Insights & News

June 15, 2020

Recent legislative and case law developments have put the spotlight back on the now real consequences of failing to address known and foreseeable risks in the workplace. Whilst lots of attention has been placed on mitigating COVID-19 risks, workplaces need to make sure they don’t neglect other risks which can lead to significant consequences for their organisations and decision makers.

In this Insight, we look at one recent case and legislative amendments which will mean that businesses will need to be proactive and methodical in identifying and addressing risks to avoid prosecution and the wider implications that come with that.

First Industrial Manslaughter Conviction – Brisbane Auto Recycling decision

On 11 June 2020, sentences were recorded against Brisbane Auto Recycling Pty Ltd (Brisbane Auto), and two of its directors, for an incident at the workplace resulting in the death of an employee. Brisbane Auto was an auto wrecking business in Rocklea, Queensland. The employee was struck by a reversing forklift whose operator was not licensed. The directors supervised the work activities at the workplace.

Following the incident, one director told a treating paramedic that the employee had fallen from a truck. Eight days later, on 25 May 2019, the employee died from the injuries he had sustained. The incident was captured on CCTV.

Brisbane Auto was charged with the offence of industrial manslaughter under section 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act). The two directors were not charged with industrial manslaughter but rather category 1 breaches of the officers’ duty of due diligence.

All three defendants pleaded guilty at an early stage.

The maximum penalty in Queensland for an offence of industrial manslaughter committed by a body corporate is a $10 million fine. The maximum penalty for a category 1 offence by an officer is a $600,000 fine or 5 years imprisonment.

The Court imposed the following sentences:

1. Brisbane Auto – Conviction recorded and a $3 million fine
2. The directors – Convictions recorded and both sentenced to 10 months imprisonment, wholly suspended for an operational period of 20 months.

The Court noted that there were no safety systems in place at Brisbane Auto and the defendants knew of the potential consequences of the risk, which ultimately was catastrophic. There were steps available that could have been easily taken to lessen, minimise or remove the risk. These included a proper risk assessment of the task, measures to control the interaction between mobile plant and the workers, and proper supervision of the work. These steps were available but not taken.

The directors received suspended sentences in large part because of the risk of their deportation and the role they had as financial supporters of their respective families.

Workplace Manslaughter laws to commence in Victoria on 1 July 2020

Victorian businesses and officers will need to take notice of the Queensland decision as workplace manslaughter laws will commence in Victoria from 1 July 2020.

Under those provisions, the following persons can be found guilty of a workplace manslaughter offence:

1. Any person (other than an employee or volunteer) who owes a duty under Part 3 of the OHS Act. This means that any employer (whether incorporated or unincorporated) can be charged with workplace manslaughter.
2. An officer of a body corporate, unincorporated body, unincorporated association or partnership.

The offence is one of negligence (not recklessness) and requires the relevant persons to have a duty, and breach that duty which results in the death of a person.

When first enacted, the provisions provided for maximum penalties of a $16.5 million fine for a body corporate and up to 20 years imprisonment for an individual. However, in late May, the legislation was amended to increase the maximum penalty for individuals from 20 years to 25 years imprisonment.

Amendments to NSW WHS Act

Unlike Queensland and Victoria, NSW is not introducing industrial manslaughter provisions into its WHS legislation. Rather, the NSW Work Health and Safety Amendment (Review) Bill 2020 has been passed by parliament which clarifies that an offence of industrial manslaughter can be commenced under the Crimes Act.

The amendments also introduce the following changes:

• Increasing WHS fines. For example, the maximum fine for a category 1 WHS breach will jump from $3 million to $3,463,000. Maximum fines for category 2 and category 3 contraventions will go from $1.5 million to $1,731,500, and from $500,000 to $577,000, respectively,
• Making it easier to secure category 1 convictions (by expanding that category to include ‘gross negligence’ in addition to recklessness),
• Creating a new WHS offence relating to entering into, providing or benefiting from insurance and/or indemnity arrangements for the payment of WHS penalties, and
• Allowing inspectors to exercise their entry powers under s171 of the WHS Act for a period of 30 days.

The debate continues in WA

The Western Australian Parliament continues to debate the Work Health and Safety Bill 2019 which passed the Legislative Assembly (Lower House) on 20 February 2020.

Importantly, the Bill includes two separate offences for industrial manslaughter:

1. Industrial manslaughter – crime
   This provision contains the highest penalties for a work health safety offence with:
   •  an individual exposed to imprisonment for 20 years and a fine of $5,000,000; and
   •  a body corporate exposed to a fine of $10,000,000
2. Industrial manslaughter – simple offence
   This provision contains penalties for a work health safety offence with:
   •  an individual exposed to imprisonment for 10 years and a fine of $2,500,000; and
   •  a body corporate exposed to a fine of $5,000,000

What does the Queensland case and these legislative changes mean?

