Breaking the silence: New whistleblower legislation

 

Rocio Paradela, Graduate Associate

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Cth) passed both Houses of Parliament on 19 February 2019, and is now awaiting Royal Assent. This legislation aims to consolidate and broaden whistleblower protections for the corporate and financial sectors, and to introduce a whistleblower protection regime with respect to breaches of tax laws.

The events surrounding the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry has put the spotlight on misconduct in these sectors, and on the role that whistleblowers may play in bringing such conduct to light.

The regime is relatively complex as it sets up a number of qualifying requirements for disclosures to be protected under the legislation.

Who is an eligible whistleblower?

Individuals who qualify for protection include current and former employees, officers and directors, contractors, suppliers, unpaid workers, family members of employees, and certain designated individuals in relation to superannuation entities.

What disclosures are protected?

Disclosures of information may qualify for protection where there are reasonable grounds to suspect that the information concerns misconduct, an improper state of affairs, conduct that could constitute an offence, or other prescribed circumstances. In addition, to qualify for protection disclosures need to be made to a relevant authority, a legal practitioner or an appropriate person (referred to as an “eligible recipient”). In the case of a corporate entity, this includes an officer or senior manager, or a person authorised to receive disclosures.

However, there is provision for certain public interest and emergency disclosures, and personal work-related grievances are on the whole excluded from the protections.

How will an eligible whistleblower be protected?

The legislation provides a number of levels of protections for whistleblowers. These include in relation to the confidentiality of whistleblowers’ identity, prohibitions on victimisation and detrimental treatment, immunity from liability in certain circumstances, and the capacity to apply for compensation.

The policy imperative

One area for employers to note in particular is that as a consequence of this legislation, certain entities (such as public companies, large proprietary companies and proprietary companies that are the trustee of a registrable superannuation entity) will be required to have a whistleblower policy in place. Failure to comply with this requirement is designated as a strict liability offence.

A policy must contain information about:

  • the protections available to whistleblowers, including the protections available under the legislation;
  • how and to whom an individual can make a protected disclosure;
  • how the company will support whistleblowers and protect them from detriment;
  • how the company will investigate disclosures that qualify for protection under the legislation;
  • how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures;
  • how the policy will be made available; and
  • any other prescribed matter.

Many of the provisions are designed to commence some months after Royal Assent is received. This gives organisations a window of time to examine their practices and to get an appropriate policy framework in place. Employers are also encouraged to consider appropriate training to deal with the new legislation, particularly for staff that are likely to be the designed recipients of disclosures within their organisation.

If you require any advice as to how these legislative changes may affect you or your organisation, please feel free contact People + Culture Strategies on (02) 8094 3100.

A Chain Reaction: Modern Slavery Bill Under Consideration

 

Daniel McNamara, Graduate Associate

On 17 September 2018, the House of Representatives passed the Modern Slavery Bill 2018 (Cth) (the “Commonwealth Bill”) which is currently before the Senate.

Background

While there is no set definition of “modern slavery”, it is regarded as the full or partial servitude of people which can involve “human trafficking, slavery, forced labour, removal of organs and slavery-like practices”.1 For large businesses operating in Australia, a risk of modern slavery may arise within the supply chain of producing goods and services, as has occurred with respect to forced labour in the agriculture and construction industries. Another scenario that has given rise to concerns is where a business allows (or turns a blind eye to) workers paying off “debts” owed to others by working indefinitely without being paid a wage.

Since 2004, over 50 prosecutions have occurred in relation to modern slavery under the Criminal Code Act 1995 (Cth).2 However, the liability and accountability of large entities within Australia remains limited due to the lack of legislation requiring entities to conduct due diligence in preventing modern slavery throughout entities. The result is that instances of modern slavery within organisations’ supply chains, operations and structures may fail to be recognised or no preventative action is taken. With this in mind, in February 2017, the then-Commonwealth Attorney General, George Brandis, requested the Joint Standing Committee on Foreign Affairs, Defence and Trade, to consider the introduction of modern slavery legislation in Australia.

