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Work Health and Safety

Returning to Work in a Brave New World

Whilst we are by no means in the clear with respect to COVID-19, Federal and State Governments have confirmed that the raft of expedient measures taken by the majority of Australians, such as social distancing, border closures, home isolation and so forth, has seen an ever decreasing reduction in infection rates to the point that on Monday 11 May, NSW recorded its first day of no new infections since lockdown commenced.

To that end, Government is eager for the economy to “reanimate” and many employers are desperate for their employees to return to work as soon as possible. So, what does the workplace look like after COVID-19 has so drastically changed the industrial landscape? In this client alert, we will be examining the challenges employers face in recalling their employees back to work and the necessary steps they should take to ensure employee and customer safety.

National COVID-19 Safe Workplace Principles and Creating a Safe Workplace

The National Cabinet have agreed upon a set of safe work principles to ensure that all workers, regardless of their occupation or how they are engaged, can enjoy returning to a healthy and safe workplace. These principles are generally concerned with employers, in consultation with employees, conducting an assessment of their unique workplace to identify, understand and quantify risks and to implement and review control measures to address those risks. Depending on the industry, that might include:

  • staggering the employees’ return to work;
  • staggering employees’ schedules and start/finish times;
  • workspace arrangements; and
  • health monitoring, cleaning, and hygiene measures.

For example, in many modern office workplaces, including call centres, through the use of more flexible technology, employers have moved to more communal work practices such as open plan workspaces, ‘hot desking’, ‘brainstorming’ rooms and shared recreation facilities. In those communal work environments, an employer might consider creating static workspaces (rather than hot desking) and stagger work schedules so that half the employees work, for example, a fortnight of Mondays, Wednesdays and Fridays while the other half work a fortnight of Tuesdays and Thursdays before swapping (to alleviate congestion in the office and allow for spaces between desks). Note that to keep the groups of employees isolated from each other to reduce the risk of infection, it is important that employers try to ensure that the different rostered employees remain on the sperate rosters so there is little risk of cross-contamination should an employee fall ill.

Employers might also consider temporarily denying access to shared recreation spaces to ensure that employees can abide by the ‘4 square metre rule’ and staggering employee lunch breaks (if taken in a communal break room) to maintain social distancing. With respect to travelling to and from the workplace, employers might encourage employees to commence and/or leave work earlier or later than normal so as to avoid congestion on public transport.

Of course, not all workplaces look the same and specific measures may need to be taken for different jobs. For example, employees who work in a confined workplace and who have more proximate dealings with customers in particular, ought to wear personal protective equipment and operate a regime whereby all employees attend to washing their hands with soap and water for 25 seconds every hour, on the hour.

Nonetheless, whatever the workplace or industry looks like, some constants will apply. For example, implementing and maintaining hygiene standards, attending to proper cleaning protocols and the monitoring of employee health is vital to maintain a safe workplace. If an employee presents for work and appears unwell, has a cough or sore throat or is displaying flu-like symptoms, they should be sent home immediately and directed not to return to work until they have availed themselves of a COVID-19 test or has been cleared by a medical professional. Preferably, that employee should know not to attend the workplace in the first place and in order to achieve this level of individual responsibility taking among staff, employers ought to consider amending their policies to stipulate clear expectations where an employee is unwell.

For further information, the Safework Australia website https://www.safeworkaustralia.gov.au/ has industry specific resources to assist employers in creating a COVID-19 safe workplace.

What if Employees Don’t Want to Return to Work?

For those employees who have been able to work from home these last couple of months, without the hassle of a commute or adherence to a dress code, and have developed a routine to perform their work whilst simultaneously doing a load of washing, the desire to continue to work from home may be quite strong. In addition to positive feedback from employees, employers have realised that reducing the number of employees at their premises may result in bottom line savings on the costs of commercial rent, cleaning, heating/cooling and other incidental office costs, as well as alleviating congestion in the workplace. These advantages must also be offset against the costs of a more sophisticated IT system to allow employees to work remotely and, as we discussed in our last client alert, the potential for employees to work less efficiently when not directly supervised.

However, what if an employee does not wish to return to the workplace? Employers will need to carefully consider the circumstances for any such resistance on a case by case basis, although need not agree to staff working remotely on a permanent basis so long as the reasons for this are predicated on reasonable business grounds. Obviously, for some employees (such as those that work in hospitality, retail, or logistics) they will have to return to the work premises to perform their work as it cannot be performed remotely but what of the employees who are still be able to perform the inherent duties of their role from a remote location?

In any case, the employer must have established their COVID-19 Safe Plan (as detailed above) before directing employees to return to work as it is obligatory for employers to provide and maintain a safe working environment in order to comply with work health and safety laws. Systems will need to be in place for maintaining effective hygiene, health monitoring and cleaning and employers will need to plan for the possibility of COVID-19 cases in the workplace and the procedures to follow in such an event.

Some employees may also have unique circumstances whereby a return to the workplace puts them at specific risk. For employees who suffer health complications that cause them to have weakened immunity, or those who live with and/or care for elderly relatives that are vulnerable, to require them to return to the workplace – particularly in circumstances that require them to commute via public transport – might create an unacceptable risk for their return at this stage of the pandemic. In these cases, employers will need to carefully consider directing those employees back to the workplace as to do so might be a breach of work, health and safety.

Nonetheless, if employers have taken the appropriate steps to ensure, as best as possible, a COVID-19 Safe workplace, where an employee fails to heed a reasonable direction to return to the workplace, the employer can take disciplinary action against the employee including up to termination of employment.

What are Employers not able to do?

For those of us who have cast a wistful eye towards the return of professional sport in Australia, a small selection of Rugby League players who have put their immediate employment in jeopardy by refusing to accept a flu vaccination, has created an interesting conundrum. At this stage, the Queensland State Government have required that any players entering the State to play Rugby League cannot do so unless they have received up-to-date influenza and pneumococcal vaccinations. So can an employer insist that its employees accept a flu vaccination, despite objections on moral or religious grounds, as a precursor to return to work?

An employer may well strongly encourage its employees to get the flu shot by providing free vaccinations to its employees. After all, whilst the seasonal flu vaccination will not protect against COVID-19, the threat of contracting both simultaneously has been described by health authorities as an extremely negative situation; however, unless the employer is a residential aged care facility, an employee cannot be forced to get a flu vaccination. As for employers who run residential aged care facilities, there are no exemptions for getting vaccinated on personal, cultural or religious grounds; the only valid exemption is for medical reasons.

In addition, most members of our community will be familiar with the push from the Federal Government urging Australians to download the COVIDSafe application on their mobile phones. Essentially, this app allows users to upload medical data if they have, at any point, tested positive for COVID-19 and, when their phones (which are presumably on their person) come into range of another person with the COVIDSafe app, a contact tracing record is created to allow health authorities to ‘follow the path’ of the virus in the event of another spike in infections. Despite it being voluntary to download and use the application, many employers will want their employees to download COVIDSafe to help protect the health and safety of their workforce, customers/clients and the wider community. Whilst an employer might actively encourage its employees to download and use the new app, it cannot force them to do so.

This means that while an employer may encourage their employees to download or use COVIDSafe, they cannot direct employees (or any other person) to download or use COVIDSafe, either on a personal mobile device or on a mobile device provided by the employer for business use and any pressure to do so, whether by positive obligation, or by adverse consequences, is unlawful.

We are Here to Help

Our team is currently engaged in a staggered return to the office and is otherwise working remotely but still servicing clients as usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue arising from the COVID-19 crisis, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

A Practical Guide to Managing Remote Employees During COVID-19

Unless you are an essential worker, just about all businesses have employees working from home. For many employers all their employees are now working remotely. In this client alert, we will discuss firstly the challenges posed by remote work and in addition, the very real opportunities it creates.

As we will be focussed on the challenges imposed by remote work and in particular when working from home, we will also look at some of the mechanism employers can adopt to address these challenges. If an employer has policies regarding working from home, it is important those policies are reviewed to ensure they are still practical and achievable in the current climate. It would be best to be able to ensure that all employees are working in a safe, secure and optimal location, however this is just not practical when so many employees have no choice but to work from home. It would also be ideal to ensure that employees are actually working when they are supposed to be working, but again parents with young or school aged children may now find this challenging. These are some of the issues we will examine.

Work Location and Home Set-up

It is trite to say that despite the fact that employees are not working in the employer’s premises, whilst working, the employer still has work health and safety obligations to its employees. To the extent reasonable, employers should make proper enquiries of their employees as to where they are working within their homes, whether that is safe and whether they have the necessary equipment to safeguard their health and wellbeing. If employees are expected to sit in front of computers or on the phone for long periods, the employer should be ensuring to the extent possible that the employee has a suitable chair and desk for this purpose.

If an employer has the requisite resources available, it may wish to assist employees by purchasing the necessary equipment for setting up an office at home. In usual circumstances, an employer that asks an employee to work from home, will normally bear the additional cost to the employee of doing so. In the current climate, it is possible to agree with your employee that they will bear this additional cost in return for the ability to continue working. The alternative being that other cost saving measures are put in place such as reduced hours, redundancies, stand down and the like.