The Queensland decision and the amendments in Victoria and NSW (and the introduction of industrial manslaughter offences more generally in a number of jurisdictions), highlights the importance of organisations and their officers carefully scrutinising the adequacy of their existing safety management systems, reviewing those systems on a regular basis and ensuring that deficiencies are rectified as quickly as possible.

These developments also demonstrate that there are various options available to safety regulators to prosecute corporate officers for negligent or reckless conduct, including where it cannot be proved that an officer’s conduct caused a workplace death.

If you would like to discuss how these developments impact upon your business please do not hesitate to contact our team.

John Makris
Partner
+61 2 9169 8407
[email protected]

Michael Stutley
Partner
+61 8 6381 7060
[email protected]

Dominic Fleeton
Special Counsel
+61 3 9958 9616
[email protected]

Erica Elliott
Special Counsel
+61 2 9169 8409
[email protected]

Sevasti Xanthos
Lawyer
+61 3 9958 9609
[email protected]

Kathleen Weston
Lawyer
+61 2 9169 8415
[email protected]

May 27, 2020

Yesterday’s announcement by the Prime Minister brings the opportunity for industrial relations in Australia to change for the better as the nation rebuilds from the economic damage caused by COVID-19.

It appears that the Government is not aiming for the type of “business or unions first” reform that last caused difficulties for the Howard government over 10 years ago but rather a consensus approach not seen since the early days of the Accord more than 35 years ago.

The Prime Minister has announced that Industrial Relations Minister, Christian Porter will chair 5 working groups made up of business and union representatives in the following areas between now and the release of the October Budget (Due on 6 October 2020).

The working groups will cover the following areas, and the Prime Minister’s comments or rationale is noted too, for context:

1. Award simplification – As this is what small and medium sized businesses deal with “every single day”.
2. Enterprise agreement making – “We’ve got to get back to basics”.
3. Casuals and fixed term employees – Apparently “made even more prescient by recent changes through the Fair Work Commission”.
4. Compliance and enforcement – Since “People should be paid properly. And unions need to, obviously, do the right thing. As must employers.”
5. Greenfield agreements for new enterprises – As this is “where the new investment will go and the certainty is needed more so than ever”.

Apart from confirming the involvement of business and unions in the working groups, the Prime Minister has confirmed his government will pause its pursuit of new laws which would have allowed courts to deregister rogue unions and officials.

This looks to be a concession aimed at building on the goodwill that the Government has built with unions in the response to the economic challenges of COVID-19.

This process is being described as similar to the Accord but this is not simply about wages; dealing with business concern with overregulation and red tape is covered in the “Award simplification” and “Enterprise agreement making” working groups but this is balanced against a working group dealing with the protection of employee rights through “Compliance and enforcement”.

Employers, industry groups and employee representatives will be invited to join each group, as well as individuals chosen based on their demonstrated experience and expertise. This will include “especially small businesses, rural and regional operators, multicultural communities, women, families”.

The purpose of the working groups is to attempt to reach consensus on industrial relations reform.

The process will be “time bound” and the PM has indicated that the process will move quickly, noting “It will become apparent very quickly if progress is to be made. The working groups will either reach something approaching a consensus on issues, or they won’t.”

Kingston Reid will contribute to the public debate that accompanies the discussions and policy responses that the working groups may develop.

What should you do?

1. Give careful consideration to how your voice is heard during the debate. Will you contribute? If you contribute, will it be through direct comment or via an industry association or other representative?
2. Think about the areas to be covered by the working groups are relevant to your business?
3. Keep up to date with reform proposals so that you can build the potential for change into your long term planning.

Although it is the very early stages, we see the potential value in this process for you and the Australian Economy.

Duncan Fletcher
Partner
+61 8 6381 7050
[email protected]

May 22, 2020

If you’ve been holding your breath for the double-dipping precedent set by WorkPac v Skene[1] to be overturned, unfortunately your wait isn’t over.

On Wednesday, the Federal Court in WorkPac Pty Ltd v Rossato[2] confirmed that Rossato, who had been employed as a ‘casual’ by WorkPac, was entitled to paid annual, personal/carer’s and compassionate leave, plus payments for public holidays.

The Court rejected the employer’s claim that they could off-set these entitlements via a higher hourly rate, stating that “where the purpose of a payment is not to provide the entitlement in the terms required but to provide a substitute, there will not be a “close correlation” between that purpose and the entitlement”.[3]

Significantly, WorkPac’s bid for restitution of the casual loading paid to the employee was also rejected.

Background

The Rossato decision upholds the precedent set by WorkPac v Skene in 2018, where a casual miner who had regular and predictable shifts was found to be entitled to permanent employee benefits.

Controversially, WorkPac chose to run Rossato using a different employee with a different Full Court, rather than appeal WorkPac v Skene to the High Court.

