Annual Wage Review 2018-2019

Rocio Paradela, Graduate Associate

Minimum wage up by 3% from 1 July 2019

On 30 May 2019, the Fair Work Commission (the “FWC”) handed down the decision in its annual wage review.

From the full pay period on or after 1 July 2019, the national minimum wage will be $740.80 per week (or $19.49 per hour). This represents an increase of $21.60 per week.

Following the decision, minimum wage rates in modern awards will be increased by 3%.

What does this mean for employers?

  • Subject to the requirements of relevant modern awards, enterprise agreements and employment contracts, from 1 July 2019, employers must ensure that their full-time employees are paid at least $740.80 per week (or $19.49 per hour).
  • Employers must be aware of the award or agreement (if any) that applies to their employees and ensure wages are paid pursuant to it, noting that minimum wage rates in modern awards will be increased by 3%.
  • An employer who fails to pay wages in accordance with the national minimum wage order or requirements of a relevant award or agreement will be exposed to liability for breach of the Fair Work Act 2009 (Cth).

 

Embracing a new approach in handling challenging employment grievances, disciplinary matters and terminations

Roxanne Fisch, Senior Associate

People + Culture Strategies Founder and Managing Principal, Joydeep Hor recently gave a thought-provoking and well-received presentation to leading HR professionals on how employers should rethink handling discipline, termination and grievances in the workplace. In taking the audience through ten key guiding principles, HR leaders were provided with a strong foundation to deal with challenging employee relations situations.

The Challenge

Every HR professional can relate to being asked to reflect on the most challenging employment relationship they have had to deal with. In having this scenario at the forefront of their mind, Joydeep tasked the audience with considering what it was that made it difficult and what tools they could have incorporated that might have yielded a different outcome.

Ten Guiding Principles

The ten guiding principles set out by Joydeep were in strong contrast to how a traditional law firm would approach handling challenging employee relations situations. The focus should be shifted from a compliance-based approach, which tends to view these situations in a vacuum, to an approach which considers the whole context and environment in which it occurred. As noted by Joydeep, this is particularly important as these days people are far better informed about their workplace rights then they used to be, and issues are becoming more prevalent earlier in the employment relationship. The conversation, he surmised, needs to be reframed and his guiding principles provide a practical toolkit in being able to do so.

1. Embrace quadrant methodology
Managing people should be undertaken through a wholistic approach. Instead of simply focusing on the commercial aspects of a decision, consideration should be given to each of the four quadrants: commercial; legal; psychology and sociology. It is often these last two quadrants which are overlooked, yet the importance of understanding how the person thinks or feels as well as considering the bigger impact on the organisation can lead to better outcomes in resolving the issue.

2. Embrace the “Kingdom”
Joydeep provided the audience with the powerful analogy of viewing the workplace as a kingdom, where the ruler (employer) is entitled to impose any rules (policies) they want to apply in their kingdom (of course within limits), the ministers (managers) are to ensure the rules are complied with and the ruler is entitled to evict anyone they wish provided they do so in the right way. The implementation of appropriate company policies are important to ensure the kingdom runs smoothly.

3. The importance of substance over process
HR is often viewed as process driven rather than substance. It is important to challenge this perception so that it becomes more about substance and value over process.

4. Grievances: Understand the core of the issue
HR professionals must seek to understand the root of the grievance. Getting better at going beyond what is being said to find out the core of the issue will assist in being able to improve it.

5. Little things matter
In people management issues, it is always necessary to think about how the employer’s actions will make that person feel. Empathy and common decency can go a long way.

6. Explain, don’t convince
In handling challenging performance related situations, the aim is to infuse your language with words that seek to explain why you have come to the view that you have.

7. Honour the promises you make
Employers often make promises to employees, whether it be at induction, by way of company policies (which should be limited wherever possible) or in their values statement. These promises should be followed through with.

8. Assume nothing and take nothing for granted
This principle is particularly relevant in relation to confidentiality. Whilst HR professionals often do things in a certain way because we are often fixated on the legal quadrant, it is worthwhile investing more time in optics management and counter-messaging.

9. Right and wrong have nothing to do with it
In the context of workplace investigations, it is very easy for the investigation to take on a life of its own where the investigation itself becomes a pseudo institution and the employee’s concerns about their job security is thereby intensified. To avoid this, HR professionals should commit to undertaking an investigation quickly, with minimal fuss and disruption and form a view on the balance of probabilities.