When working from the employer’s premises, employees typically take an unpaid break for lunch and, depending on the industry, one or two paid or unpaid rest breaks during the course of the day. Where employees are working from home, they may not consider it as necessary to step away from the ‘virtual office’ and take a break. Where practical, employers should encourage employees, where they would ordinarily step out of the employer’s premises for a break, to still take that break to get some food and exercise, maybe take a walk around the block, and return to the ‘virtual office’ refreshed and reenergised.

Lack of Supervision and Oversight

A common issue with remote work is the inability for managers to have a clear understanding of exactly what employees are doing whilst working. This raises a challenge but also a fantastic opportunity. It will become quickly evident what type of employees are currently employed and how the culture of the business has either facilitated the practice of only working when watched or whether the employees are self motivated. It stands to reason that in circumstances where employees are working remotely, it is really important that they be very self motivated. This is an opportunity to foster such a culture. In order to do so, managers need to set clear and structured objectives and deadlines, and then inform employees of their expectations. It is important to have regular check in meetings in a structured manner. In this regard, we suggest that a team meeting be scheduled for the same time every day or twice a day (once in the morning and once at the end of the day). This is the forum where the team gets together virtually to discuss the days work, priorities and whether anyone needs help. It is also an opportunity for team members to share ideas and consult on issues. We suggest that individual virtual meetings then also occur once a day at a set time between the manager and their direct report. This will allow managers to ensure they know what the team members are doing and be able to properly offer assistance and support. It will also allow team members to get on with the work during the day with some confidence they are doing the work appropriately.

Access to Information and Collaboration

One of the biggest challenges of remote work is the relative difficulty in sharing information with colleagues as compared to talking with them when they sit next to you in an office. We suggest that if possible, employers try to recreate this by using technology which allows for instantaneous messaging. This means employees can quickly and easily send out a message to the team or individual team member when they want to ask something or can respond to another team member request or inquiry. For employers who have invested in electronically storing information, which is easily accessible, now is the time when that will pay off. For employers who have not been able to do so, and still rely on hardcopy information, this will be a useful time to assess whether that aspect of the business can be better managed. There are a number of technological solutions (including many solutions which form part of Microsoft Office) to sharing information and store information that can be made available to all team members.

Keeping Track of Workflow

I never thought I would be an advocate of team task lists. However, remote working makes this ability an essential. It is important for managers to be able to track what work is being performed and whether employees are on task. It is also useful for team members to have some visibility on what others are doing, when they are not as easily able to just ask the employees themselves. Again, the use of team applications which allow team members to upload task for all to see can be a very useful tool.

An article in the Harvard Business Review states that research has shown that the lack of “mutual knowledge” among remote workers can often lead to co-workers not being willing to give their colleagues the benefit of the doubt in difficult situations, and make interpersonal communications more fraught.

Social Isolation and Mental Wellbeing

There is ample research which shows that importance of social interaction to our mental health and general wellbeing. For most of us this interaction is gained in large part by our involvement in work and our relationships with work colleagues. One of the most direct consequences of working from home for many people is the increased social isolation coupled with loneliness this engenders. This is exacerbated now by the forced social isolation imposed by the government, which has restricted our ability to interact outside of work. This sense of social isolation can also directly impact on employees’ commitment to work and how committed they feel to the organisation and their role. It will be interesting to see the number of employees who resign from their current employment at the conclusion of the current pandemic. I am of the view that this number will be greater than what would be average for the organisation because of this very factor. It is therefore even more important now to ensure employees remain connected and embrace the organisation and its goals. This can only be done if the organisation and the individual employees’ managers stay connected and put in place real and ongoing initiatives to foster strong working relationships. This does not have to be solely work related. Some innovated organisations are organising social events via virtual mechanisms, such as a daily game or quiz, hosted by a different team member each day, as part of the morning meeting and end of week social drinks via videoconferencing platforms.

Avoiding Distractions at Home

It goes without say that most employers who are paying their employees to work from home, expect the employees to actually be working. How does this work in circumstances where, given the current crisis, it is likely the rest of the family (including young or school aged kids) are also at home? If the employee is also required to care for children or home school, how are they also going to be able to work? These are matters that must be dealt with on a case by case basis. Ideally, employees should have dedicated childcare and a dedicated workspace without distraction in order to properly focus on work. We consider that it is reasonable in the current climate that employers modify their work expectations to accommodate these realities.

However, if it is clear that the employee is actually unable to effectively work from home, then this is something that should be addressed head on. It is preferable to allow the employee to take leave whether with or without pay, or if you are able to stand them down under the JobKeeper regime, then to continue to have a significantly underperforming employee. This can only lead to resentment by colleagues and stress for the employee themselves.

Even though working from home is challenging and can make managing poor performance more difficult, it should not be an excuse to allow a poorly performing employee to continue to perform badly. If proper support structures have been established, and there is appropriate management oversight (even if it is remote), then poor performance should be addressed when it occurs. This will be made far easier, and less likely if managers are checking in daily with their team, and there are regular team meetings as discussed above.

We are Here to Help

We are currently working remotely but still servicing clients as usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue during the COVID-19 crisis, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

COVID-19: HOW TO DEAL WITH YOUR EMPLOYEES – A PRACTICAL GUIDE TO THE LAW

The global outbreak of COVID-19 has and will continue to have a material impact on businesses worldwide and in Australia.

The COVID-19 landscape and both the national and state government updates are regularly evolving and changing. As a result, many employers are now faced with the challenge of understanding their rights and obligations in managing employees during this health pandemic and in circumstances where their business has significantly reduced and/or the business has shutdown.

In this regard, we have had a number of clients contact us over this period seeking advice to understand their rights and obligations during the COVID-19 pandemic. There have also been a number of Fair Work updates released in order to deal with COVID-19 and changing employment circumstances.

It is crucial businesses are complying with national and state government directions in relation to COVID-19 and employers are reminded to keep in mind employee safety, employee rights and leave entitlements to ensure the best outcome for everyone involved.

Accordingly, in this client alert we cover an employer’s rights and obligations regarding shutdown, some of the changes being implemented by the Fair Work Commission and the government’s newly introduced stimulus package.

How does an employer lawfully reduce an employee’s hours of work and/or remuneration?

Outside of the specific changes to the modern award regime (mentioned below), in all other circumstances, an employer cannot unilaterally reduce an employee’s hours of work or remuneration. Any reduction of an employee’s hours or remuneration should be done by agreement and the agreement should be reflected in writing and signed by the parties.

Can an employer stand down its work force and what does this mean for your employees?

Section 524 of the Fair Work Act 2009 (Cth) (“FWA”) provides that an employer may stand down an employee during a period in which the employee cannot usefully be employed because of, among other things, a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

In these circumstances, the question then becomes whether COVID-19 is a lawful cause beyond an employer’s control. In this regard, section 524 of the FWA cannot usually be relied on in circumstances where there is merely a downturn of business or if a building is inaccessible. As such, the COIVD-19 impact on businesses and the question as to whether businesses can lawfully stand down their employees during the pandemic crisis remains untested by law.

However, it is important to understand there is a differentiation between businesses who have been affected by COVID-19, and as a result has seen a significant reduction in business (such as the retail industry) compared to where the government has sanctioned a lockdown or closure of certain business (such as hospitality, beauty premises, fitness centres and other sectors of the economy now restricted from trading). The latter would be considered a very clear example of circumstances beyond an employer’s control under section 524 of the FWA. However, the former may not qualify for such treatment. We note that the unions are challenging the shutdown by Qantas for this reason. In essence, where a business has decided to close stores and cease trading because of a significant downturn in business, this may not be sufficient to warrant a shut down sanctioned by section 524 of the FWA. Employers should tread carefully in this regard, and to the extent possible, provide as much notice of a shut down as possible and obtain employee consent.

Does an employer need to pay an employee during a stand down period?

In usual circumstances when an employer does not require work to be performed by a permanent employee, subject to an employee’s agreement, an employer will be required to pay the employee for the period.

However, in circumstances where an employer has a stoppage of work and stands down employees in accordance with Section 524 of the FWA, an employer is not required to make payment of ordinary remuneration to those employees for the period of the stand down. Notwithstanding this, employers must accrue for leave entitlements as per usual.

In addition, employees that are stood down by their employer under the FWA are still entitled to be paid for public holidays that fall during the stand down period. This is only if the public holiday falls on a day that the employee would have usually worked. It is important to keep this in mind with the upcoming Easter public holidays.

Can an employee ask to use annual leave during a stand down period?

A stand down is a drastic step for any workforce, and it deprives employees of an income for an unspecified period. Accordingly, inviting employees to access their accrued leave or long service leave entitlements as an alternative is a great benefit to both the employee and employer. For the employee, it allows them to continue to receive an income, and for the employer, it reduces the employer’s leave liability.

If an employee requests to use their leave entitlements, employers must not unreasonably refuse an employee’s request to take paid annual leave. What is considered ‘reasonable’ will depend on the personal circumstances of each employee and the employer’s business needs. In these circumstances, it is best if the employer and employee come to a mutual agreement in this regard.

Notably, an employer may refuse paid annual leave to an employee on reasonable business grounds. In this regard, if a business is financially unable to pay annual leave due to the downturn in business and financial impact COVID-19 has had on the business, this may be considered a reasonable business ground.