In Rossato the employee was classed by WorkPac as a ‘casual’ but had been engaged under six consecutive contracts for a period of four years.

WorkPac’s primary case this time round was that, unlike in Skene, because Mr Rossato’s written contract had no firm advance commitment regarding days or hours, he was a casual employee.

“Permanent casuals” can’t exist; employers can’t seek restitution

WorkPac’s primary case was rejected.

Instead, the Court found that WorkPac and Rossato “had agreed on employment of indefinite duration which was stable, regular and predictable such that the postulated firm advance commitment was evident in each of his six contracts”.

Under each contract, Rossato was ‘other than a casual employee’ for the purposes of the Fair Work Act and not a casual FTM (Field Team Member) under the 2012 WorkPac EA. This meant that Mr Rossato became entitled to payments of annual, personal/carer’s and compassionate leave and payment for public holidays.

Significantly, the Court also held that WorkPac was not entitled to recover any amount from Mr Rossato as restitution of the casual loading paid to Mr Rossato in a bid to off-set any liabilities.

Can the decision in Rossato be distinguished from other casual engagements?

We think so.

Mr Roassato’s employment was covered by an Enterprise Agreement as well as six consecutive common law contracts. The Court looked at the interaction of respective contracts with the Enterprise Agreement(s) and held that the Enterprise Agreement(s) did not provide for the payment of a casual loading in lieu of annual leave entitlements and personal leave entitlements. In addition, the underpinning award to the Enterprise Agreement was an award that did not provide for casual employment.

Mr Rossato and the CFMMEU also disputed WorkPac’s claim that it had paid Mr Rossato a causal loading of 25%. White J agreed with this proposition in respect of each of the fourth, fifth and sixth contracts, on the basis that those contracts did not contain an independent express term that a casual loading was to be paid in substitution of leave or public holidays.

However when assessing whether WorkPac could successfully say it had ‘set off’ the entitlement to paid leave by paying a higher rate under the first, second and third contracts, the Court still found there was no entitlement to set off portions of the casual loading paid to Mr Rossato.

But didn’t the Government amend the FW Regulations to enable employers to offset certain amounts?

It did. You will recall that in December 2018, regulation 2.03A was introduced and WorkPac sought to rely on this regulation. Importantly, the regulation applies if:

1. a person is employed by an employer on the basis that the person is a casual employee; and
2. the employer pays the person an amount (the loading amount) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period); and
3. during all or some of the employment period, the person was in fact an employee other than a casual employee for the purposes of the National Employment Standards; and
4. the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. (our emphasis)

However none of Mr Rossato’s claims were for ‘an amount in lieu of’ an NES entitlement.

Rather Mr Rossato sought payments of the entitlements (namely annual leave for the entire period of his employment, personal and paid compassionate leave for leave he took but did not receive payment and public holidays in which he was rostered off over the period of employment). On this basis, the Court rejected WorkPac’s set off claim.

Takeaway for Employers

So where does this leave employers?

The situation remains unchanged from Skene in the sense that the critical issue is the characterisation of the ‘casual’ employment. Ask yourself, are your casual employment arrangements ‘stable, regular or predictable’ and is there an indefinite period of engagement or advance commitment?

The decision in Rossato does however present further concerns for those employers who do or have had ‘permanent casuals’ on their books and this decision will also have a critical impact on several pending class actions. Whilst each case will stand and fall on its own facts, the decision of the Court not to accept WorkPac’s offset argument is significant.

Allowing casuals to effectively “double-dip” through accessing both leave entitlements and hourly casual loadings, without entitling businesses to restitution, could have significant financial and logistical impacts on employers, especially in the context of COVID-19.

What is abundantly clear is that legislative change will be needed if Regulation 2.03A is going to have any practical work to do moving forward.

Whilst there are (many) calls for legislative intervention, the fact remains that employers need to deal with the practical issues arising from the decisions now.

Some initial steps to be taken by businesses responding to these decisions could include:

• reviewing all existing casual employees and considering converting those who work on a regular, ongoing basis with an advance commitment to more work;
• considering the interaction of any common law contract with an underlying industrial instrument, including any applicable enterprise agreement;
• ensuring casual employees are engaged from now in a manner that is irregular, uncertain, intermittent and unpredictable; and
• implementing a framework that allows you to monitor the nature of your casual employees.

Should you be worried about your exposure, or how to implement the above, please feel free to reach out to us here at Kingston Reid to discuss.

Christa Lenard
Partner
+61 2 9169 8404
[email protected]

Kathleen Weston
Lawyer
+61 2 9169 8415
[email protected]

[1] [2018] FCAFC 131.
[2] [2020] FCAFC 84.
[3] Rossato, [231].