Amongst other things, the Joint Standing Committee drew closely on the 2015 legislation introduced in the United Kingdom, as well as considering 225 public submissions and conducting 10 public hearings between May and October 2017. If it is enacted, the Commonwealth Bill will be the first piece of federal legislation to deal with modern slavery.

Nature of the obligations

The sole requirement of the Commonwealth Bill is the obligation of entities with a consolidated revenue of at least $100 million to publish modern slavery statements relating to the potential risks that exist in their operations and supply chains in relation to potential modern slavery.3

Unlike the Modern Slavery Act 2018 (NSW) (the “NSW Act”) introduced earlier this year, which imposes a penalty of up to 10,000 penalty units ($1.1 million) for failure to file a compliance statement,4 the Commonwealth Bill has no such sanctions. Instead, the Commonwealth Bill takes a “soft line” on enforcement. As Senator Nigel Scullion stated in the Second Reading Speech for the Bill, “[b]usinesses that fail to take action will be penalised by the market and consumers and severely tarnish their reputations”.5

How might this affect your business?

As compliance with the Commonwealth Bill will require an organisational level approach to assessing risk, human resource managers may be required to contribute to the process of producing modern slavery statements. Amongst other things, this will involve identifying the structure, operations and supply chains of the reporting entity, the risks of modern slavery throughout the entity’s operations and supply chain, assessing any risks and taking appropriate action.6

For NSW businesses, the requirement of a modern slavery statement as prescribed by the NSW Act is removed if the organisation is subject to a “law of the Commonwealth … that is prescribed as a corresponding law”.7 It is not yet clear whether the prospective Commonwealth legislation will be a “corresponding law” to the NSW Act, meaning that NSW businesses may be required to produce modern slavery statements on both a state and a federal level to satisfy both reporting regimes.

Key takeaways

  • Businesses with a consolidated revenue of at least $100 million should consider their strategies for producing a modern slavery statement that reflect the risks within their operations and supply chains to comply with the Commonwealth Bill.
  • There are no pecuniary penalties in the Commonwealth Bill for non-compliance.
  • NSW businesses may be subject to both Commonwealth and state compliance requirements in creating modern slavery statements.

What’s on your Mind?: Mental Health in the Workplace

Rocio Paradela, Graduate Associate and Daniel McNamara, Graduate Associate

Mental health issues can have a resounding impact on productivity, performance and culture within workplaces of all sizes and industries. Approximately 21% of Australian employees have taken time off in the past 12 months for mental health reasons and this has a significant impact not just for the employees, but their colleagues, managers and the rest of the workplace.The effect that mental health conditions, such as depression and anxiety, can have on Australian business is estimated as being approximately $11 billion per year1. This calculation is based on figures for absenteeism, presenteeism, reduced work performance, increased turnover rates and compensation claims.

Legal implications

From a legal standpoint, employers owe a number of obligations to employees regarding their psychological health at work.

Under work health and safety legislation employers must provide a safe and healthy workplace and take action to eliminate and minimise any potential risks to the health and safety of all employees and those present at the workplace. This is not confined to the physical environment but extends to psychological impacts as well.

In relation to mental illness, the obligations include:

  • identifying possible workplace practices, actions or incidents which may be causing, or contributing to poor outcomes for workers in terms of their mental health; and
  • taking actions to eliminate and minimise those risks.

Under state and federal anti-discrimination laws employers have an obligation to make reasonable adjustments for employees with disabilities to enable them to perform the inherent requirements of their job. Examples of such adjustments include offering flexible working options or changing aspects of the workplace arrangements or practices. However, an adjustment is not required if it would impose an “unjustifiable hardship” on the employer, or the employee would not be able to perform the inherent requirements of the job even with such adjustments.

The Fair Work Act 2009 (Cth) also provides protection for employees with mental health illness from adverse action taken by an employer because of their disability. Potential forms of adverse action include dismissal, refusing to employ a prospective employee or discriminating against an employee.