Changes to Modern Awards relating to COVID-19

The Fair Work Commission has announced proposed changes in relation to modern awards in response to the current and unique COVID-19 pandemic crisis.

Notably, on 1 April 2020, the Fair Work Commission (“FWC”) announced an intention to vary 103 modern awards across various industries and occupations. These variations will be in place until 30 June 2020 (unless extended). Accordingly, businesses should check if they are affected by the changes proposed.

The proposed changes include the following:

· Provide all employees who are required to self- isolate the ability to access two weeks of unpaid leave. This was a response to a concerns that if an employee was required to self-isolate because they have been exposed to someone infected with COVID-19, they did not have protection in relation to unfair dismissal and were not able to use their personal leave as they themselves were not unwell. It will not be necessary for employees in these circumstances to exhaust their paid leave entitlements before accessing the unpaid pandemic leave.

· Provide additional flexibility in respect of annual leave by allowing an employer and employee to agree for the employee to take up to twice as much annual leave at half the rate of pay. Notably, this provision has already been introduced in the Hospitality Award 2010, the Restaurant Award 2010 and Clerks – Private Sector Award 2010 (discussed further below).

In addition to the above, the FWC have made additional changes specific to the Hospitality Award 2010, Restaurant Award 2010 and Clerks – Private Sector Award 2010 as a result of the major impact COVID-19 has had on these industries.

In order to assist our clients, we have outlined the changes below:

Hospitality Award 2010

On 24 March 2020, the FWC made a determination to provide additional flexibility for employers under the Hospitality Award 2010 during the COVID-19 pandemic. These include:

Changes in duties:

Employers can tell their employees to do any tasks that they have the competency and skill to perform, even if those tasks are not in their usual classification or normal work. However, the task must be safe, and the employee must have at least the appropriate licence and/or qualifications to perform the task.

Hours of work for full-time and part-time employees:

Employers can now direct the reduction of permanent employees’ hours of work to an average of:

· Between 22.8 and 38 ordinary hours each week for full-time employees; and

· Between 60% and 100% of the guaranteed hours per week or over the roster cycle for part-time employees.

If employers want to reduce an employee’s hours, they need to discuss the changes with the employee, ensuring they follow the Award prescribed consultation rules about changes to rosters or hours of work and provide as much notice as practicable. It should be noted that employees will continue to accrue leave entitlements based on their ordinary hours before the employer reduced the hours.

Annual leave:

An employer can direct an employee to take annual leave in accordance with the updated award. Employers now need only to provide the employee at least 24 hours’ notice (rather than 4 weeks) and consider the employee’s personal situation. In addition, employees can take twice as much annual leave at half pay by agreement.

Restaurant Award 2010

On 31 March 2020, the FWC introduced the same changes as the Hospitality Award 2010 above to the Restaurant Award.

In addition to these changes, the FWC also provided that if a business is closing down for a period, an employer can direct their employees to take annual leave in accordance with the new changes by giving the employee at least 1 weeks’ notice (or any shorter period of notice which is agreed). If an employee does not have enough paid leave to cover the whole period of shut down, the employer can direct the employee to take unpaid leave for the remainder of the close down. The period of unpaid leave would continue to count as service for entitlements.

Clerks- Private Sector Award 2010

On 28 March 2020, the FWC introduced temporary flexibility provisions during the coronavirus outbreak for the Clerks – Private Sector Award 2010. These changes include:

Changes in duties:

Employers can tell their employees to do any tasks that they have the competency and skill to perform, even if those tasks are not in their usual classification or normal work. However, the task must be safe, and the employee must have at least the appropriate licence and/or qualifications to perform the task.

Minimum Engagement:

Part-time employees who have agreed with their employer to work from home can have their minimum engagement reduced from 3 hours per shift to 2 hours per shift. Casual employees who have agreed with their employer to work from home must be paid for a minimum of 2 hours’ work per shift (rather than 3 hours per shift).

Span of hours:

Employees who have agreed with their employer to work from home can make an agreement with their employer to change their span of hours to allow them to work between 6 am and 11 pm Monday to Friday, and 7 am and 12:30 pm Saturday. Employers do not need to agree with a majority of their employees to make these changes.

Hours of work for full-time and part-time employees:

Employers can temporarily reduce permanent employees’ hours of work to not less than 75% of their full-time hours or agree part-time hours immediately prior to the reduction. This may be applicable to the whole business or a section of the business. If an employer wants to reduce their employees’ hours, the employees will need to vote in favour of the reduction of hours. At least 75% of the full-time and part-time employees in the business or section of the business must approve the temporary reduction. There is a specific provision contained in the award which outlines the steps an employer must take to ensure the vote is considered ‘valid’.

Notwithstanding the above, an employer and employee can also individually agree in writing to reduce an employee’s hours.

In addition, an employee who has had their hours reduced can ask their employer for permission to find more work with another employer and/or access training, professional development and study leave through their employer. In this regard, an employer cannot unreasonably refuse an employee’s request to find alternative work and must consider all reasonable requests regarding training, professional development or study leave.

Employees on reduced hours under the changes will continue to accrue leave entitlements based on their ordinary hours of work prior to the reduced hours.

Annual leave and close down of business:

Employers can direct an employee to take annual leave by giving their employees 1 weeks’ notice (or any shorter period of notice that is agreed).

If the business is closing down for a period because of COVID-19 and an employee does not have enough paid annual leave to cover the whole period, the employer can direct the employee to take unpaid leave. The period of unpaid leave counts as service for entitlement purposes.

However, if the business is not closing, the employer can only direct an employee to take annual leave if the employee still has at least 2 weeks of annual leave left after the direction and the employer consider the employee’s personal situation. Employees can take up to twice as much annual leave at a proportionally reduced rate if their employer agrees.

Government stimulus package

On 30 March 2020, the Federal government announced the intention to pass legislation to introduce wage subsidies for businesses significantly affected by COVID-10, known as the ‘JobKeeper stimulus package’. The stimulus package is designed to preserve jobs and alleviate financial pressure on businesses in Australia.

In this regard, the JobKeeper payment is paid to employers by the Australian Taxation Office (ATO) who then provide the payment to eligible employees. The payment will be in the sum of $1,500 per fortnight (before tax).

In this regard, if the employee is employed, their prevailing wage or salary continues to apply and the JobKeeper subsidy serves as a supplement.

However, if the eligible employee has been stood down or re-engaged post 1 March 2020, the employer must pay, at a minimum $1,500 per fortnight, before tax. Superannuation contribution in these circumstances is discretionary.

The eligibility criteria for a business to apply to the stimulus package includes:

• turnover of less than $1 billion, which must have fallen by more than 30 per cent (of at least a month); or

• business has a turnover of $1 billion or more and turnover has fallen by more than 50 per cent (of at least a month); and

• the business is not subject to the Major Bank Levy.

The eligibility criteria for employees to benefit from the stimulus package includes:

• currently employed by the eligible employer (including those stood down or re-hired);

• employed by the employer at 1 March 2020 (or rehired);

• Available for full-time, part-time, or long-term casuals (a casual employed on a regular basis for longer than 12 months as at 1 March 2020);

• are at least 16 years of age; and

• Australian citizen, the holder of a permanent visa, a Protected Special Category Visa Holder, a non-protected Special Category Visa Holder who has been residing continually in Australia for 10 years or more, or a Special Category (Subclass 444) Visa Holder.

The JobKeeper subsidy will be available for 6 months unless extended by the federal government. If your business is interested in the JobKeeper stimulus package, you can register your interest on the ATO website.

We are currently working remotely but still servicing clients as per usual including, with the aid of technology, via virtual meetings and conference calls. If you require further information in relation to any aspect of this alert or assistance in dealing with an employment law related issue during the COVID-19 crisis, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Coronavirus and the Workplace – A Timely Update

Earlier this year we published a client alert to provide some general advice to employers in dealing with employees’ leave entitlements in light of COVID-19. That was on 21 February and since then, the COVID-19 landscape seems to be changing on an almost hourly basis.

On 12 March the World Health Organisation declared COVID-19 to be a global pandemic and on 15 March, the Federal Government issued the direction that all persons arriving into Australia must self-isolate for 14 days otherwise they will be committing an offence under the various pieces of State Public Health legislation and will be subject to significant fines. Furthermore, the Federal Government has mandated that everyone practice ‘social distancing’ and has banned gatherings of over 100 persons indoors and over 500 persons outdoors. As of yesterday, the Federal Government has also shut the borders to anyone who is not a citizen or permanent resident.

Our clients are rightfully concerned about the impact these measures will have on their businesses and, moreover, how to deal with their workforce following the inevitable downturn of business. In this article we expand on that initial advice to address some of those key current concerns.

Overseas Travel / Recreational Cruising

Employers have a duty under work, health and safety laws to use their best endeavours to maintain a safe work environment for workers and customers alike. Travel or overseas travel, whether by air or sea, now presents an unacceptable risk to health and safety until further notice. Whilst employers should not be approving annual leave requests for employees at this time, if employees take pre-approved annual leave and travel overseas, employers will have no choice but to issue a direction to those employees that they will not be permitted to return to the workplace until undergoing a period of mandatory self-isolation for 14 days, before being cleared to return to work by a qualified medical professional per the Federal Government’s “Direction”.