May 19, 2020

Intuitively it makes sense that you can’t access paid personal leave if you aren’t at work in the first place. This common sense principle was affirmed on Monday by the Federal Court as it sided with Qantas in a dispute over the payment of entitlements to employees stood down due to COVID-19 restrictions.

The Court made it clear that the purpose of the entitlement to personal/carers’ and compassionate leave is to relieve employees from the work they were otherwise required to perform. That is, you get paid when you are too sick to come to work. Where employees have been stood down due to COVID-19, there is no work. Thus, “if there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost.”[1]

Background

In mid-March this year Qantas announced its intention to temporarily stand down approximately two-thirds of its employees, a total of around 20,000 workers. A number of Unions, on behalf of those Qantas employees, claimed that stood down workers were entitled to access paid personal, carer’s or compassionate leave during their period of stand down.

Qantas denied that it owed stood down employees these entitlements.

While the proceedings also dealt with certain entitlements under Qantas enterprise agreements, the relevance of the case for all employers is what the Court said about the provisions of the Fair Work Act (the Act) and the National Employment Standards.

No work, no income, no protection

If asked the question without looking at the provisions of the Act, most people would assume that where there is no work and an employee is stood down, it would be incongruous for that employee to be paid because they were sick or had to care for a family member. However, the words of the Act do not state this logical conclusion expressly.

The Court’s decision was that logic prevails following from:

• the terms of ss 97, 105, 524 and 525 of the Fair Work Act;
• an understanding of the object and purpose sought to be achieved by the power to stand down employees; and
• a proper understanding of the object and purpose of the leave entitlements in issue in the present proceeding.[2]

Central to the analysis of the above was the idea of personal, carer’s and compassionate leave as a form of ‘income protection’.

In circumstances where an employee is lawfully stood down, and there is no work which the employee can perform and thus receive an income for, an employee is not entitled to access these ‘income protection’ leave entitlements.

Should employees have been able to access sick leave and other related entitlements whilst lawfully stood down because there was no work, this would “go against the very object and purpose of conferring those entitlements – namely an entitlement to be relieved from the work which the employee was otherwise required to perform”.[3]

The Court also emphasized that the stand-down power itself served two important purposes; offering businesses financial relief and protecting workers from termination. Making employers pay these entitlements after standing down employees would defeat the principal purpose, being “namely, to protect the employer against such claims”.[4]

Takeaway for Employers

If you have had to stand down employees as a consequence of COVID-19 restrictions, and have done so lawfully, those employees do not have a right to access paid personal, carer’s or compassionate leave during their stand down period.

However, keep in mind that stood down employees can access other entitlements, such as annual leave, long service leave and government assistance like JobKeeper payments.

The unions involved have foreshadowed an appeal so employers should keep an eye on this space.

If this alert has raised any concerns for you in relation to stand downs and leave or other entitlements, please feel free to contact us here at Kingston Reid to discuss.

Alice DeBoos
Partner
+61 2 9169 8444
[email protected]

Kathleen Weston
Lawyer
+61 2 9169 8415
[email protected]

[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656, [35] (Qantas Decision).
[2] Ibid, [10].
[3] Ibid, [35].
[4] Ibid.

May 6, 2020

Signs are encouraging that our communities will slowly start to return to normal. Students are returning to schools, the Premier has encouraged business to “have a go” at reopening their doors provided adequate safety measures are in place, more people are downloading the COVIDSafe app and encouragingly the curve continues to flatten. In this context, it is likely that within a few weeks, employees will be encouraged to return to the workplace.

It was impressive to see how quickly and effectively NSW government sector employees were able to transition to a largely remote workforce where required (acknowledging of course that many continued to work as normal).  It is evident that there are both the resources and processes in place to facilitate a productive and engaged workforce working from home.  Whilst feelings will no doubt be mixed; it is inevitable that for a lengthy period there will be a portion of the workforce who will remain working from home; even if it is for just a portion of the week.

Flexible work has long been available to all NSW government sector employees.  Given the evidence that is now available to employees to support an argument that flexible work is successful on a large scale, agencies and departments should now start thinking about the circumstances in which flexible work is not desirable and instead when you need employees to be physically present in the workplace.  The preparations that you make now will make the return of your employees easier to manage.  It will also assist you to identify which roles will have greater restrictions in terms of flexible work and to explain why some requests for ongoing flexible work cannot be accommodated.

Of course, maintaining social distancing and hygiene measures will be paramount to any successful return to work planning. COVID-19 safe workplaces will require significant changes for the many thousands of public sector employees who hot desk or work in open plan environments.  These, at least for a time, will require adjustments as hot desking becomes a thing of the past.

What questions do you need to answer?

1. What work is best done in the office?

The recent period will have given you a clear indication of work which is simply more difficult to manage and complete from home.  It may be work that is more difficult for a team to complete when they all work remotely, or work that requires access to resources that are not available from home.