10. Specifics around termination
Often the most unrecognisable yet dominant category in termination decisions is based on the aspect of a lack of a cultural fit in the organisation. More energy should be invested in determining an answer to the question, “what does good look like” in the organisation. If employers invest in answering this question, they can then create the infrastructure necessary to put them in the best possible situation in dealing with termination decisions.

In providing these ten guiding principles, Joydeep provided HR professionals with practical advice to implement within their organisations straight away. People + Culture Strategies can assist with the implementation of Joydeep’s powerful people management strategies. Please feel free to contact us if you are interested on (02) 8094 3100.

Ray’s Rage – Managing Bullying and Harassment by a “Star Employee”

Daniel Anstey, Graduate Associate

The recent allegations of bullying against star radio host Ray Hadley, serve as a reminder to employers of the potential dangers posed by inaction towards complaints of bullying by a star employee. Indeed, the greater the status of an employee, the more an organisation stands to lose if allegations of bullying are not dealt with in line with best practice.

The “fresh allegations” which have surfaced this week, refer to alleged events which occurred many years ago, even dating as far back as 1984, showing that these issues require careful management and cannot simply be swept under the rug.

What are the possible consequences of bullying/harassment?

Bullying has become a buzzword in recent times and any claims against a public figure can attract a frenzy of media coverage. This means that some victims may be hesitant in coming forward with claims for fear of unwanted attention on top of what they might already be dealing with.

Conversely, victims may be motivated to go to the media by the desire to enact revenge, extract financial compensation or take the opportunity to have their moment in the spotlight. This can result in damage to the brand and reputation of an organisation, or of any individuals caught up in the situation.

Employers must be wary of the attitude that star employees are worth protecting from these sorts of allegations, as this will benefit no-one in the long term. If exposed, a cover up will damage the brand and reputation of both employee and employer, and an organisation risks seeing valuable employees walk out the door if they feel that fair procedures are not in place.

Workplace bullying can cause lasting physical, mental and psychiatric harm to victims and their close ones. This may also have a flow-on effect to productivity and culture and within an organisation.

Furthermore, if a victim suffers psychiatric or physical harm and sues in tort, the employer may be found vicariously liable, as well as breaching their own non-delegable duty of care not to expose employees to reasonably foreseeable risks of harm. For example, in the case of Sneddon v The Speaker of the Legislative Assembly an employer was held liable to the tune of $438,613, for past and future economic loss arising when a senior manager was found to have bullied an assistant.

So, what can you do?

It is now increasingly important for employers to manage proactively the reputational damage which can accompany allegations of bullying, and not to be seen to be tolerating or turning a blind eye because a particular employee is a well-known or highly successful individual.

Dealing with the issues and discontent resulting from bullying, internally and before they escalate is crucial in avoiding a situation such as the one 2GB is currently facing. The best practice is to have very clear policies prohibiting bullying as well as accessible and confidential procedures for handling complaints and managing investigations.

Employees who believe they are being bullied also may apply to the Fair Work Commission’s anti-bullying jurisdiction for an order to stop the bullying, but it is always preferable for the parties to deal with the issues proactively themselves.

If you require advice on best practice policies and procedures for your organisation, or on bullying and harassment in the workplace please feel free contact People + Culture Strategies on (02) 8094 3100.

Asians with PhDs: Managing Perceptions of “Difference” in the Workplace

Justin Peñafiel, Senior Associate

Have you recently employed any “Asians with PhDs”? Recent political rhetoric suggests it is a new phenomenon to have a diverse workforce, but whether in metropolitan Sydney, or regional Australia with its skilled labour shortages, nothing could be further from the cosmopolitan truth.

However, unlike most political offerings, here are some practical tips for understanding why controversy about equality and diversity never fades away despite years of promoting it, and managing what people feel and think about their personal differences in the workplace, in spite of strategies to support them.

Does discrimination still occur with “equality”?

This article could have easily been another diatribe about anti-discrimination laws and what not to do, but unless they want to Make America Great Again, what manager actively treats anyone differently or unfavourably based on their physical appearance, apparent cultural background, or a whole host of protected attributes under section 351 of the Fair Work Act 2009 (Cth), and other anti-discrimination laws?

It begs the question, if managers do not actively discriminate against certain employees on an unlawful basis, and HR has been promoting equality and diversity for decades, why the ongoing controversy about “Asians with PhDs” and persistent talk of shattering ceilings of the glass, bamboo and/or pink varieties? The ongoing sensitivity suggests that it is useful to apply two steps from what we call of our four-quadrant model – “Sociology” and “Psychology”, or in other words:

  • considering what people may feel and think about policies and procedures to promote outcomes of equality and diversity (or lack thereof); and;
  • considering how the policies might look internally and externally to different audiences?