Employees subject to the Direction will only be entitled, if applicable, to take annual leave or long service leave where such leave is available. Personal leave will not be payable to employees in mandatory quarantine as a result of recreational travel overseas except if the employee provides a medical certificate during this period.

Forced Self-Isolation of Employees

In the event that an employee suspects a possible COVID-19 infection (e.g. attends a GP for testing), the employer will have no choice in such circumstances other than to require the employee to self-isolate. Where the employer requires an employee to self-isolate on the basis that to continue allowing them to attend the workplace presents an unacceptable risk to others, the employer will not be obliged to pay the employee their usual remuneration benefits. Self-isolation must continue until cleared by a medical professional.

In such circumstances, however, employers should consult with employees, on an individual and needs basis, to reduce the financial impacts of any forced self-isolation period. This will include consultation with employees as to the use of their paid personal leave, paid annual or long service leave entitlements (if available) or taking unpaid leave.

Modifications to Work Arrangements

If employers are experiencing significant financial hardship as a result of a downturn in business, in order to safeguard the business and the ongoing employment of its employees, employers may

choose to consult with employees about temporary alterations to working conditions, which may include:

· the short-term elimination of casual roles;

· a reduction in working hours to manage economic imperatives and overcome quiet trading periods; or

· temporary closure or stand down of employees.

It should be noted that, in the event an employer opts to make employees’ roles redundant as a result of a downturn in business, redundancies should be made in accordance with requirements under the National Employment Standards and any relevant modern award or enterprise agreement provisions.

With respect to stand down or work stoppages, the Fair Work Act 2009 (Cth) prescribes that an employer may stand down employees where they cannot be usefully employed/engaged for a stoppage of work for any cause which the employer cannot reasonably be held responsible. It should be noted that it is untested at law as to whether unsustainable downturn of business and productivity due to the COVID-19 pandemic qualifies as a ‘stoppage of work’ for the purposes of the Act, exempting an employer from its obligation to pay its employees – however, it is at least arguable. We note, however, the stand down provisions in the Act are not intended for indefinite periods of business closure, or a circumstance where the business cannot generally meet its financial obligations as and when they fall due.

In all circumstances where a stand down is being implemented, employers should discuss with affected employees, among other things, the nature of any workplace changes, the likely effect on employees and possible measures to avoid or reduce the adverse effects of the changes. In addition, employers should invite employees to give their views on the proposed workplace changes so that appropriate outcomes can be reached.

Working from Home Arrangements

Where possible, employers should actively encourage their employees to work from home given the work health and safety laws that apply. In such circumstances, however, some guiding principles ought to be followed, such as:

· ensuring a safe work environment (e.g. use of a supportive chair, free of trip and spill hazards etc);

· ensuring a quiet work environment (e.g. insulating against noise from pets or other residents);

· ensuring a reliable internet connection;

· instituting a regular contact plan with colleagues and management;

· adherence to normal hours of work;

· separation from distractions as best as possible (e.g. putting in place other measures to care and cater for children whilst working from home); and

· remaining collegiate (e.g. reaching out to colleagues on a regular basis to maintain a degree of workplace normalcy.

School Closures

In the event of school closures, whereby employees are unable to attend for work due to the care of a child, such absence will be treated as unpaid leave except where the child is unwell (e.g. evidenced with a medical certificate). Employers may permit the use of accrued annual leave and long service leave entitlements during any period of school closures. Again, this should be decided after

consultation with the affected employee(s). If the employee is able to work from home, the employee should be allowed to do so.

Way Forward for Employers

No doubt, the fear and alarm from the COVID-19 pandemic is causing a significant deleterious impact on employers which, in turn, is creating further fear and alarm for employees with respect to their immediate job security. Our experience is that employers are genuinely trying to take care of their employees whilst remaining sustainable and operational over the forecast next 6 months.

Ultimately, during this COVID-19 pandemic, an employer’s policy should be of collaboration and consultation with affected employees. Where such a policy fails to bear fruit, we recommend legal advice be sought as to the alternative options available.

This alert is not intended to constitute, and should not be treated as, legal advice.

Managing the End of Year Christmas Party – and The Aftermath Pt2

Oh my gosh – that could not have happened! We hope this is not something the business is saying after the end of year celebrations. Unfortunately, all too often a form of this reaction is all too common. In our last article, we looked at various control measures an employer can put in place to minimise the risk of inappropriate behaviour of employees at end of year or Christmas events which, in turn, minimise an employer’s exposure to subsequent legal claims and possible litigation.  In this, our Part 2, we look at management of the aftermath of the event and what practical steps can be taken to minimise an employer’s exposure where an incident has occurred.

Quite often, incidents occur when the employer-controlled event is over.  At the conclusion of the event at the controlled venue, employees will often continue the festivities at other venues where they can become quite intoxicated and unsavoury incidents result.  In our previous article we gave some guidance on the steps that responsible employers should take to minimise their risk for incidents to occur at the company organised event. As it is often tempting for employees who are enjoying themselves to ‘kick on’, employers should also ensure the policy is broad enough to cover conduct that may bring the Company into disrepute even if it occurs outside of work, or work events. In addition, employees should be encouraged to leave the venue for home once the event is over. Or, if a more carrot than stick approach is favoured, providing the employees cab vouchers to ensure they have a safe means of transport home, can be an enticement to depart before an unsavoury incident occurs.

In the event that a complaint or inappropriate workplace matter is raised about alleged misconduct at a work Christmas event, it is of vital importance that responsive action is taken quickly by employers. Leaving it to mid-January to start an investigation or take action is often too late and lacks the procedural fairness required to be given to an employee. Such measure that ought to be considered, depending on the sensitivity of the issue, include:

  1. providing counselling and support services to the complainant;
  2. keeping the complainant informed as to the steps being taken to respond to the matter;
  3. cooperating with Police and notifying the relevant safety regulators (if warranted);
  4. investigating the matter fully either internally or via a third-party investigation service;
  5. notifying the employee against whom an allegation has been made and requesting their response; and
  6. suspending the accused employee until all the facts have been gathered and a course of action has been decided upon.

In approaching these matters, practical strategies employers should otherwise bear in mind when responding to workplace complaints include:

  1. avoid delaying the response time to allegations;
  2. never assume an allegation is frivolous or vexatious without making inquiries;
  3. consider all the evidence and then determine an appropriate disciplinary response;
  4. document clearly and comprehensively your records at each step of the response process;
  5. provide employees with counselling or an EAP services provider; and
  6. communicate effectively and appropriate when dealing with sensitive workplace matters.

It is also appropriate to have a clear social media policy in place as photographs or video taken ‘in the moment’ and posted to online social media platforms can embarrass or damage the reputation of employees and the employer alike.  It is advisable that employers implement a policy that no images or video from the party are to be posted online by anyone other than the employer.

Finally, whilst inappropriate workplace conduct should be dealt with and punished accordingly, employers need to ask themselves whether the punishment fits the crime. It is therefore not only relevant to act in circumstances where a complaint of inappropriate behaviour is received, but to ensure the ensuing response is proportionate, fair and reasonable.

A common occurrence after the workplace Christmas party can be employees calling in sick the next day.

While employees are entitled to take sick leave if they are not fit for work because of a personal illness or injury, over-indulging to the point where they are unable to attend for work the next day may be a valid reason for disciplinary action.

In Avril Chapman v Tassal Group Limited T/A Tassal Operations Pty Ltd [2017] FWC 4630, Ms Chapman was dismissed after leaving a voicemail for her employer admitting she had over-indulged at the Christmas party and was subsequently unfit for work the following day.

The Commission found that there was a valid reason for dismissal and held that Ms Chapman chose to ‘over-indulge’ the day before she was due at work to such an extent as to be unable to fulfil her obligations to attend for work the next day. However, the Commission ultimately held that the dismissal was unfair considering that this was the first time Ms Chapman had conducted herself in this manner during her 5 years of service with the employer.

We recommend any employer wishing to obtain advice in relation to an incident or complaint arising from an end of year event or Christmas party, takes appropriate and prompt steps to seek legal advice and assistance.

As this article will be our last publication for 2019 and we will resume our alerts from February 2020, we wish all of our clients and readers a wonderful Christmas/Holiday period and a happy New Year!

We trust that, within reasonable parameters, this season of Christmas and end of year functions will be well attended and thoroughly enjoyed!

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

This alert is not intended to constitute, and should not be treated as, legal advice

Managing the End of Year Christmas Party – and the Aftermath

A quick Google search for career ending moves at the work Christmas Party may be an amusing exercise. However, at this time of the year it serves as a timely and educative reminder to both employers and employees that poor management, planning and behaviour can make the annual Christmas festivities, and their aftermath, a very sobering experience indeed.  In our experience these events are notorious for being a potential breeding ground for inappropriate workplace behaviour and may put employers at risk of litigious actions such as sexual harassment, bullying, discrimination and unfair dismissal claims.

An employer owes an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. Any workplace Christmas or end of year event will be considered the “workplace” and the employer will be liable for any inappropriate or unlawful behaviour that occurs, if they have not taken all reasonable steps to prevent such conduct. In the context of work Christmas parties, subtler risks can often be overlooked by employers such as the service of alcohol, at an employer’s expense, and the possibility of illegal drug taking and, in some circumstances, sexual misconduct amongst staff.