Identifying the work that is best performed in the office will enable you to identify which roles will require less flexibility moving forward.

2. When is it preferable to have a team working in person, and why?

No doubt in the last month, you have experienced the challenges that can arise when an entire team is remotely located.  Identifying and specifying that work which requires a team to work face to face either all or some of the time, will enable you to justify why certain teams may have less flexibility than others.

3. What works from home?

In the same way that you have been able to identify which work is not done as effectively from home, you will also have been able to identify work which can be done efficiently and effectively at home. Employees who perform that work, and who request ongoing flexibility should be more easily accommodated.

4. When does working from home cause a major disruption to the flow or completion of work?

It is important to identify those projects or other pieces of work that will be impacted if those people working on them are working from home. Those employees working on these projects, or pieces of work, may have less flexibility than others.

5. How does the physical office environment impact on the above?

Employees who previously hot desked or who work in open plan offices will be anxious to return where there is inadequate consideration of the physical environment and hygiene measures. A natural barrier to full integration, open plan layouts will require proactive planning around staggered working days and start times. Clear communication regarding expectations will be key.  The removal of hot desks, greater distancing and staggered starts will be the norm.

6. What about collaboration and team dynamics?

Separate from the details of specific tasks and operational requirements, a big factor in requiring physical presence is the need for employees to collaborate, supervise, coach, learn, interact and relate to one another in a physical environment. While this can be done remotely, it is often a poor substitute for a physical working environment and this should not be discounted. This is particularly important for very junior roles and those in supervisory or managerial positions.

How do you manage flexible work by a larger portion of your team on an ongoing basis?

As it is likely that there will be an increase in the number of employees working from home, it will be more difficult to maintain cohesiveness and inclusion once the workforce is split.  You will need to implement practices to:

1. Mitigate against isolation.
2. Ensure work is allocated in a fair and equal manner.
3. Ensure work and performance requirements are clear and demonstrable.
4. Address issues quickly when they arise.
5. Ensure that you can properly manage your employee’s performance as well as them meeting deadlines and achieving outcomes.

Remember there are steps you can take to require employees to perform their functions from the workplace.  It is preferable however to consult directly with your employees to resolve issues and questions that arise.

What safety issues do you need to consider?

Of course, the issues identified above raise a number of health and safety issues employers will need to consider when returning workers back into the workplace. We have identified a number of these issues in our article “Are you COVID-19 ready to get back to your workplace?”. These include:

• Have you identified the physical and psychological risks of your returning workplace arrangements, and what specific controls do you need to implement to address those risks?
• How will you consult with your workforce about the proposed arrangements including those workers who will continue to work from home?
• What hygiene and distancing measures do you need to implement to reduce the COVID-19 risks and are compliant with WHS legislation (including applying the hierarchy of controls)?

It will be crucial that you remain up to date with Federal and State health authority updates and information from Safe Work Australia’s COVID-19 Information for Workplaces pages to meet your health and safety obligations.

COVID-19 has given both departments and agencies the chance to lead the way in properly assessing how to make the most of working from home.  Whilst there will be employees who are happy to return to the office as soon as possible, there will be others who want to continue to work from home. It is important that whatever model you implement works for your team, your department or agency and you. Giving consideration to these factors now will assist both with returning your employees to the workplace and managing an increased remote workforce, both now and in the future.

Lucy Shanahan
Partner
+61 2 9169 8405
[email protected]

Christa Lenard
Partner
+61 2 9169 8404
[email protected]

John Makris
Partner
+61 2 9169 8407
[email protected]

May 1, 2020

The New South Wales, Queensland and Western Australian Governments recently announced plans to slowly wind back social distancing restrictions from late April 2020 and early May 2020. The Victorian Government has indicated it won’t take similar steps until it is certain that there is no undetected community transmission.

The Prime Minister is urging schools to re-open and has recently indicated that Australia is ‘not too far away’ from easing coronavirus restrictions. And, he says, the COVIDSafe app is the ‘ticket’ to ending COVID-19 (but that’s a discussion for another time).

What does this mean for workers returning to workplaces where the COVID-19 risks in the community remain?

The official position, it appears, is that Australians should continue to work from home unless you can’t work remotely. There are many industries which have been ‘identified’ as essential, such as health, aged care, education, construction and supermarkets. Those workers have continued working from their workplaces because working from home is simply not an option or their services are essential (eg the supply of toilet paper). There are many other workplaces who have implemented unique hybrid arrangements which have included partial working from the workplace location and partly from home. Others have their workforces working productively from home.

Let’s face it: For many of us who have been working from home, we are itching to get back to the workplace (even if it’s just so we can attend Friday afternoon drinks).

As the COVID-19 curve hopefully continues to flatten, and as restrictions are hopefully eased, we need to think about how we are going to transition our workforces back into the workplace.