Applying the PCS People Management Quadrants: The gap between equal opportunity and hidden differences

There’s no better place to start than the beginning of an employment relationship, the recruitment phase. We could have easily commenced this section with, “statistics show that X percentage of Asians with PhDs change their name when applying for jobs”, but it may be more constructive to ask, “how does it look if people feel the need to change their name to apply for a job at our organisation?”, and “what must they be feeling and thinking about our company if they need to change their names to get a job?”.

Changing one’s name on a resumé is easy, but other differences are too difficult or perhaps impossible to hide – gender, pregnancy, ethnicity, even sexuality. According to the law, these points of difference shouldn’t matter, and managers generally do what they can to convey a sense of equality in the workplace. However, employees may still not see or feel a sense of “equality” despite all that you might have done to promote it. Conversely, employers may not see, know or think to ask about inequality that their employees’ sense or feel because of everything that they have done to promote it. Knowledge is power, and hidden differences can reduce it.

What can we do about differences that we cannot see? Auditing culture, policies and procedures

Asking these questions from the People Management Quadrants could ultimately lead to some uncomfortable home truths for your organisation – what must employees be seeing or thinking (about perceived barriers in the workplace), if they feel that they cannot disclose differences that their managers cannot see, but which might affect their experiences at work, for example, family obligations, domestic violence, cultural differences (e.g.: cultural differences with communicating with management), or their sexual orientation? What can we do about it? Misconception can lead to claims which may have no substance, but which aren’t any less painful to investigate or defend.

Enhancing Employee Engagement and Leadership Development, Coaching and HR Executive Education

People + Culture Strategies can assist you with Strategic HR Consulting in a variety of ways, such as performing a “Culture and Effectiveness” audit which combines a series of staff interviews and collection and review of staff data, or a review of your organisation’s people strategy tailored to your organisation’s needs. We also offer Leadership Development, Coaching and HR Executive, to enhance and improve your skills with engaging and managing your diverse workforce.

If you are interested in ways to engage better with your employees, or any of our traditional services with legal advice, investigations and dispute resolution, please feel free to contact People + Culture Strategies on (02) 8094 3100.

Rejecting the “just workplace banter” claim: the broader influence of #MeToo

Daniel McNamara, Graduate Associate

A recent Fair Work Commission (“the Commission”) decision has cited the #MeToo movement, encouraging victims of inappropriate workplace conduct to speak out against their perpetrators, in a situation that involved accusations of racist comments.

In relation to the identified misconduct, the Commission drew an analogy to the #MeToo movement, noting that:

[t]he attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.

Factual Background

  • The Applicant, an employee of StarTrack Express (a subsidiary of Australia Post) was dismissed after making a number of derogatory and racist remarks, including phrases such as “row your canoe back home you f***ing black c**t”, towards co-workers.
  • The Applicant cited the comments as “commonplace and part of general workplace banter” and that he did not consider the remarks to be intended as offensive, but rather “to entertain”.
  • The Applicant alleged that his conduct did not amount to serious misconduct, that the decision to terminate his employment by the Respondent was excessive in light of the circumstances, and that he was not afforded procedural fairness throughout the investigation process.

The Outcome

The Commission praised the Respondent in conducting a “fair, thorough and balanced” investigation into the allegations, finding that the employer demonstrated procedural fairness at all stages of the investigation and that the Respondent had validly dismissed the Applicant.

The Commission noted that the Applicant failed to show any remorse, appearing “to be unable to appreciate that the racial components of his workplace “banter” and swearing was something that is separate and distinguishable from any robust language or verbal jousting that may be used as “part and parcel” of a “knockabout workplace”.

Key takeaways

  • The notion that derogatory and/or racist remarks are merely a form of commonplace workplace banter is clearly rejected in this decision.
  • The decision also shows that the subjective view of the perpetrator that the remarks were not harmful, that no one had complained, and were merely “to entertain” carry very little weight. This aligns with the approach adopted in relation to recent sexual harassment claims.
  • It is a reminder that any investigation into allegations of inappropriate workplace behaviour should be conducted in a manner that is “fair, thorough and balanced”.

The Weinstein Effect: stepping up to the challenge in your workplace

 

Roseanna Smith, Graduate Associate

Following the Weinstein scandal and the highly publicised #MeToo and #TimesUp campaigns, many organisations are asking, what does this mean for my workplace?