Furthermore, the meaning of a “workplace” in this context has been extended, through judicial reasoning, to include not only a principal place of business, but also social gatherings at bars, restaurant or other public venues at which organised interactions amongst staff occur.

It is therefore imperative for employers to educate staff as to what constitutes acceptable behaviour, and what kinds of conduct may give rise to disciplinary action. To this end, it is important that employers implement control measures, so their staff understand what behaviours are acceptable in the context of an event organised by the company, even if it is not on work premises or during ordinary business hours.

Examples of recommended control measures include:

  1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and in particular before the work Christmas party;
  2. consulting with staff in relation to your expectations of their behaviour at work Christmas parties;
  3. providing training to employees on their obligations under various legislation, including in respect of work health and safety; and
  4. providing access to counselling and an EAP services provider.

At the event itself, particularly where alcohol is being served, an employer can take steps to support their duty to prevent the risk of injury by:

  1. limiting the amount of alcohol supplied;
  2. preventing employees from ‘self-serving’ by appointing suitably qualified third-party officers to serve alcohol (e.g. bar service attendants with RSA’s);
  3. commencing and concluding the event earlier in the evening; and
  4. ensuring adequate security and safety measures are in place at the venue.

Careful planning, management and control of venue are vital in mitigating an employer against the risks of litigation, for example, for unfair dismissal.  In the recent decision of Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444, one employee’s termination was upheld while another was reinstated after a physical altercation at a Christmas event. The employees believed they were at a ‘pyjama night’ (an event organised by BHP mineworkers to mark new rosters) and were thus not attending a “workplace” function.  Nonetheless, there were some 60 employees of the company, including family members, attending the function, allowing the Commission to conclude that the event was sufficiently work related as to be covered by BHP’s code of business conduct and charter values.

Uncontrolled and excessive consumption of alcohol was the principal driver in causing the altercation where an uninvited supervisor decided to belatedly attend the event and was attacked by two employees, one of whom punched the supervisor.  The Commission upheld the termination of the employee who punched the supervisor but reinstated the other.  Despite the conduct of both employees running counter to BHP’s conduct policies, the event was poorly managed and controlled by BHP and they were thus exposed to unfair dismissal litigation with mixed results.

To further highlight the different outcomes that can arise based on the planning, management and control exercised by an employer (or lack thereof), it is worthwhile to compare Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 and Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118. 

In Keenan a drunken employee was dismissed for verbally abusing his boss and sexually harassing a fellow colleague. Despite the employee being warned that the usual workplace code of conduct would apply at the Christmas party, the Commission still found that the employee’s dismissal was unfair.  In Vai, an employee was dismissed for misbehaviour at a work Christmas party at which the employer also supplied free alcohol. In this matter, the employee threw a full glass of beer towards other employees. 

While the former matter appeared more serious, the Commission found that the termination of Mr Keenan’s employment was unfair because employees were able to serve themselves alcohol and no one was given the task of supervising the function whereas Mr Vai’s termination was upheld because the work function was at a hotel where the serving of alcohol was controlled and where there were senior staff present to supervise.

Whilst work functions are a great opportunity to have fun with colleagues, our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable has been done to ensure all employees are safe and without risk of being subjected to offensive behaviour.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

This alert is not intended to constitute, and should not be treated as, legal advice.

WORK HEALTH AND SAFETY FOR LABOUR HIRE

Labour hire is a valuable and commercially necessary engagement model for workers, particularly for specific industries such as construction, warehousing, retail and mining. These industries usually prefer labour hire as they are subject to fluctuations in workloads due to seasonal demands and additional or delayed projects.

Even though labour hire has many benefits for the host employer and the labour hire worker, it has been the subject of much controversy over the past few years. This has been as a result of the poor treatment and pay of labour hire workers and the undefined responsibilities between the host employer and the labour hire agency (including in relation to wages, entitlements and Work Health and Safety (“WHS”)).

As such, significant attention at both State and Federal government level has recently been focussed on this issue. This has seen the introduction of labour hire licensing rules in some States and a greater emphasis on WHS. In this week’s article, we discuss the recent release of Safe Work Australia’s labour hire guide and provide an update on the labour hire licensing scheme introduced by the relevant States.

WHS and Safe Work Australia Guide

Labour hire arrangements are covered by the model Work Health and Safety Act (“WHS Act”) and as such, both the labour hire agency and the host organisation are persons conducting a business or undertaking (“PCBU”) under the Act. Notably, a primary duty of care under the WHS Act is owed by a PCBU to a ‘worker’ and the term ‘worker’ specifically includes a labour hire worker.

Accordingly, if your business contracts labour hire workers or is a labour hire agency which provides services of labour hire workers, the WHS Act sets out specific health and safety obligations applicable to your business.

Safe Work Australia recently issued a new guide ‘Labour hire: duties of person conducting a business or undertaking’. The guide provides information for PCBUs in labour hire arrangements regarding compliance with their health and safety duties under the model WHS laws.

Host PCBU and Labour Hire PCBU

The guide outlines that both the host PCBU and the labour hire PCBU have a primary duty of care to ensure, so far as reasonably practicable, the health and safety of labour hire workers engaged by, or caused to be engaged by them, or whose activities are influenced or directed by the PCBU.

All duty holders in a labour hire arrangement must consult, cooperate and coordinate with each other so far as is reasonably practicable. For example, host and labour hire PCBUs must discuss consultation arrangements, the hazards and risks associated with the work, what precautions will be taken to ensure the health and safety of the labour hire worker and the respective roles the organisation will have in responding to an incident.

Duties of a host PCBU

A host PCBU under the model WHS Act, have the same health and safety duties to labour hire workers as they do for any other worker within their organisation. The model WHS Act specifically provides that a host PCBU cannot contract out of or transfer WHS obligations to another party including the labour hire agency.

Before engaging labour hire workers, it is ideal to consider the nature of work to be carried out including any hazards or risks, plant or equipment to be used, the skills or qualifications required to safely undertake the work required and health and safety risk associated with the work. It is then vital to consult with the labour hire agency and eliminate or, minimise risks in the workplace as well as confirming there is a review process for ensuring ongoing WHS of workers.

Duties of a labour hire PCBU

A labour hire PCBU has a duty under the WHS laws to ensure, so far as is reasonably practicable, the health and safety of workers during their placement with the host PCBU. This also means, in some circumstances, not placing in, or removing workers from, a workplace where the labour hire agency believes there is a risk to health and safety or where the risks have not been adequately controlled.

Similar to the host PCBU, the labour hire PCBU should gather information about the workplace, health and safety risks, the knowledge and skills required by the worker and provide workers with suitable and adequate WHS induction training. Furthermore, the labour hire PCBU should also establish communication methods for workers to contact the labour hire PCBU. Workers must be able to raise concerns regarding WHS including ensuring the workers are able to raise safety issues with the labour hire PCBU if they are unsatisfied with the host PCBU’s response.

Labour Hire Licensing

Labour hire licensing first arose as a way to reduce the exploitation of workers and regulate the labour hire sector. There was initially pressure to create a national scheme, however, labour hire licensing remained a matter for individual States to determine. As such, there are different levels of progression across the country regarding labour hire licensing regimes. In this regard, business that operate across multiple jurisdictions need to ensure they remain up to date and compliant in each jurisdiction.

In addition, if your business uses labour hire workers in any state that now has a licensing scheme, it is an offence to accept such workers from an unlicensed labour hire agent. If you do engage with such unlicensed agents, your business could be subject fines of up to $400,350, depending on the jurisdiction in which you operate.

To assist our clients, we have provided a summary of each jurisdictions current stance on labour hire licensing:

Queensland

Queensland was the first state to implement labour hire licensing which commenced in April 2018. This was as a result of a number of complaints of worker mistreatment, specifically relating to backpackers and migrant workers working through the seasonal harvest.

Labour hire providers had until 15 June 2018, to apply for a licence in order to continue operating in the State.

Notably, a Queensland Magistrate just recently imposed the first conviction of a company under the labour hire licensing legislation in Australia.

The company, A & J Group Services Pty Ltd had initially applied for a labour hire licence but withdrew the application after failing to provide information regarding its compliance with various workplace laws. The company was warned by Labour Hire Licensing Queensland not to provide labour hire services in Queensland. However, they continued to operate and was caught supplying workers to a strawberry farm in January 2019. The Magistrate noted the deliberate decision of the company to ignore the warning and imposed a fine of $60,000.

South Australia

South Australia first passed their Labour hire licensing legislation in 2017 which was set to commence on 1 March 2018. However, before it came into full effect, a change in government occurred and it was announced the legislation would be repealed before the end of that year. However, there was not enough support to abolish the legislation and the licensing scheme has recently been reinstated. It was announced that the governing body for South Australia, Consumer and Business Services recommenced accepting applications for labour hire licences and all labour hire providers needed to have lodged their application by 31 August 2019.

Importantly, from 1 November 2019, all labour hire services without a licence must not provide labour hire services otherwise penalties may apply.

Victoria

The Victorian labour hire licensing scheme commenced on 29 April 2019. Labour hire providers will have six months, or until 29 October 2019 to register online and apply for a licence.

Labour hire providers who do not apply for a licence within the six-month grace period or who have been refused a labour hire licence will be prohibited from providing labour hire services.