Here are some things to think about when transitioning part or all of your workforce back into the workplace:

There may be more things to think about that are specific to your business.

As to exactly when back-to-workplace transitioning occurs, that is anyone’s guess (stay tuned to the Chief Medical Officer).  However, these issues can’t be considered and implemented overnight. Your business will need to plan for getting everyone back safely.

Please stay in touch with the current advice from the health authorities.

Our COVID-19 Resources Page will be updated as information and guidance becomes available. And of course, if you just want to have a chat to break that COVID-19 isolation monotony, give us a call.

Source: Department of Health

John Makris
Partner
+61 2 9169 8401
[email protected]

April 8, 2020

A Bill proposing amendments to the Fair Work Act 2009 (FW Act) has been introduced into Parliament today, 8 April 2020.

The amendments propose temporary changes to the FW Act to assist employers who qualify for the JobKeeper scheme to deal with the economic impact of COVID-19.

There are three categories of amendments.

1. JobKeeper-enabling stand down
2. Alteration to duties and location of work
3. Agreement to change days of work or take annual leave

JobKeeper-enabling stand down

The JobKeeper enabling stand down provisions allows an employer to alter an employees’ hours of work by directing an employee to:

• not work on a day the employee would usually work
• work for a lesser period than they would ordinarily work on a particular day
• work a reduced number of hours (including no hours).

Any such direction may only occur where it is:

• safe; and
• the employee cannot be usefully employed at their normal days or hours because of changes attributable to COVID-19 pandemic; or government initiatives to slow the spread of COVID-19.

The direction must be in writing and requires the employer to:

• give the employee written notice of the intention to give the direction; and
• provide the notice at least 3 days (or less, by agreement) before the direction is given; and
• consult with the employee (or a representative of the employee) and keep written records of the consultation

The direction will cease to have effect no later than 28 September 2020.

This amendment will not change the hourly rate of an employee subject to a direction.

The JobKeeper enabling stand down direction does not apply to the employee during a period when the employee:

1. is taking paid or unpaid leave that is authorised by the employer; or
2. is otherwise authorised to be absent.

Alteration to duties and location of work

This amendment allows an employer to alter the duties performed by an employee or the location of the employee’s work.

Duties
An employee may be directed to perform alternative duties if the duties are:

• safe;
• reasonable in all the circumstances;
• within the skill and competency of the employee; and
• reasonably within the scope of the business in question

The employee must not earn less than:

• what they are currently earning; or
• the base rate of pay applicable to the duties the employee is performing as set out in an industrial instrument,

whichever is greater.

Location
An employee may be directed to perform duties at a different location where:

• the place is suitable for their duties
• the place does not require unreasonable travel
• the location is safe

A direction to alter duties or location is only reasonable to the extent that it is necessary to ensure the employee’s continuing employment.

Agreement to change days of work or take annual leave

Changing days of work
An employer who qualifies for JobKeeper in relation to an employee and that employee to agree to the employee performing work on different days or at different times during a period.
The agreement is authorised if the employer qualifies for the JobKeeper scheme in relation to that employee; and if

• the performance of the duties on different days or at different times is safe, having regard to the nature and spread of Coronavirus and reasonably within the scope of the employer’s operations; and
• the agreement does not reduce the employee’s number of hours of work compared with the employee’s ordinary hours of work (noting the ability to reduce hours under section 789GDC of the proposed Bill).

Employees must consider and must not unreasonably refuse the employer’s request for agreement to these arrangements. In the absence of an employee’s agreement the matter could be settled by the FWC.
The circumstances of the workplace will inform what is reasonable.

Taking annual leave
An employee can consider their employer’s request for them to take paid annual leave and can agree to take paid annual leave at half pay.

If an employer qualifies for the JobKeeper scheme in relation to an employee, the employee must consider and must not unreasonably refuse the employer’s request to take annual leave, provided that the leave arrangement will not result in a leave balance of less than 2 weeks. In the absence of an employee’s agreement the matter could be settled by the FWC.

Employees and employers can also agree to the employee taking twice as much annual leave at half the employee’s rate of pay for a period.

An employee or employer may seek review of a decision made under the amendment by the Fair Work Commission (FWC). The FWC may review through the usual means including conciliation or arbitration.

Any contravention of the amendments may result in penalties.

For additional information and resources relating to the workplace impacts of COVID-19, visit our COVID-19 Resources page.

Christa Lenard
Partner
+61 2 9169 8404
[email protected]

Sophie Baartz
Associate
+61 2 9169 8416
[email protected]

Xanthe Shaw
Lawyer
+61 8 6381 7055
[email protected]

April 7, 2020

With the outbreak of COVID-19 being labelled the biggest thing to impact Australia’s workforce, employers would be forgiven for assuming that everything else has been on hold.