It is a fairly accurate observation to make that there has been a rise in workplace sexual harassment complaints since various scandals have been exposed. This isn’t a coincidence. People are now feeling more empowered to call out sexual harassment, and other unacceptable behaviour in the workplace, and to recount experiences that may have occurred some time ago that they feel should be aired publicly.

The conduct that is coming to light in organisations is not necessarily new, although social media has provided new avenues to engage in such behaviour. It is often behaviour that was once accepted as a workplace norm, ignored or even concealed.

In a workplace setting there is enormous diversity of human interactions and relationships, and an organisation cannot control every aspect of its employees conduct in this regard. However, organisations can and must explain and detail what acceptable conduct in their workplace looks like, and need to be clear and unambiguous in their messaging with respect to sexual harassment. In addition, the behavioural standard that organisations set, and an organisation’s reaction to behaviour that falls outside of this standard, must not create a workplace culture that tolerates or perpetrates sexual harassment.

Our observation is that workplace policies and education on workplace harassment are largely inadequate because they tend to stick to the black and white issues. The majority of workplace policies and employee induction sessions only cover the obvious, that is, what is already fairly well known to be right and wrong. Few organisations step up to the challenge of dealing with the more nuanced behaviour or the “grey” areas.

The “grey” areas concern the conduct that, in the extreme, to one person may constitute outright harassment but to another is acceptable behaviour. For example, the banter that occurs in many workplaces, nicknames between co-workers, and the language used around the lunch table are all examples of everyday areas where organisations need to refocus and reassess their approach.

It is the responsibility of an organisation to develop and foster the culture they envision for their workplace. This may mean having somewhat awkward conversations, for example, around initiating and developing romantic relationships with coworkers. There is no doubt that consensual relationships in the workplace exist, as 52% of workers have developed a romantic relationship with a co-worker.1 Recent events in parliamentary circles have raised the question of whether organisations should ban relationships that involve at least the perception of a power imbalance.

Interestingly, as a result of the recent exposure of sexual harassment claims against prominent public figures, more than one in four workers reported that they now less likely to think it is acceptable to engage in romantic relationships with office colleagues.2

The positive duty of an organisation to provide a healthy and safe workplace free from sexual harassment includes a culture that does not ignore information about sexual harassment that is brought forward explicitly by a complainant, or gleaned from gossip in the workplace. Changing the workplace culture around sexual harassment goes further than adopting prescriptive policies, as real difference comes from an organisation’s commitment to change. The consequences of engaging in harassment in the workplace must be feared more than the risk of speaking out. In the current climate, the starting point for organisations is to reassess the way they have handled previous complaints and question why people in their workplace are only starting to come forward now.

Our perceptions around workplace harassment will continue to shift, depending on the changing social and cultural expectations. Organisations need to be at the forefront of this so they are not on the back foot when a harassment claim is lodged. If there is a silver lining to the Weinstein scandal, it is the insight that organisations now have that prevention through culture change is a better option for creating a healthy and safe work environment.

Key takeaways

  • Organisations need to develop and convey a clear and unambiguous set of values based on respect, and reflect this in their policies and procedures.
  • What is unacceptable behaviour in the workplace must be clearly detailed.
  • The processes that allow people to bring to light such conduct and for dealing with complaints must be robust enough to ensure that unacceptable behaviour does not become entrenched or tolerated in the workplace.

Your time is limited: maximum term contracts and the unfair dismissal regime

 

Roseanna Smith, Graduate Associate

Many employers choose the flexibility of maximum term contracts when engaging employees for specific tasks or short-term employment, and assume that their time-limited nature means that they cannot give rise to an unfair dismissal claim. A recent decision by the Full Bench of the Fair Work Commission brings this into question.

A maximum term contract is a contract that states the latest point at which the employment contract is to expire, but it may also provide a right for either party to terminate the employment contract prior to the nominated date with notice. This distinguishes it from a “true” fixed term contract, where neither party has the ability to terminate the employment contract prior to the nominated expiry date.

The Fair Work Act 2009 (Cth) (“FW Act”) requires that an unfair dismissal application be based on a termination of employment at the initiative of the employer. This generally does not include where the employment comes to an end merely through the effluxion of time.

Until recently, the leading authority on maximum term contracts and unfair dismissal was a decision involving an employee who had been employed on successive maximum term contracts over a period of seven years, with an on-going expectation of renewal. The Australian Industrial Relations Commission found that an unfair dismissal claim could not be brought on the basis of the non-renewal of her contract, as the termination was simply due to the effluxion of time, and therefore was not at the initiative of the employer.