Responding at the workplace level

There is no “one size fits all” approach to implementing strategies that promote a mentally healthy workplace. Common organisational responses include:

  • Employee Assistance Programs;
  • flexible work arrangements;
  • policies which address mental health issues; and/or
  • mental health leave (via personal leave and/or the implementation of mental health days).

These types of strategies are designed to assist employees to manage their mental health issues and, more broadly, to enhance the prospect of a healthy workplace.

On a more individual level, a commitment by employers to properly address the mental health issues of their employees is fundamental, not only in employers meeting their legislative obligations, but also for all employees to flourish in their employment. Employers should ensure that the needs of employees who are experiencing mental health issues are understood, that the impact of workplace practices on these issues are monitored, and that employees receive the support they require. This may necessitate adjustments being agreed to between the employer and employee, and efforts made to keep under review workload distributions, hours and leave arrangements.

Key takeaways

We recommend that employers consider the following dos and don’ts in their approaches to mental health in the workplace:

Do:

  • Observe and monitor changes in employees’ behaviour
  • Foster help-seeking
  • Work constructively with employees who have mental health issues
  • Show empathy to employees requiring support
  • Create open channels of communication

Don’t:

  • Tolerate a poor workplace culture
  • Rely on performance management as a means of dealing with mental health issues
  • Make presumptions about the perceived capabilities or weaknesses of employees with mental health issues
  • Treat employees differently as a result of their mental health status

1.  Blackdog Institute and beyondblue (2016), “Developing a mentally healthy workplace: A review of the literature”, Report prepared for the National Mental Health Commission, Sydney.


FWC decides on Family or Domestic Violence

 

Rohan Burn, Graduate Associate

The Fair Work Commission decision in March 2018 recognised that family and domestic violence “is an issue that impacts on workplaces and…requires specific action.”

As part of the four yearly review of modern awards, in July 2017 the Full Bench of the Fair Work Commission (“FWC”) formed the preliminary view that it was necessary to make provision for family and domestic violence leave, but that they were not satisfied that it was to include in all modern awards an entitlement to 10 days’ paid leave. However, the FWC did express the preliminary views that all employees experiencing family or domestic violence should have access to unpaid leave and that employees should be able to access personal/carer’s leave for the purpose of taking family and domestic leave.

Parties were then provided with the opportunity to make submissions before the decision was finalised. In March 2018 the Full Bench reconvened, and decided to provide five days unpaid leave per annum to all employees (including casuals). However, it deferred consideration of whether employees should be able to access personal/carer’s leave for the purpose of taking family and domestic violence leave.

While the exact wording of the new model term has not been finalised, the March 2018 Full Bench decision gives a good indication of the scope of the obligations.

Proposed model term

As it is currently framed, the model term will allow an employee experiencing family or domestic violence to take five days’ unpaid leave per annum if:

  • the employee needs to take some action to deal with the impact of family or domestic violence; and
  • it is impractical for the employee to do that outside their ordinary hours of work.

The leave will be available for full-time, part-time, and casual employees. Eligible employees will be entitled to the full five days’ leave from the start of each year, but the leave will not accumulate.

In applying for the new entitlement:

  • an employee will need to give notice to their employer as soon as practicable (which may be a time after the leave has started) advising the employer of the expected period of the leave;
  • an employee, if required by the employer, will need to provide evidence that would satisfy a reasonable person that the leave is taken for the specified purpose; and
  • employers will need to take steps to ensure that the employee’s information is treated confidentially (as far as it is reasonably practicable to do so).

How this entitlement will fit in with other rights and obligations

Once the drafting of the model term has been finalised, employers will need to amend their policies accordingly. Many employers may have been dealing with this type of leave entitlement already, as it has been incorporated in a range of enterprise agreements for some time, and often on more generous terms, including paid leave entitlements. There is also an existing obligation under the Fair Work Act 2009 (Cth) to consider requests for flexible work arrangements for those experiencing family or domestic violence, and those supporting someone in this situation.