Australian Capital Territory (ACT)

In 2018, the ACT government announced their plans to introduce a labour hire licensing scheme. The ACT government confirmed they would look at the existing systems in Victoria, South Australia and Queensland when developing their scheme. There are currently no other details confirmed.

New South Wales, Tasmania, Western Australia, and Northern Territory

These states are all yet to adopt a labour hire licence scheme and there have been no announcements about plans to introduce a labour hire licensing scheme.

Lessons for Labour Hire PCBU’s

Given the changing environment in relation to labour hire services, it is vital for both labour hire agencies and host employers to remain up to date with proposed changes and their duties and obligations including in relation to labour hire licensing, wages and entitlements to workers and work health and safety.

We recommend host employer and labour hire agencies consider the following:

  • Ensure labour hire agencies and host employers review the new Safe Work Australia guide regarding labour hire and ensure the organisations are undertaking and complying with their health and safety duties under the model WHS legislation;
  • Review workplace policies in relation to work health and safety;
  • Ensure all labour hire workers have the required skills and qualifications to undertake the work required;
  • Provide adequate workplace training regularly;
  • Proactively conduct audits of work health and safety compliance;
  • Arrange for regular discussion with the host company/labour hire organisation to ensure both parties are aligned when it comes to obligations for WHS;
  • Continue to remain up to date with changing laws regarding labour hire licencing; and
  • Ensure if your organisation is operating in more than one jurisdiction, that the organisation is compliant in each jurisdiction.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Domestic Violence and Mental Health – Why They Are Workplace Issues!

In the last week alone, the world has seen more than 30 people brutally murdered in mass shooting in the USA. In that regard, the American National Institute of Justice has conducted a recent study in which it has examined every shooting incident at schools, workplaces and places of worship since 1999. As a result of the study, it found that in the majority of mass shooting cases, early childhood trauma including exposure to domestic abuse and violence at a young age was a prevalent issue. The nature of such exposure included parental suicide, physical or sexual abuse, neglect, domestic violence, and/or severe bullying. The trauma was often a precursor to the development of mental health conditions, including depression, anxiety, thought disorders or suicidality. To that end, as a society, we need to be more proactive. In our view, proactive prevention starts in schools, the home and especially at the workplace, whereby employers ought to be thinking about ways to have conversations about mental health and domestic violence and at the very least establishing systems for identifying individuals in crisis, reporting concerns and reaching out — not with punitive measures but by making meaningful support available.

The incidence of domestic violence and mental health issues appears to be increasing and is now a much discussed social issue both domestically and internationally. The statistics regarding domestic violence in Australia are horrifying – one in six women, and one in 20 men, have report having experienced violence from a current or former partner since the age of 15. In March 2018, the Full Bench of the Fair Work Commission (“Full Bench”) observed that family and domestic violence is ubiquitous and that such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. To that it, it is trite to say that this issue impacts on workplaces and requires specific action.

Within our legal system, employees are now entitled to take 5 days of unpaid domestic violence leave in a 12 month period. This entitlement, unlike other leave benefits which accrue, does not accumulate and resets at the start of each 12 month period of employment. However, on 25 July 2019, the Full Bench handed down a new decision which proposed to revisit the existing domestic violence leave provisions in June 2021, after they have been in operation for three years to consider the following issues:

  1. whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave;
  2. whether any changes are needed to the unpaid domestic leave entitlement; and
  3. whether provisions should be made for paid family and domestic violence leave.

Given the insidious and prevalent nature of this issue and the significant impact it can have on the working lives of victims, and as a result of the increasing trend of clients seeking advice on how to manage these issue from a practical perceptive, this article sheds light on why supporting domestic violence sufferers and those with mental health issues, is, in our view, an essential requirement for responsible employers.

However, having the best intentions can sometimes land employers in hot water. In that regard, business’ ought to be cognisant that any request for additional medical information needs to be for a legitimate purpose otherwise the employer runs a substantial risk that the request, and any subsequent detrimental treatment of the employee, may constitute adverse action in breach of the Fair Work Act 2009 (Cth). Similarly, discriminating against an employee experiencing domestic or family violence or mental health issues by either, for example, denying them flexible working arrangements, demoting or transferring them to another area of the business, or terminating their employment, is prohibited under the Fair Work Act 2009 (Cth) and may sound in significant damages award against a contravening employer.

It is equally important for employers to be aware of the legal obligations arising under the Disability Discrimination Act 1992 (Cth) (“Disability Act”) which prohibits discrimination of an employee on the grounds of a disability – including a mental health condition. Accordingly, an employer must offer equal employment opportunities irrespective of an employee’s mental health condition provided they are able to fulfil the inherent requirements of the role for which they were employed or would be able to do so through the implementation of reasonable adjustments. In this regard, for employees suffering from mental health issues, including as a consequence of domestic abuse, often small changes to the working environment will be sufficient to ensure they have access to equal employment opportunities and are not subjected to undue emotional hardship or unreasonable stress at work. Under the Disability Act, an employer is required to make reasonable adjustments with a view to ensuring that an employee with a disability can productively perform the functions of the job.  Such adjustments may include, but are not limited to:

  • reducing the employee’s hours of work;
  • allowing the employee to work flexibly, including remotely or from home; or
  • modifying the employee’s duties or system of work, including providing additional resources to assist the employee manage their workload.

Importantly, these laws apply to independent contractors and partners in a partnership.

In addition to the legal requirements arising under human rights legislation, all employers are subject to work health and safety laws, both at State and Federal level, to ensure, in so far as is reasonably practicable, that the health and safety of an employee is not put at risk from work carried out for the employer. In this way, employers ought to keep abreast of mental health issues, and ensure that any employee suffering from mental health issues or domestic violence, has access to appropriate support services, such as an Employee Assistance Program. It is also key for employers to ensure that employees suffering from mental health issues, or domestic abuse at home, are not exposed to bullying, unreasonable job stress or harassment. So far as is reasonably practicable, employers must ensure that such behaviours are eliminated from the workplace.  In New South Wales, employers must also consider whether knowledge of a serious domestic violence incident against an employee in their employ triggers an obligation under the Crimes Act 1900 (NSW) to report serious indictable offences to Police authorities.

Apart from legislatively entrenched safeguards, responsible employers will be aware that mental illness and promoting domestic violence prevention is more prevalent than most people realise, and it should not be presumed that it only affects people outside of the workplace. In this regard, ignoring the problem can have a far greater consequence for employers and society at large than the cost of developing and implement appropriate strategies and mechanisms at work.  Such strategies should include having policies and support systems in place to create a safe and unthreatening environment where employees feel comfortable communicating openly about mental health or domestic issues.

Some practical steps employers can take to raise awareness of mental health and domestic violence issues include:

  • providing appropriate management training to staff and senior business leaders including in how to have conversations that may be difficult or confronting with employees;
  • ensure organisational structures are clear, and roles and responsibilities are clearly defined;
  • ensure safe working conditions and conduct independent audits to assess compliance;
  • communicate regularly and on an informal basis with employees about issues affecting them;
  • encourage a workplace culture where employees support each other and are positive;
  • respond appropriately to requests for flexible working arrangements;
  • monitoring employee absenteeism and workloads to ensure job-stress is minimised;
  • recommend medical care to an employee who has disclosed a mental health or domestic abuse issue;
  • consult with employees about the creation of a mental health plan (such as a workplace policy);
  • review the workplace culture generally to ensure it is collegiate, supportive and responsive; and
  • provide access to employees for counselling services or specialist support groups.

After many years in legal practice, what we have come to realise as legal practitioners advising on matters which affect people and human relationships, is that recognising and promoting mental health is an essential part of creating a safe, healthy and positive workplace. Employers, managers and workers each have roles to play in building a safe work environment, one that will not create or exacerbate mental health or domestic problems, but which promotes speaking up and asking for help.

In concluding this article, we ask our clients to consider what their organisation can do to assist employees affected by domestic violence or mental health issues, beyond what the law currently provides?

This may include the introduction of paid miscellaneous or discretionary leave; initiatives designed to reduce the stigma associated with domestic violence; access to employer-funded employee assistance counselling programs; accessibility to flexible working arrangements; and the creation of a supportive and positive culture within the business.

Ultimately, as a global community, it is evident that proactive intervention of domestic violence and mental health issues is a responsibility which falls to humanity in its entirety to manage, and this includes how these issues are managed at a workplace level.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

EMPLOYERS DUTY OF CARE – HOW FAR DOES IT GO?

We hear the words “duty of care” used commonly but in terms of an employment relationship, what does this really mean for employers and how far does the duty really go?  By way of introduction, there are a number of duties that are owed by an employer to an employee. These include, but are not limited to:

  • The duty to provide competent staff;
  • The duty to provide a safe place to work;
  • The duty to provide proper and adequate materials; and
  • The duty to provide a safe system of work and supervision.

This article, however, will focus on the duty owed by an employer to an employee to take reasonable care to protect the employee against foreseeable injury arising out of their employment. This duty may arise as an implied term in the contract of employment, or as a separate tort duty, or occasionally as an express contractual term. The duty of care owed by an employer to an employee is personal and said to be non-delegable. Effectively, this means that the employer’s duty cannot be avoided by delegating the duty to some other party.