In December 2017, the Full Bench of the Fair Work Commission departed from this approach. The case involved an employee who had been employed on a succession of back to back maximum term contracts, with an expectation of renewal, spanning over four years. At the expiration of the employee’s last contract, the employer did not offer him another employment contract due to his alleged poor performance.

The Full Bench determined that the correct approach was to look at the entire employment relationship, rather than simply having regard to the termination of the last of a series of employment contracts.

As a consequence of this approach, an employee may be able to bring an unfair dismissal claim if they were employed on a maximum term contract where the nature of the arrangement suggests on on-going relationship. Where the time-limited contact reflects a genuine agreement between the employer and employee that the employment relationship would not continue after a specified date, then in the absence of any vitiating factors, representations or sham agreement, there is unlikely to be a termination at the initiative of the employer.

A “true” fixed term contract continues to be protected from an unfair dismissal claim at the expiration of the fixed term. But if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time, the factual circumstances need to be examined to determine whether any actions of the employer were the principal contributing factor resulting in the termination of the employment, and therefore could be regarded as being at the initiative of the employer.

Key takeaways

  • Employers should be aware that simply allowing an employment contract to expire does not automatically exclude an unfair dismissal application if the nature of employment relationship creates an expectation of an on-going arrangement.
  • Employers should make clear the manner in which a maximum term contract is being used, and discuss this with the employee to avoid creating any unrealistic expectations.
  • Maximum term contracts should not be used to disguise the true intention of the parties regarding the employment relationship, as this can give rise to the risk of the arrangement being seen as a sham.

 

How do you rate? Dealing with online employee feedback platforms

Daniel McNamara, Graduate Associate

Some employers are grappling with a new phenomenon – the rise of online employee feedback platforms – where individuals can post anonymous ratings and comments about their workplace experiences, along similar lines to rating restaurants, hotels and service providers. Recently, the United Voice union organisation (under the pseudonym “Hospo Voice”), launched a website titled “Rate My Boss”. The website’s stated aim is to “turn the tables” on employment practices in the hospitality industry by enabling individuals to post anonymous ratings and comments on workplaces across Australia.

While it goes without saying that employers should ensure that the terms and conditions on which their employees are engaged comply with legislative standards, and that transparency around employment practices can be beneficial in circumstances involving potential exploitation of vulnerable workers, there are a number of implications that arise from such ratings systems.

A balancing act: implications for employees and employers

One difficulty arising from sites such as “Rate My Boss” is that the accuracy of posts is impossible to determine. Given the anonymity of the published reviews, this content may come from a disgruntled employee, but it could also emanate from a competitor or any other party, with little to no means of verifying their identity. To post an anonymous review about an organisation on “Rate My Boss”, all that is required is an email address or social media profile to create an account. A service such as this may disproportionately harm employers and businesses due to its lack of accountability and fact-checking mechanisms.

It is unlikely that an employer would want to engage publicly through the same median to respond to such comments, for example as a restaurant might do in response to an unfavourable review. However, an employer may want to respond internally to manage how this is perceived within the workplace, and to ensure that its grievance processes are accessible and working effectively so that the risk of externalising complaints is minimised.

An employee who posts unfavourable comments on an online platform such as “Rate My Boss” may be in breach of their employment contract as a duty of loyalty to the employer is implied as a matter of law in all employment contracts. In addition, workplace policies often regulate a range of employee behaviour that can have an impact on the business. Breaching such policies may result in an employee being subject to disciplinary action, and in some circumstances termination of employment may be warranted.

Posts made on “Rate My Boss” may also give rise to defamatory imputations that an employer can seek to pursue. To satisfy the defamation threshold, typically the content must be published, defamatory (i.e. not substantially true), and clearly identifies the employer/any other relevant party. However, corporations are generally excluded from pursuing defamation proceedings. This may prove to be problematic if a statement on “Rate My Boss” targets an organisation and not a “boss”. While alternative avenues may exist for corporations (such as a claim for injurious falsehood), this can be difficult to establish, and giving such claims a further airing through litigation may not be the most appropriate strategy.

Key takeaways

  • With increasing scrutiny of employment practices, employers should ensure that their practices comply with all applicable legislation and industrial instruments.
  • Online employee feedback platforms might serve a useful purpose for exposing exploitation for vulnerable employees, but are not appropriate for more standard working practices.
  • Being cognisant of the culture of a workplace and having clear and accessible grievance procedures can minimise the risk of such postings occurring.