Key takeaways

  • Once the term has been finalised, employers will need to review their existing policies to ensure it meets the new minimum set by the model award term.
  •  The inclusion of casuals within the scope of this new entitlement needs to be taken into account.
  • Whether employees dealing with family or domestic violence can avail themselves of forms of paid leave, such as personal or carer’s leave, remains to be determined.

 

Doesn’t add up: no accrual of leave entitlements during a lockout

 

Roseanna Smith, Graduate Associate

The Fair Work Commission (“FWC”) has held that a lockout constituted an “excluded period” of service under the Fair Work Act 2009 (Cth) (“FW Act”), and consequently that the employees affected by such action did not accrue annual leave or long service leave during this period.

What is an “excluded period”?

The FW Act provides that a period of service is a period during which the employee is employed by the employer, but does not include an “excluded period”.

An excluded period is defined to include any period of unauthorised absence or any period of unpaid leave or unpaid authorised absence (other than certain specified categories).

When calculating leave entitlements, an excluded period will not be included in a period of service, although it does not break the employee’s continuous service.

In April 2017, after a year of enterprise agreement negotiations, an employer locked out its employees in response to notified industrial action that was to take the form of work bans and four-hour stoppages. A dispute then arose as to whether the lockout constituted an “excluded period”.

Annual Leave

The FWC decided that a lockout was an unpaid authorised absence, as it was an absence “that is endowed with authority or approval” by the employer. The FWC determined that it did not matter whether the employees who were absent “agreed or wished to be absent”; what is relevant is that the absence was authorised by the employer.

The FWC was of the view that because the FW Act expressly deals with the situation where employees are stood down as being included in a period of service, it considered that the legislature had turned its mind to the issue. Hence, if a lockout period was meant to be included for the purpose of calculating leave entitlements the legislature would have expressly included that within the FW Act provisions.

Long Service Leave

Both the relevant Modern Award provisions and the relevant state long service leave legislation (Long Service Leave Act 1992 (Vic) (“LSL Act”)), referred respectively to an “unbroken contract of employment” and “continuous employment”. The Modern Award and the LSL Act provided for exclusions when calculating long service leave, including “service interruptions”, such as industrial disputes. The Commission agreed with the employer that the ordinary meaning of industrial dispute included disputes arising from enterprise agreements and lockouts. Consequently, during the period of the lockout the accrual of long service leave was effectively paused.

The decision is significant because it highlights that the consequences of industrial action can extend to employee entitlements. It remains to be seen whether the decision will discourage industrial action by employees.

 

Key takeaways

  • The taking of industrial action, including by an employer in response to actions by employees, can have consequences for leave entitlements.
  • Certain actions may give rise to an “excluded period” and will not count towards the length of the employee’s service, but do not break the employee’s continuous service.
  • In the case of long service leave, industrial action may have an effect on the entitlement depending on the terms of the exclusions in the relevant state legislation and industrial instrument.

 

Not the norm: annual leave entitlements for nurses

 

Ellen Davis, Associate

When we think of annual leave we often think of four weeks as the norm, as well as an additional week for certain types of shiftwork. But in some cases, the base entitlement is higher, and it is also necessary to look carefully at which employees qualify under the shiftwork provisions.

For example, employees covered by the Nurses Award 2010 are entitled to five weeks’ annual leave, and those who are engaged in shiftwork are entitled to six weeks’ annual leave.

The Nurses Award

While the Nurses Award, like most other modern awards, adopts the National Employment Standards, it goes on to provide additional annual leave entitlements to employees covered by the Award.

Clause 31.1 of the Award provides:

a) In addition to the entitlements in the NES, an employee is entitled to an additional week of annual leave on the same terms and conditions.

b) For the purpose of the additional weeks annual leave provided by the NES, a shiftworker is defined as an employee who:

i. is regularly rostered over seven days of the week; and

ii. regularly works on weekends.

c) To avoid any doubt, this means that an employee who is not a shiftworker for the purposes of clause 31.1(b) above is entitled to five weeks of paid annual leave for each year of service with their employer, and an employee who is a shiftworker for the purposes of clause 31.1(b) above is entitled to six weeks of paid annual leave for each year of service with their employer.