It is also important to understand that the standard of care is a standard of “reasonable care” and does not amount to a guarantee of the safety for the employee. What is reasonable care in the circumstances is influenced by current community standards and will vary from business to business. For example, a safe system of work in a bank will be very different compared to a farm environment. An employer must also take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. However, it is an employer’s obligation to not merely provide a safe system of work but it is also an employer’s obligation to “establish, maintain and enforce such a system…”[1]

Psychological Injuries

Safe Work Australia reports that 92% of serious work-related mental disorder claims are attributed to work-related mental stress and the typical time off work for such a claim is approximately 15.7 weeks. In this regard, work-related mental disorders can take a significant toll on a worker’s health, but it can also have a negative impact on fellow colleagues as well as the business itself through low productivity and damaging workplace culture.

Managing psychological injury risks and supporting mental wellbeing can be challenging for employers as each employee is different and are affected by their own personal circumstances. However, as a firm, we have personally experienced a significant increase in claims that include work-related psychological injuries and believe employers need to be far more mindful of their obligations and their workplace practices in this regard.

Where an employee pursues legal action against their employer for breach of the duty of care, the Courts will apply the following guiding principles in relation to the question of whether any ensuing psychological injuries occurred as a result of the alleged breach:

  1. As stated above, in the absence of any express contractual term, an employer has an implied contractual duty of care to take reasonable care for the safety of their employees. This duty also extends to taking reasonable steps to prevent employees from suffering psychiatric harm. However, the content of the duty cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment and to that end, the Court has indicated that the substance of the obligations is “fixed” at the time of the formation of the employment contract;
  2. Accordingly, the Courts will consider whether the psychiatric injury suffered by the particular employee was reasonably foreseeable. The High Court decision of Koehler v Cerebos (Australia) Ltd (2005) HCA 15 is a leading authority in relation to claims for psychiatric injury that arises out of stress from an employee’s workload which was the facts in this case. Koehler emphasised there was a requirement to look to the content of the duty and the parties’ obligation under the contract of employment. The decision also accepted that an employer is entitled to assume, in the absence of warning of the possibility of psychiatric injury, that the employee considered themselves able to do the job at the time of executing the contract. As such, in this decision, there was no suggestion the employee was particularly vulnerable and although she had complained, there was no evidence that she was putting her health at risk. The High Court stated that it could not be a breach of the employer’s duty of care to insist upon the employee carrying out the contractual duties to which she had agreed. In Koehler the employee provided evidence which intended to provide a comparison to her workload and the industry standard. However, the Court acknowledged her workload was excessive based on industry standard but nonetheless noted that the parties entered into a contract of employment which departed from the standard and this was accepted willingly by the employee;
  3. Once the Court determined the impact and weight of the employment contract against the alleged breach of the duty of care, the Court in Koehler moved to apply, for the most part, the test for determining tortious liability and whether the risk of a particular employee sustaining recognisable psychiatric illness was reasonably foreseeable. The test for “reasonably foreseeability” is whether the risk was not farfetched or fanciful. In assessing foreseeability, consideration must be given to the nature and extent of the work being done by the particular employee and the signs given by the employee concerned;
  4. If a reasonable employer should, in the circumstances of the case, have foreseen the risk of psychiatric injury to the particular employee, the next question is whether the employer is negligent. This requires the Court to assess what a reasonable employer would do in response to a risk of foreseeable harm. It would also be prudent to consider the probability and gravity of the harm to the employee, the nature and capacity of the employer and the cost and inconvenience of taking precautions by the employer to reduce the risk of harm. These considerations are to be interpreted against the contractual matrix at the time the employment contract was formed; and
  5. If the employer is found to have breached its duty, the Court must consider whether the breach caused the harm and/or loss suffered by the employee concerned. In a practical sense, this requires the employee to establish that it was more probable than not that the risk of injury would have been prevented if the employer had exercised reasonable care and/or put in place measures to prevent the risk of injury from occurring.

The decision of Koehler on its facts involved an employee whose complaint was that she was unable to carry out her stipulated duties in the time provided to her. In light of Koehler it is difficult for a claim to be successful where stress resulted from the amount of work the employee was required to perform as part of their duties articulated in the employment contract. However, Australian courts are developing a larger awareness that not all work stress cases are the same and other categories of cases are emerging where appropriate breaches of duty have been found. For example, in circumstances where bullying, victimisation or harassment are present.

Recent High Court Challenge 

Notably, the High Court of Australia recently considered whether an employer had a duty of care towards its employees during a workplace investigation in the decision of Toni Govier v The Uniting Church in Australia Property Trust (Q) [2018] HCATrans 65.

The facts of the case included Ms Govier and another employee, given the pseudonym “MD” during the proceedings, who were both disability workers and were responsible for the care of the employer’s client named Tara. During a cross over of their shifts, Ms Govier and MD engaged in an altercation with Ms Govier suffering both physical and psychiatric injuries by MD and was hospitalised as result of the injuries.

On the following day, Unitingcare issued Ms Govier a letter instructing her to attend an investigation interview. Ms Govier was also directed not to discuss the incident with any other employee and was stood down on full pay pending the outcome of the investigation.  Ms Govier did not attend the interview and presented a medical certificate to her employer which stated she was unfit for work.

However, a fortnight after the incident, Unitingcare issued a further letter to Ms Govier claiming she had refused to attend an interview and advising of their preliminary view that she had engaged in violent and inappropriate behaviour against MD. Unitingcare had spoken to MD and their client, Tara where they found that the incident involved kicking, hitting and pushing by Ms Govier.  Ms Govier was provided five days to show cause why her employment should not be terminated.

Ms Govier’s employment was ultimately terminated and she was diagnosed with a chronic post traumatic disorder and a major depressive condition. As a result, Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier was unsuccessful. The judge rejected her submission that there was a duty of care to provide a safe system of work which extended beyond the conduct of tasks for which an employee is engaged and that included a duty to provide a safe system of investigation and decision making.

Ms Govier appealed to the Queensland Court of Appeal who ultimately agreed with the District Court. The Queensland Court of Appeal followed the authority of State of NSW v Paige [2002] NSWCA 235 where they found that the employer did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to an employee.

Ms Govier appealed to the High Court of Australia. The special leave question before the High Court was to consider whether the decision of Paige precludes the obligation of an employer from having a duty of care to an employee merely because the acts are done in the course of the workplace investigation. Ms Govier had argued her claim in both tort and contract, relying upon the implied obligations under the contract of employment.

Judge Edelman found that the contractual obligation and the tortious obligation were both entrenched in the same concept of an assumed responsibility but decided that the assumed responsibility was exclusively shaped by the terms of contract. On the other hand, Justice Gordon pointed out the contract of employment was not exhibited at trial and therefore they did not have the terms said to inform the conduct of the employer. Without having the contract of employment before them, they were unable to understand the contractual framework. In particular, the High Court was unable to properly consider the question as to the existence and scope of any duty of care under the contract.

In the end, the High Court found that given the contract of employment’s centrality to the determination of the issues, the proceeding was not a suitable occasion to determine the issues. Accordingly, special leave to appeal the decision to the High Court was not granted.

Consequently, the issue as to whether investigations form an aspect of the tortious duty to provide a safe system of work was left unanswered. As the decision of the High Court was not based on the merit of the argument but dismissed on a technicality as result of not having the terms of the contract before them, the issue has been left unsettled and therefore open to further argument and judicial consideration.

Lessons for Employers

Even though Ms Govier was, in this instance, unsuccessful, the case highlights the importance for employers to be mindful of an employee’s wellbeing during workplace investigations and ensure employers understand the scope of their duty of care and obligations, including having in place the tools and support necessary to meet these obligations.

The consequence of good employee management creates a positive and productive business, less workers’ compensation claims and an engaged workforce. In this regard, we suggest the following:

  • Ensure you have an employment contract for each employee outlining their role and duties;
  • have in place clear policies and procedures to manage risk and complaints including bullying and harassment policies, investigation policy and disciplinary action policies;
  • be mindful of the risks associated with a workplace investigation including employees under investigation and suffering psychological injuries;
  • ensure the business engages investigators who are trained and experienced;
  • provide training to management in order to recognise and address safety risks including mental health;
  • where a breach of policy occurs, take steps to address the complaint or safety risk appropriately;
  • provide support to management in order to recognise and respond appropriately to employee concerns regarding managing workloads, being alert to increase absenteeism or significant changes in the employee’s performance or behaviour; and
  • provide employees training on mental health and how to manage stress – consider incorporating mental health programs or initiatives and providing access to employee assistance services.

If further information in relation to any aspect of this alert is required, or should you wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

[1] McLean v Tedman (1984)155 CLR 306 at 313

What to do in the Case of a Serious Accident at Work

Employers are required to ensure the work health and safety of workers while at work. Not only is work health and safety within the workplace a legal requirement for employers, but workplace injuries can have a significant impact on a business and severe consequences for all workplace participants. Significant workplace injuries can have a lasting negative effect on the business through reduced productivity, lost clients, low staff morale, traumatised staff and the associated reputational costs.

Australian statistics show that between 2003 and 2015 there were 3,207 work-related fatalities and 107,355 serious claims lodged by employees for work-related injuries or disease in the 2014 to 2015 financial years. Astonishingly, 129 Australian workers have been killed at work since 1 January to 16 October 2017. In terms of cost, in 2012-2013 work- related injury and disease cost the Australian economy in the vicinity of $61.8 billion.

