to be somewhat out of step with this routine practice of the FWC. However, the Deputy President’s decision is compelling as it places the agreement between the parties as to the powers and limitations of the FWC in private arbitration as paramount.

Key takeaways

The decision is a timely reminder for parties negotiating an enterprise agreement to pay close attention to the drafting of their agreement and in particular, to the DRP and include a provision allowing for representation. Parties who have negotiated an express right to representation now have a precedent to rely on when seeking to be represented pursuant to the terms of the DRP, as agreed between the parties to the dispute.

[1] [2024] FWC 1795

[2] [2021] FWC 617

 

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

 

Alice DeBoos
Managing Partner
+61 2 9169 8444
[email protected]		 Sophie Baartz
Senior Associate
+61 7 3071 3118
[email protected]
22 July 2024
‘Same Job, Same Pay’ labour hire provisions still waiting for first test
July 22, 2024

The Same Job, Same Pay provisions[1] of the Fair Work Act 2009 (Cth) (FW Act) commenced on 15 December 2023, as part of the Federal Government’s ‘Closing Loopholes’ amendments (see our earlier article discussing the changes here).

At their core, these provisions enable the Fair Work Commission (Commission) to make a regulated labour hire arrangement order (RLHAO) that labour hire workers receive the same ‘rate of pay’ as host employees covered by an enterprise agreement (or other prescribed instrument) at the workplace, when undertaking work covered by that agreement.

For those familiar with industrial relations and the introduction of these provisions, it is well known the laws were intended to be used against major employers who operated internal labour hire entities. In May 2023, the ACTU named BHP, Qantas, Qube and CIMIC as four examples in a research note supporting the legislation[2].

It is therefore unsurprising that BHP and Qantas are at the centre of cases expected to test the scope and application of these provisions. In the meantime, the first RLHAO decision has been handed down by the Commission.

Same Job, Same Pay

At their simplest, the Same Job, Same pay provisions set out ‘qualifying criteria’ for when an RLHAO must be made, and “disqualifying criteria” which will prevent an order being made, even when the qualifying criteria are satisfied.

Qualifying Criteria Disqualifying Criteria
  • The application must be made by a person with standing.

This can be an employee of the host site, a labour hire worker, the host employer, or a registered organisation with coverage of the employees or labour hire worker.

  • There must be a ‘covered employment instrument’ that applies to the host employer that would apply to the work being done by the labour hire worker.

This will be a question of fact.

  • The host must not be a small business.

While this may appear straightforward, the issue can become complex in some corporate structures.

  • The performance of work is for the provision of services, not the supply of labour.

This is like the multi-factor tests previously used to assess whether a person was a contractor or employee. It requires consideration of, in effect, the degree of control that the host employer has over the work performed by the labour hire worker and assessment of the nature of the work being performed.

  • Making the order would not be fair and reasonable in all the circumstances.

This considers pay arrangements, any history of industrial arrangements, and any corporate relationships.  

We expect the ‘disqualifying’ criteria will be the most contested in RLHAO disputes.

The MEU Decision

To date there has only been one decision relating to the new laws, Application by the Mining and Energy Union [2024] FWCFB 299 (MEU Decision), which was unopposed. Other applications commenced (including against Thiess, a subsidiary of CIMIC), have been resolved without contest or are yet to be heard.

Notwithstanding that the matter was uncontested, the MEU Decision is useful as the Commission has succinctly set out its observations as to how the RLHAO provisions will be applied.

The Commission confirmed the process was to firstly assess the ‘qualifying criteria’ and, if these were met, to then consider whether any ‘disqualifying criteria’ applied, as follows:

  1. Does the applicant in the matter have standing to bring the application?
  2. Can the Commission be satisfied, based on evidence or logical grounds, that the qualifying criteria are met? This requires a state of satisfaction that:
    1. the labour being supplied is principally for the benefit of the host entity, whether directly or indirectly;
    2. there is a ‘covered employment instrument’ which applies to the host;
    3. the ‘covered employment instrument’ would apply to the labour hire workers in relation to the work being performed. This requires:
    1. assessment of the nature of the work being performed, including required qualifications, tasks undertaken, and skills exercised; and then
    2. determining by reference to coverage and classification whether that work is covered by the employment instrument.
  3. Is the employer a small business within the definition provided in the FW Act?
  4. Is the Commission satisfied the performance of work is not the provision of service rather than the supply of labour? This requires determining if the performance of work requires something ‘more than’ the provision of labour.
  5. Only if there are submissions regarding whether the order is ‘fair and reasonable’ will this disqualifying factor be considered.
  6. Does the order sought meet the mandatory requirements of the Act?