Hence, an award or agreement may provide a more generous base entitlement than the NES, and define shiftwork for the purposes of that award or agreement in a particular way.

What does “regularly rostered” or “regularly works” mean?

There are authorities spanning through the different industrial tribunals and commissions which provide that an employee “regularly works Sundays and public holidays if they have worked at least 34 Sundays and 6 public holidays in a year”.1 While this decision was in the context of award and agreement free employment and the Full Bench has not yet had the opportunity to confirm that the above principle applies universally to all modern awards, it is expected that the Fair Work Commission would be guided by, and have little reason to depart from, the above principle in determining any dispute about the interpretation of “regularly works” or “regularly rostered”.

In the context of the Nurses Award, it would appear from the use of the words “regularly works weekends” that Saturday shifts would be included in the quota of 34 Sundays.

 

Key takeaways

  • Employers should check the specific wording of the award or agreement regarding annual leave entitlements.
  • In the case of additional leave entitlements for shiftwork, working a minimum of 34 shifts on Sundays per year tends to be the prevailing standard, but this can be varied by an award or agreement.
  • Employers who wish to minimise their additional annual leave costs could consider how they organise their rosters.

The Fair Work Commission gives Uber a Christmas gift: Drivers are not employees

 

Rohan Burn, Associate

In December 2017, the Fair Work Commission (“FWC”) dismissed an Uber driver’s unfair dismissal application on the basis that the applicant was not an employee and therefore not able to pursue this statutory remedy. This decision contrasts with a recent UK employment tribunal decision in which Uber drivers were found not to be self-employed, and were consequently found to be entitled to basic workplace rights.

Some caution needs be applied to taking this as a green light for gig-economy work arrangements as being beyond the scope of employment laws, as the applicant had no legal representation and it is a single member decision.

The FWC found the overseas decision to be of “no assistance” to the applicant because of the significantly more expansive definition of a “worker” in the United Kingdom. In the Australian context, there is no statutory definition of employment and a worker’s status is determined by reference to common law principles. This requires a multi-factorial analysis of the formal terms and actual work practices adopted between the parties. Deputy President Gostencnik did suggest the emphasis on a work-wages bargain and the current indicia that distinguish an employee from an independent contractor may be “outmoded” for participants in the digital economy.

The contractual relationship

Those unfamiliar with the specifics of Uber’s service agreements may be surprised that the respondent maintained Uber was in no way affiliated with providing transport services in Australia. Uber is self-defined as a technology company that provides a software application which enables a driver to accept a request from an Uber app user (a “Rider”). This acceptance creates a direct legal relationship between the driver and Rider that is independent of Uber and its affiliates.

The FWC agreed that Uber does not pay the driver for a service but rather charges the driver a service fee that is calculated as a percentage of the fees paid by the Rider. This was not “seriously challenged” by the applicant and this contributed to the absence of any work-wages bargain, as there was no obligation on the driver to perform a service and for Uber to pay for that service.

Indicia of worker status

At common law, a key indicium of an employment relationship is the amount of control over a worker. A major problem for the applicant in arguing that he was an employee of Uber was the “complete control” he had in the provision of his service to Riders. Part of Uber’s appeal to drivers is said to lie in their ability to determine when they work, for how long, and in what locations. Uber drivers also operate and maintain their personal vehicles, must wear their own clothes, and style how they interact with Riders.

The FWC found these factors outweighed the need for drivers to accept and meet Uber service standards aimed at protecting the Uber brand, ensuring customer satisfaction, and maintaining safety requirements. These standards are assessed based on the ratings that Riders give their drivers and Uber maintains the right to deactivate a driver’s account if, as in this case, those ratings are consistently poor.