 

Not an exempt employee privacy activity

Therese MacDermott, Consultant

Employers are often fairly complacent about the fact that personal information that they hold regarding their employees, and the use or disclosure of that information, will automatically come within the terms of the employee records exemption. But a recent case decided by the Australian Privacy Commissioner highlights that while information may initially be collected and used for a legitimate purpose, it may subsequently be accessed for a different, improper purpose, and hence risk a breach of the National Privacy Principles (“NPPs“).

The Australian Privacy Commissioner has found that the Commonwealth Bank of Australia (“CBA”) breached the privacy of one of its customers when it improperly disclosed her personal financial information to her former employer (the Commonwealth Bank Mortgage Innovation Agency) (“MIA”) at a time when Fair Work Commission proceedings in relation to the termination of her employment were on foot.

As her former employer, MIA was a business selling CBA financial products. It was an authorised user for the purpose of accessing CBA customers’ financial information through the bank’s customer management software. The CBA contended that the accessing of her accounts by MIA was not in breach of the NPPs as it was for a legitimate business purpose, that is, it was necessary in order to investigate the propriety of her loan applications. The former employee alleged that the principal of MIA accessed her accounts for the purpose of tracking her financial position during the course of the FWC proceedings and hence obtained an advantage in settling her FWC claim.

On this point the CBA was found to have improperly given access to her personal information for a secondary purpose. The CBA were also found to have failed to take reasonable steps to protect her personal information from misuse in continuing to allow MIA access once it knew of the FWC proceedings and of the potential conflict of interest. The Australian Privacy Commissioner observed that “the principal of an external mortgage agency, with whom the complainant is currently involved in a FWC dispute, would not be an appropriate person to conduct such an investigation. “

In terms of a remedy, the Privacy Commissioner was not satisfied that there was a causal connection between the improper accessing of her accounts and the settlement of her FWC claim to justify an award of economic loss. However compensation for non –economic loss in the sum of $10,000 was awarded for the distress caused to the former employee as a consequence of the manner in which the BCA handled her personal information.

Potentially risky situations for employers include where they have the means to access, for example, a former employee’s financial information, and the employer is in a dispute with that individual, but continues to access their information. Another scenario likely to be problematic is where there is a conflict of interest that should preclude an employer from continuing to access such information, but it maintains its right to access such information, or fails to take steps to prevent potential misuse. Finally contractors fall outside the coverage of the employee records exemption, so care must be exercised to ensure that the collection, use, disclosure and granting access to contractors’ personal information is undertaken for a legitimate purpose at all times.

​Dual manslaughter charge for health and safety incident

Benjamin Urry, Associate Director

You may be aware of recent reports of a serious incident that occurred last month in which two construction workers were killed, and which has resulted in their supervisor being charged with two counts of manslaughter.

This incident highlights that businesses, including directors and supervisors, need to be aware that safety incidents can result not only in payments of compensation for victims, but can also result in breaches of health and safety laws (carrying significant financial penalties) or even criminal manslaughter charges with lengthy imprisonment terms.

Fatalities at Eagle Farm Racecourse

On 6 October 2016, two construction workers working at Eagle Farm Racecourse were killed when two concrete slabs surrounding a drainage pit they were working in collapsed. The two workers appeared to have managed to avoid being crushed by the first slab by climbing out of the pit in the only way available to them (being a steel ladder), but unfortunately they were unable to avoid being crushed by the second slab.

Following initial investigations into the incident a director of the company responsible for the workers (with 40 years’ construction experience), who was their supervisor at the time, has been charged with two counts of manslaughter.

Workplace Health and Safety Queensland is continuing to investigate the incident. This investigation may result in further charges being brought against businesses or individuals where there is evidence that they may have breached WHS laws in relation to the incident, however it is too early to tell what may happen.

Proactive reduction in exposure is the key

In our view, being proactive, rather than just hoping that something will not go wrong, clearly is the best strategy in managing or reducing a business’ potential exposure to WHS liability.

Taking proactive steps to reduce potential exposure to WHS liability will not only reduce the potential financial and personal costs associated with a WHS breach, but also create safer and healthier (and more productive) workplaces.

Examples of steps that businesses may take in order to reduce their potential exposure to WHS liability are set out in our previous blog “’Tis the season for no so jolly injuries” (click here). These include updating policies, consulting with contractors, and training officers and workers on their WHS duties.

If you would like further information on how your business can reduce its potential exposure to WHS liability, please contact a member of the PCS Legal Team.