The Commission applied this approach to the MEU Application and unsurprisingly made the RLHAO as:

  • the applicant Mining and Energy Union had standing;
  • WorkPac provided labour hire workers to Batchfire for Batchfire’s benefit;
  • Batchfire had a relevant enterprise agreement; and
  • the Batchfire agreement would apply to work performed by the WorkPac workers.

The Commission then considered whether WorkPac was providing services or labour, ultimately being satisfied that the arrangement was for the supply of labour. In considering this, the Commission found:

  • WorkPac did not have any involvement in matters other than supplying workers;
  • WorkPac did not control, direct or supervise its workers on the Mine. It was Batchfire who managed rosters, assigned tasks and supervised work;
  • WorkPac workers used Batchfire systems, plants and structures to perform work; and
  • the work was not specialist or expert.

As no submissions were made regarding whether the order was fair and reasonable, this was not considered.

Once satisfied of the above, the Commission observed it was required to make the RLHAO sought by the MEU due to the operation of section 306E of the FW Act.

Given the facts of the matter and that there was no contest, the scope of the ‘Same Job, Same Pay’ provisions remain untested.

BHP Coal and the MEU & AMWU set for test case

This looks set to change as BHP Coal Pty Ltd (BHP Coal) and the MEU & the Australian Manufacturing Workers’ Union (AMWU) look set to argue a major case for a RLHAO before the Full Bench of the Commission.

The case is expected to be highly complex and heavily contested. It involves thirteen separate applications: six separate labour hire providers, including BHP’s own labour hire entities, and three BHP Bowen Basin mines. It has been reported that approximately 1,700 workers would be covered by the applications.

BHP Coal is opposing the application on two key grounds:

  1. the performance of the work by the supplied workers is for the provision of a service, rather than the supply of labour; and
  2. it is not fair and reasonable in all the circumstances to make the RLHAO, taking into account pay arrangements, industrial instruments and the nature of the relationship between BHP Coal and the employers of the supplied workers.

This means the ‘disqualifying factors’ will likely be examined in detail in this matter and the decision will provide guidance on the scope and application of the new provisions including what is meant by ‘fair and reasonable’ within this context.

While the hearing date has not yet been set, evidence for both sides is currently expected to be filed in the second half of 2024. The case can be monitored on the Commission’s website.

Flight Attendants’ Association of Australia and Qantas

At the same time, the Flight Attendants’ Association of Australia (FAAA) has brought RLHAO applications against two entities which provide workers to Qantas, including a Qantas labour hire entity. It currently appears these applications will be opposed by Qantas. The grounds for the opposition have not yet been detailed. It may be that this case is heard before the BHP Coal matter given it is smaller in size.

What does this all mean?

It is clear that the Same Job, Same Pay provisions are most likely to be contested on the ‘disqualifying factors’, particularly the questions of the supply of services versus supply of labour, and the yet to be explored concept of ‘fair and reasonable’.

Enterprise agreement coverage of the work being performed also stands to be a point of interest, given it is necessary to determine if the work being performed by a labour hire worker is covered by an enterprise agreement.

Employers who utilise or rely on labour hire as part of their workforce planning who want to understand their potential risks of a RLHAO application, should proactively assess:

  • the nature of the services being engaged through labour hire and whether these include services that go beyond the supply of labour;
  • how labour hire personnel are engaged, managed and instructed when performing the work; and
  • coverage of existing ‘employment instruments’, particularly enterprise agreements over the work being performed being performed by labour hire services.

This may identify issues within existing labour hire engagement and procurement practices where strategic changes could be made to mitigate the risks of an RLHAO being sought, or made.

Employers should also ensure that their commercial contracts for labour hire have been reviewed and updated to account for these new provisions and risks.

Watch this space for more updates.

To keep up with the latest developments across employment, workplace relations and safety and regulatory law, sign up to our e-newsletter, Kingston Reidable, by subscribing here.