Possible ramifications for your business

  • There is an increasing tension with the applicability of the traditional common law tests to modern labour markets.
  • The understanding of the parties and the description in the contract is not determinative of how the relationship will be characterised.
  • Developments in common law or legislative intervention may have ramifications that affect your organisation’s rights and obligations if employment relationships are seen to be inadvertently created.
  • Multiple factors must be taken into consideration to determine a worker’s employment status and PCS can assist employers to ensure their arrangements with “independent contractors” are genuine.

Sealing the deal: When is a settlement reached?

Ellen Davis, Associate

A recent decision of the Full Bench of the Fair Work Commission demonstrates that while the parties may be confident a deal has been struck, the communications between the parties will be essential in determining, objectively, whether an intention existed to make a concluded and binding settlement.

Background

The Applicant, a 77-year-old with 34 years of unblemished service with the Respondent was dismissed based on his failure to follow safety policies, procedures and guidelines while working in a safety critical location, causing significant risk of harm to himself, his team and members of the public. The Applicant disputed the dismissal.

Prior to the matter being heard, the Applicant and Respondent’s representatives engaged in settlement negotiations and it was said that an agreement to settle was reached in principle. The hearing was vacated, with leave to apply for it to be restored should the parties not be able to agree upon the deed. The Applicant disputed that a binding settlement had been reached between the parties and submitted that the Respondent had made a counter offer which he did not accept.

Offer to Settle

The Applicant proposed to settle on the following terms:

  1. the Applicant would be re-employed;
  2. upon re-employment, the Applicant would perform administrative tasks only;
  3. unless required by the Respondent, the Applicant would not perform any work which would attract overtime and/or penalty rates; and
  4. the Applicant was not to receive any back pay or benefits for the period between termination of employment and re-employment.

The Respondent accepted the offer, subject to further qualifications provided in a draft deed for the Applicant’s review. The qualifications specified:

  1. re-employment was subject to the passing of a medical assessment (the “First Qualification”);
  2. the Applicant was excluded from working at any safety critical environments (the “Second Qualification”); and
  3. the settlement would be subject to confidentiality (the “Third Qualification”).

The Applicant was of the view that the qualifications did not constitute an acceptance and he sought to relist the matter for a hearing.

The Decision

In resolving whether the matter was settled and the Applicant was precluded from having the matter heard, the Full Bench made the following comments about when an agreement is reached. Acceptance:

  1. corresponds to an offer if it is an unequivocal acceptance of the terms offered;
  2. is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance;
  3. will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree’s own words the effect of the offer; and
  4. will be effective if it sets out expressly what would be implied by law in the absence of express agreement. For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms.

Similarly, if a purported acceptance of an offer merely includes the “machinery of working out what was meant by the offer” it does not revoke the offer and may constitute acceptance of the offer.

Ultimately, the question was whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be…such that it would amount to a counter offer, or at any rate not an unconditional acceptance of what was originally offered”1 .

The Full Bench considered the Respondent’s three qualifications to the Applicant’s offer. The First Qualification was held as a term capable of being implied. The Second Qualification was held not to be solely for the benefit of the Applicant and deviated from the offer proposed by the Applicant. The Third Qualification deviated from the Applicant’s original offer of settlement.

In addition, the Full Bench held that confidentiality was primarily for the benefit of the Respondent and that there was reason to believe that the Applicant would have wanted to disclose to his colleagues upon his return to work, his dismissal and re-employment. In these circumstances, it could not be said that confidentiality of the settlement was a term that “went without saying”.

As the second and third qualifications proposed new terms that where not for the benefit of the Applicant, the Full Bench held that the Respondent’s purported acceptance of the offer was not effective and there was no binding agreement to settle.

Key takeaways

  • A binding agreement will not be reached unless acceptance is unequivocal, leaving no terms left to be negotiated.
  • A variation to negotiated terms or proposal of an additional term can constitute acceptance provided the variation or additional term is solely for the benefit of the offeror.
  • The communications between the parties are relevant when determining their intention to enter into an in-principle agreement to settle.