That is not the case and businesses need to be aware of possible legislative amendments to the New South Wales Work Health and Safety Act 2011 (the Act), made by the Work Health and Safety Amendment (Review) Bill 2019 (the Bill). The Bill, if passed, will implement a number of recommendations outlined in Ms Marie Boland’s review of work, health and safety laws (WHS).

It attempts to strike a balance between the objective of maintaining nationally consistent work health and safety regulation and the NSW Government’s goal of reducing risks to workers’ safety.

Key amendments

Category 1 offences

Currently, in order to obtain a conviction for a Category 1 offence (being recklessness), it must be established that a Person Conducting a Business or Undertaking (PCBU) made a conscious choice to take an unjustifiable risk, which resulted in an injury or death of a worker.

If the Bill is implemented, “gross negligence” will be included alongside recklessness as a fault element. This means that it is no longer necessary for a prosecutor to establish that the PCBU made a conscious choice and, consequently, it will become easier to successfully prosecute a Category 1 offence.

Insurance against WHS fines

The Bill will make it an offence, without a reasonable excuse, to provide, enter into, or benefit from an insurance or indemnity arrangement that covers liability for a monetary penalty under WHS laws. This regulates the longstanding common law public policy position that indemnity ought not be available for a criminal penalty.

There will be a transitional provision which provides that a person does not commit an offence for providing insurance or indemnity, or for taking the benefit of such insurance, if the insurance or indemnity was in force before the commencement date of the Bill and any payment made was not in relation to a penalty for an incident that occurred after the commencement date of the Bill.

Increased maximum penalties

The maximum fine for a category 1 breach will instantly increase from $3 million to $3,463,000 and from $600,000 to $692,500 for an officer (or individual who is a PCBU). This will be the first increase in the maximum penalties of WHS law in NSW since the law was harmonised from 1 January 2012.

The Bill will also increase other penalties arising under the Act, for example:

• All penalties of $50,000 will be increased to $57,500. and
• all penalties of $100,000 will be increased to $115,500.

Clarity surround manslaughter

While NSW does not appear to be following the other States in implementing specific industrial manslaughter provisions, the Bill will insert a note into Part 2 of the Act to make it clear that in certain circumstances the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act.

Choice of training

The Bill clarifies that health and safety representatives (HSRs) are entitled to choose their course of training and that the relevant PCBU and the HSR will consult each other about, and agree on, the reasonable costs associated with the training.

Investigative powers of workplace inspectors

The Bill will amend inspector’s powers under the Act to allow an inspector who has entered a workplace to exercise their section 171 investigative powers for up to 30 days.

Timeline for regulators to start a prosecution

The Bill will extend the time in which a person can request a regulator to bring a prosecution from 12 months to 18 months.

Application of the Act to dangerous goods and high-risk plant

The Bill will amend the Act to clarify that the Act applies to dangerous goods and high-risk plant that is stored, operated or used at premises that are not a workplace or for use in carrying out work.

When we will see these changes implemented?

As of 24 March 2020, the Bill had its first reading before the Legislative Council. However, given the uncertainty that follows COVID-19, the changes may not be implemented until late 2020.

These changes will be significant and businesses should use any down time created by the impact of COVID-19 upon their business to review their safety management systems and assess the impact of the proposed changes.

John Makris
Partner
+61 2 9169 8407
[email protected]

Erica Elliott
Special Counsel
+61 2 9169 8409
[email protected]

George Stent
Paralegal

April 2, 2020

What Should you Be Doing?

We all know that the possibility of COVID-19 infection is a real one.

We also know that it is a workplace risk that needs to be managed by employers and Persons Conducting Businesses or Undertakings (PCBUs).

The risk controls we need to develop and implement may be COVID-specific, but the way we go about identifying, assessing and eliminating or minimising them is the same way in which the safety laws require us to tackle any other workplace risks.

So, you should be (at least) doing the following on a regular basis:

1. Comply with Government directives and advice

As a first and minimum step, your business should comply with national and state public health directions relating to COVID-19.

They are available on the Departments’ websites and you should check them frequently to make sure you are working with the most current information.

Current measures you should be taking include:

• Reducing direct contact between workers and other persons, including:
  • Social distancing of at least 1.5 metres (and 1 person per 4sqm indoors),
  • Barriers or spacing between workstations, seated areas, etc.,
  • Modifying shifts and rosters to reduce peak periods,
  • Supporting flexible work arrangements where possible, including working from home.
• Reducing environmental exposure, including:
  • Frequently cleaning and disinfecting of high traffic areas and shared surfaces,
  • Providing appropriate cleaning products and instructions for cleaning workspaces,
  • Providing amenities for personal hygiene and infection control,
  • Inspecting and reviewing air conditioning and ventilation systems.

2. Keep consulting

Your business must assess the risks of COVID-19 in consultation with workers, particularly when devising and implementing control measures to minimise the spread of the virus.