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

[1] The Same Job Same Pay provisions are contained in (new) Part 2-7A (Regulated labour hire arrangement orders) of the Fair Work Act 2009 (Cth).

[2] Same job, less pay: the exploitation of outsourcing loopholes ACTU Research Note – May 2023

 

Beth Robinson
Partner
+61 8 6381 7064
[email protected]		 Shannon Walker
Special Counsel
+61 8 6381 7054
[email protected]		 Kevin Jarrett
Associate
+61 8 6381 7067
[email protected]
24 June 2024
News: Kingston Reid Partner Promotions July 2024
June 24, 2024

From July 1 Kingston Reid, not yet 5 years old, will further consolidate its position as Australia’s largest specialist workplace law firm with the elevation of three Special Counsel to Partnership, bringing the firm’s National Partnership to 16. Managing Partner Alice DeBoos said it “is an exciting time, as we continue to expand and build for the future”.

Indicative of the firm’s national footprint, Brad Popple, Emily Baxter and James Parkinson hail from different offices (Melbourne, Sydney and Perth respectively), and are each “fabulous embodiments of the Kingston Reid way…… completely dedicated to the firm, our team and our clients” said DeBoos, adding that “these three will greatly enrich our partnership and our firm into the future”.

Brad, Emily, and James support their clients across workplace relations and employment matters, in both advice and litigation. But where similarities in their expertise may exist, each brings their own character to the practice of law and the expression of Kingston Reid’s values.

“It’s a really interesting time in employment and industrial relations law, and I’m proud to be able to help our clients stay at the cutting edge of navigating the challenges” shared Brad Popple. “Kingston Reid is unique in having a large national team of lawyers who are so intensely curious and passionate about what we do, and I’m looking forward to contributing as a Partner” Popple says.

“I am delighted to be joining the ranks of such frank, fearless, and fantastic Partners at Kingston Reid who are experts in their field and whose focus is on delighting and achieving the best outcomes for clients” Emily Baxter explains. “I enjoy my work as a lawyer and am passionate about solving problems and resolving legal issues. The dynamic and fast-paced nature of employment and industrial law in Australia makes for an exciting and challenging opportunity and I am looking forward to navigating the complexities and delivering innovative solutions for clients as a Partner at Kingston Reid”.

“With a significant amount of recent change and more on the horizon, workplace relations is at an intriguing crossroads” says James Parkinson. “I am honoured to join Kingston Reid as a Partner and continue walking in our clients’ shoes, alongside some of the most talented and professional legal practitioners in this space” Parkinson shared.

In addition to the newly minted Partners, three more lawyers have been promoted to Senior Associate, further demonstrating the firm’s commitment to developing legal talent and rewarding individual effort. Marcus Topp, Kat Weston and David Perrozzi (Melbourne, Sydney and Perth respectively) “demonstrate our core values through their approach to work, client service and their loyalty to firm and their colleagues” said DeBoos. “Kingston Reid’s collective success has enabled growth to the extent that we can promote six individuals this year, and I’m exceptionally proud of that fact”.

14 June 2024
NSW’s New Industrial Manslaughter Bill: What PCBUs Need to Know
June 14, 2024

On 4 June 2024, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (WHS Bill) was introduced into the NSW Legislative Assembly to amend the Work Health and Safety Act 2011 (NSW) by creating an offence of industrial manslaughter. If passed, the WHS Bill will set some of the highest WHS penalties in Australia, with individuals found guilty of industrial manslaughter facing up to 25 years in prison, while corporations could be fined up to $20 million.

The proposed offence

NSW is one of the last mainland states to introduce a dedicated industrial manslaughter offence, aligning it with other states that have already enacted similar laws. Under the WHS Bill, the proposed offence will be committed where a person:

  • has a health and safety duty; and
  • is a person or an Officer of a person, conducting a business or undertaking (PCBU); and
  • engages in certain conduct, by an act or omission, that caused the death of a worker or another individual, to whom the person’s health and safety duty is owed; and
  • engages in conduct with gross negligence.

As made clear in the second reading of the WHS Bill, the proposed offence will cover those individuals whose behaviour or decisions have the power to influence the activities and culture of a workplace (i.e. officers of a PCBU).