New complaints handling processes in the federal anti-discrimination jurisdiction

David Weiler, Associate

The Parliamentary Joint Committee on Human Rights’ enquiry into freedom of speech in Australia did not reach a consensus on any reforms to s18C of the Racial Discrimination Act 1975 (Cth). However it did recommend a range of procedural changes to the Australian Human Rights Commission’s processes for handling complaints, aimed at raising the threshold for complaints and strengthening the powers of the Commission to deal with unmeritorious complaints. Many of these recommendations have now been enacted through amendments to the Australian Human Rights Commission Act 1986 (Cth).

The threshold for complaints

The amendments increase the threshold for complaints by requiring complainants to detail, as fully as practicable, the alleged acts, omissions and practices that form the basis of the alleged unlawful discrimination. The intent of the new requirement is that complaints should contain more than bare allegations of unlawful discrimination and should sufficiently substantiate why the alleged conduct constitutes unlawful discrimination. The higher threshold gives the Commission greater capacity to make an initial assessment of whether the complaint has any merit at the time it is lodged, and to dismiss those complaints that are unmeritorious before the complaints handling process is instituted.

Termination of complaints

Another significant aspect of these amendments is the circumstances in which the Commission is required, or has a discretion, to terminate complaints. The new category of circumstances in which it is mandatory for the Commission to terminate a complaint includes:

  • the complaint is trivial, vexatious, misconceived or lacking in substance;
  • there is no reasonable prospect of the matter being settled by conciliation; or
  • if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination

In addition, the time frame for the discretionary termination of complaints has been reduced from 12 months to 6 months.Where a complaint is terminated, the President must notify the complainants in writing of the termination and of the reasons for the termination, and this notification must include a statement explaining that the Federal Court and the Federal Circuit Court can award costs in proceedings.

Leave of the Court

The amendments have also added a new requirement for leave of the Court to be granted for applications filed in the Federal Court or Federal Circuit Court alleging unlawful discrimination following the termination of complaints in certain circumstances. Leave is not required where the President of the Commission considers the subject matter of the complaint involves an issue of public importance that should be dealt with by the Federal Court or the Federal Circuit Court, or where the complaint was terminated on the basis that there was no reasonable prospect of the matter being settled by conciliation.

Please contact a member of the PCS team if you require assistance in working through these new processes.

“Don’t forget the public” – breadth of non-worker WHS duty

Ben Urry, Associate Director

When reviewing health and safety practices, businesses need to adopt a long-term view of the potential impact on non-workers. A business should not assume that their obligation to protect customers, visitors or members of the public is limited only to the particular point in time when the work was actually being undertaken.

Risks to health and safety may not manifest for days, weeks or even months after the work is performed, and if the work has the requisite causal connection to the creation of the risk, then a business may be exposed to criminally liability.

In a recent decision handed down by the Industrial Relations Court of South Australia, it was held that work, health and safety (“WHS”) provisions in the Work Health and Safety Act 2012 (SA) in relation to a “non-worker” (including the public at large) were not limited to risks in the workplace at the time the work was being undertaken.

In September 2014 a young girl was killed at the Royal Adelaide Show when she was thrown from an amusement ride. The ride had been certified as safe to use (by Safe is Safe Pty Ltd) 12 days prior to the accident.

Safe is Safe and its officer, Mr Hamish Munro (the “Defendants”), were subsequently charged under the Work Health and Safety Act 2012 (SA). The Defendants argued that the obligation to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk only existed while the work was being carried out (ie the period in which the inspection and issuing of the certificate occurred) and did not extend to the consequences or product of the work.

In rejecting these arguments, the Court held that it was the creation of the risk that constituted the offence, with the “risk” in this context simply meaning the possibility of the health and safety of the nominated class of persons being compromised.

The case is a timely reminder to businesses that the mere passage of time since the work was undertaken does not lessen the possibility of liability for any risks created.