You should also be consulting with the people with whom you share a duty to keep your workers and workplaces safe, such as building managers, co-commercial tenants and (potentially) landlords.

We’re all in this together.

3. Don’t forget regulator notifications

Remember that PCBUs and employers may have notification requirements to safety regulators where any confirmed or uncontrolled exposure to serious illness, including COVID-19, occurs or where workers are admitted as in-patients in hospital as a result of exposure in the workplace.

4. Make sure what you’re doing is working

We all need to be regularly assessing the effectiveness of what we are doing to contain COVID-related infection risks in the workplace.

Keep up to date with Government advice.

Keep talking to your colleagues and fellow duty-holders.

Our best resources are our public health authorities. Listen to them and do what they tell you to do. The safety regulators are following their guidance and expect businesses and workers to do the same.

Not everyone is coming into the workplace now

That’s just where we are now.

You should be providing clear direction and guidance to workers about what is expected of them in terms of:

• Knowing when to stay away from the workplace,
• What they need to do if they become unwell,
• What symptoms they need to know about,
• Maintaining a safe working environment at home (we’ve put together a checklist of things to think about and you can access it here).

If people are coming into work you need to make sure that they have access to a hygienic workplace and that they maintain social distancing when they are at work.

Hygienic practices to be reinforced include:

• Frequent and thorough hand washing,
• Actively encouraging social distancing (including limiting access to other people in the workplace),
• Covering mouths while coughing or sneezing,
• Staying away from the workplace if they are unwell and encouraging them to seek medical advice.

Please remember that some members of your workforce will have different infection risk profiles and you need to pay special attention to keeping them safe.

Workers over 60 and indigenous workers over 50 can be more susceptible to infection and/or less able to fight off the virus if they catch it.

The same goes for people with compromised immune systems or chronic illnesses.

Workers from non-English speaking backgrounds may need access to translated material. Use available pictorial resources to get the message across.

You need to properly assess the risk of infection for your specific workers and that the measures you take to keep them safe are targeted to their specific circumstances.

Also remind workers that they have a duty to take reasonable care for their own health and safety.

The safety laws provide that workers have a right to cease, or refuse to carry out work, if they have a reasonable concern that carrying out work would expose them to an immediate or imminent risk of COVID-19. That worker must, however, remain available to carry out suitable alternative work, e.g., work from home. Where such work is not available, PCBU’s and employers may exercise their rights to ask workers to take leave or stand down workers where appropriate.

On our website you can access our COVID-19 Critical Information for Employers for each State and Territory together with our infographic factsheets.

Are your workers at home OK?

Most of us are working from home and we all know that presents unique challenges that we have to overcome.

Keeping track of workers’ mental health is one such challenge and it needs to be one of your priorities.

Most people are worried about their children, their jobs, their mortgages and rents, whether they are feeling hot or tired because they’re sick and even just how they are going to fill in today and tomorrow.

Keep talking to your workers. Let them know they are being heard and that they are front of mind.

Talk to them about how work will be conducted differently to reduce infection risk and facilitate flexibility and consider work modifications to help workers manage their workload and family and carer responsibilities.

Give them information about their entitlements that they can access where they are caring for family members or become unwell with COVID-19.

Be open and transparent about how COVID-19 risks may impact upon their working arrangements.

Remind your workers that they are valued and that what happens to them and their families matters to all of us.

Encourage discussions to let workers to share and learn from others.

Make EAP and support services available and let your colleagues know how to access them.

Encourages workers to stay connected through regular communication, e.g., by phone or videoconferencing. Consider practical measures such as daily catch-ups.

Be aware of behaviour and communication changes in workers and recognise signs that may indicate someone is struggling.

Encourage work breaks and physical activity as permitted by law.

There’s lots we can do to help each other, so let’s get out there and do it.

We have prepared an example Checklist for Working at Home which can be adapted to your specific circumstances to makes sure you and your workforce are assessing the risks of working at home.

What happens if a colleague is infected?

There are no specific provisions in the safety legislation that deal with when a PCBU or employer may direct a worker to stay away from their usual place of work.

PCBUs and employers should, however, ensure that a worker confirmed to have COVID-19 does not return to work while they are infectious or as otherwise directed by health authorities.

Make sure that you have consulted with your workers about what you’ll each do if someone at work becomes infected with COVID-19.

This isn’t about workplace politics or IR issues. This is about all of us doing our part to make sure we stay safe.

Prepare and follow your Pandemic Plan

Businesses should also develop a pandemic plan in consultation with workers.  That plan should cover:

• Prevention and preparedness,
• Response – initial action,
• Response – targeted action, and
• Recovery

Please see our COVID-19 page on our website for further information on pandemic plans.

Please contact us if you have any questions as to how to address COVID-19 risks in your workplace.