Interestingly, the WHS Bill attempts to provide guidance on when a body corporate may be considered grossly negligent. According to the WHS Bill, a PCBU may be grossly negligent if there is inadequate corporate management, control or supervision of the conduct (act or omission) of one or more authorised persons (defined in the existing WHS Act as an officer, employee or agent acting within their actual or apparent authority), or a failure to provide adequate systems for conveying relevant information to relevant persons within the body corporate.

This formulation is unhelpful and creates more questions than answers. For example, conduct may be readily established where multiple rogue individuals do not adhere to systems implemented or promoted by the business, exposing the PCBU and other officers. The Bill does not define what constitutes inadequate corporate management, control and supervision. Additionally, there is no clear standard for what makes a system for conveying information inadequate or who the ‘relevant persons’ are within the body corporate.

Other notable sections of the WHS Bill

No time limitation period for prosecutions: There is no limitation period for prosecuting industrial manslaughter offences. This means that legal proceedings can be initiated at any time following the offence.

Alternative verdicts: If a prosecution for industrial manslaughter is initiated and the court finds the individual or PCBU not guilty of industrial manslaughter, the court may still convict for a Category 1 offence, even if the time limitation period for a Category 1 offence has lapsed. This alternative charge is consistent with industrial manslaughter provisions across Australia. However, unlike other industrial manslaughter laws, NSW’s proposed provisions lack the requirement to afford the defendant procedural fairness concerning the alternative Category 1 offence.

Exemption for volunteers: The industrial manslaughter offence is not intended to apply to volunteers.

Enforceable undertakings: Enforceable undertakings cannot be accepted by the regulator for contravention of an alleged industrial manslaughter offence. This is consistent with the current approach taken to Category 1 offences.

Establishment of special unit: In addition to the WHS Bill, the NSW Government proposes to establish a special unit within the Office of the Director of Public Prosecutions that will be responsible for prosecuting industrial manslaughter cases.

Increased penalties

Under the new bill, individuals found guilty of industrial manslaughter could face up to 25 years in prison, while corporations could be fined up to $20 million. These penalties are significantly higher than the current maximums under the WHS Act, which are $399,479.85 and/or five years’ imprisonment for individuals, and $3,992,492.70 for PCBUs. The highest court-imposed WHS fine to date stands at $2,025,000. The new industrial manslaughter laws represent a dramatic increase in the maximum penalties.[1]

Below is a comparison of industrial manslaughter penalties across the Australian jurisdictions:[2]

Jurisdiction Industrial manslaughter law Maximum penalties
Commonwealth In force from 1 July 2024 Individual: 25 years’ imprisonment

Body corporate: $18,000,000
ACT Law in force Individual: 20 years’ imprisonment

Body corporate: $16,500,000
SA In force from 1 July 2024 Individual: 20 years imprisonment

Body corporate: $18,000,000
QLD Law in force Individual: 20 years’ imprisonment

Body corporate: $15,480,000
WA Law in force Individual: 20 years imprisonment and a fine of $5,000,000

Body corporate: $10,000,000
VIC Law in force Individual: 25 years’ imprisonment

Body corporate: $19,231,000
TAS No law in force N/A
NT Law in force Individual: imprisonment for life

Body corporate: $11,440,000

Implications for Employers

While the new industrial manslaughter laws do not change the obligations of individuals and PCBUs duties under the WHS Act, the significant penalties that will apply following conduct that causes the death of a worker heightens the importance of taking a proactive approach to meeting those duties.

The duties under the current WHS Act already require individuals and PCBUs to ensure the health and safety of workers and others affected by their operations, as far as is reasonably practicable. These duties remain unchanged with the introduction of the industrial manslaughter laws. These laws only introduce more severe penalties for breaches that result in fatalities, but also create uncertainty in relation to what exact conduct will constitute gross negligence by way of inadequate corporate management, control or supervision of the conduct or authorised person(s) or the failure to provide adequate systems for conveying relevant information to relevant persons. The WHS Bill is yet to be debated in Parliament, and changes may occur during this process. Kingston Reid will provide updates as the changes develop.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

[1] As at June 2024. Penalties will increase in July 2024.

[2] As at June 2024.

 

John Makris
Partner
+61 2 9169 8407
[email protected]		 George Stent
Associate
+61 2 9169 8421
[email protected]