Legislation and Regulators

As part of the national harmonisation of work health and safety legislation, the Commonwealth and a majority of the states and territories agreed to amend their legislation so that each jurisdiction was consistent (with minor variations) under a national model. On 1 January 2012, the model Work Health and Safety Act 2011 (Cth) (“WH&S Act”) was introduced.

Prior to the harmonisation of the work health and safety legislation, SafeWork Australia was established to assist the Commonwealth, State and Territory governments to improve WHS and compensation benefits for injured workers. Each State and Territory now has their own SafeWork bodies.

What are your obligations as a business owner?

The WH&S Act imposes various duties on persons in the workplace, including any person conducting a business or undertaking as well as directors and officers, workers and other individuals who visit the workplace.

There are number of key obligations of which your business should be aware, including:

  • the provision and maintenance of a work environment without risks to health and safety;
  • the provision and maintenance of safe plant and structures;
  • the provision and maintenance of safe systems of work;
  • the safe use, handling, and storage of plant, structures and substances;
  • the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities;
  • the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
  • that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

These obligations extend to all workers within your business including employees, trainees, apprentices or work experience students, outworkers, contractors or sub-contractors, employees of a contractor or sub-contractor, as well as employees of a labour hire company and volunteers.

Both the employer and individuals may be personally prosecuted for failure to adhere to WHS obligations and charges may include manslaughter, in circumstances of a fatality, under criminal legislation. The penalties involved for breaches of the WH&S Act are significant. For example: the offence of reckless conduct can incur a $300,000 penalty for an individual, $600,000 for an individual who was conducting a business or an officer of a person conducting a business and $3,000,000 for a corporation. Individuals may also face 5 years imprisonment.

What to do if your worker is injured?

If there is a serious injury or illness within the workplace there are specific obligations the person carrying on the business or undertaking must fulfil. These are as follows:

  1. Provide immediate first aid (where appropriate) and seek medical treatment (if required).
  2. If the injury or illness was the result of a ‘notifiable incident’ you must contact Safe Work NSW immediately. A notifiable incident is a death, serious injury or illness, or dangerous incident.
  3. If the incident involves a death or injury resulting in hospitilisation, you must notify the police.
  4. Contact the next of kin of the injured or ill worker.
  5. Secure the area and do not touch or move any items.
  6. Obtain witness details and offer witnesses and workers counselling.
  7. Obtain legal advice to ensure you are appropriately represented when the Police or Safe Work attend the premises.
  8. Notify the insurer within 48 hours. The following information will likely be asked:
  • Worker’s name, address, telephone number and date of birth;
  • Name and address of the workplace;
  • Name of treating doctor and contact telephone number or name of the hospital;
  • Date and description of the injury and details of how it happened; and
  • Name and contact details of the person making the notification and their relationship with the worker or employer.

It is advisable to seek ongoing legal advice as soon as possible. This will assist in protecting your business interests and in obtaining witness statements in the event of a prosecution.

Case Examples

On 10 February 2015, a worker suffered serious head injuries when he fell down a flight of stairs, without adequate edge protection, at a construction site. After a SafeWork NSW Investigation the Defendant, Karimbla Constructions Services (NSW) Pty Ltd, was charged with breach the WH&S Act. On 31 March 2017, the defendant was convicted by the District Court and fined $135,000

On 6 August 2014, a 17 year old work experience student suffered amputation of the tips of two fingers when using a brake press machine. After a SafeWork NSW investigation, the Defendant, Thermal Electric Elements Pty Ltd, was charged with breaching the WH&S Act. On 24 March 2017, the Defendant was convicted by the District Court and fined $250,000.

Additional Considerations

It is also highly advisable that businesses have policies and procedures in place dealing with work health and safety issues and with which all employees and workers are familiar. The failure to ensure workers are properly trained and a lack of appropriate policies and procedures will guarantee that the business has not taken all reasonable steps to ensure the safety of workers. In addition, it is an opportune time to remind employers to log and review “near miss” incidents. It is extremely important for businesses to proactively review “near misses” in order to improve safety procedures and ensure they do not eventuate into actual incidents, particularly when they could have been prevented. It is always better to be safe than sorry when it comes to the safety of your workforce.

Finally, the most lasting impact of a serious workplace incident is the fact that you as the person responsible, may have to live with the knowledge that someone did not come home from work, or suffered significant life changing injuries, as a result of your failure to ensure their safety at work. Do not let that person be you.

If you wish to further discuss the steps that can be taken in relation to your work health and safety obligations or have an employment matter for which you require assistance, please do not hesitate to contact us for specialist advice.

This alert is not intended to constitute, and should not be treated as, legal advice.

Drug and Alcohol Testing in the Workplace

The implementation of workplace drug and alcohol testing is a sensitive and complex issue. It is not uncommon for employers in certain industries such as mining, transportation and correctional services, to impose mandatory alcohol and illicit drugs testing for all employees, however careful consideration needs to be given to the corresponding legal obligations owed by an employer vis-à-vis the employees’ privacy and safety. More and more often, the industrial Courts and Tribunals routinely accept that random testing in the workplace is an intrusion on the privacy of the individual and are reluctant to condone such practices other than on genuine health and safety grounds.

In this regard, as an employer there is a legitimate interest (and indeed obligation) to eliminate, insofar as reasonably practicable, health and safety risks at the workplace including the hazards inherently associated with the consumption of alcohol or use of illicit drugs. Beyond this, however, an employer has no right to dictate what alcohol or drugs an employee experiments with in their own time. Given the current legal environment, the introduction of an alcohol and drug testing policy can be a powerful tool for employers, and this is particularly the case where testing is random, rather than ‘for cause’. However, employees and their union representatives are very cautious about the implementation of such policies and this issue can create significant industrial angst.

How to therefore construct an appropriate alcohol and drug testing policy (including for random selection) can be a fundamental challenge for some employers. This is especially difficult in certain types of industries where the issue of impairment through the use of such substances raises less risk (and in some circumstances, virtually zero risk) as opposed to other sectors where the occupational risks are ostensibly much greater. Before examining the issue of policy creation in relation to this issue, employers should consider whether it is desirable (or indeed beneficial) for contracts of employment to specify whether employees are required to comply with specific policies. It has been observed that an employee who refused to undergo a drug test requested by their employer in circumstances where the employee’s contract expressly referred to the policy as a contractual requirement failed to comply with a lawful and reasonable direction and was capable of giving rise to grounds for a valid reason for dismissal: see Briggs v AWH Pty Ltd [2013] FWCFB 3316.

In determining whether to introduce a drug and alcohol policy it is important for employers to ensure that any such policy is not intended to be used for the covert purpose of catching and sacking employees or to discriminate against certain classes of employee. The only legitimate purpose is to modify employee behaviour so as to prevent employees from attending for work under the influence of alcohol or drugs, and are able to safely perform work. Furthermore, if employers wish to introduce such a policy, they ought to consider the following issues:

  • the method through which the test is carried out (discussed below);
  • if a positive test result is confirmed, who is the appropriate person to speak with the employee to validate the result (preferably a medical practitioner), and the options for treatment or rehabilitation moving forward;
  • giving the employee an opportunity to respond to a positive test result, and consider whether there is any aggravating or mitigating factors which should be taken into account;
  • depending on the employer’s policy and whether the positive test result is part of pattern of repeated conduct, what kind of disciplinary sanction is appropriate, for example, determine if summary dismissal is warranted;
  • what reasonable assistance (including education) may be offered to an employee with a drug or alcohol problem, and ensuring that access to time off to address such problems is facilitated in the same way as an otherwise ill or injured employee;
  • whether it is appropriate to notify the Police or other authorities in cases of high-level work health and safety breaches; and
  • how disputes relating to the enforcement of the policy should be addressed.

To date, no Australian State or Territory has enacted a legislative scheme for the testing of alcohol or drugs in the workplace. In the absence of any clear legislative guidance, there has been no consensus reached in the decisions of industrial Courts as to what is the most appropriate method of testing, however, the preferred approach is the collection and analysis of a urine or saliva sample. Although urine testing has been argued as the more accurate means to detect and determine whether an employee has consumed a range of drugs which may still be present in their system, albeit not having any impairing affect, saliva testing has been argued as being able to identify present impairment from drug use because it is designed to detect very recent usage. Although each method has its advantages, the Fair Work Commission in a recent full bench decision held that a mining company can properly use either method of testing to enforce its rules on drugs or alcohol use: Construction, Forestry, Mining and Energy Union-Construction and General Division v Port Kembla Coal Terminal Limited [2015] FWCFB 4075

If an employer has a proper drug and alcohol policy in place, it will go a long way in enabling an employer to dismiss an employee for serious misconduct should the employee return a positive result for alcohol or drug use at the workplace, and displays behaviour consistent with them being intoxicated or under the influence of drugs at work. Similarly, an employee who knowingly produces a sample in response to a drug test that has been adulterated may be guilt of serious misconduct: Ruddell v Camberwell Coal Pty Ltd t/a Integra Open Cut Mine [2010] FWA 8436.

Drug and alcohol testing is a defensible response to an employer’s legitimate concerns regarding productivity, integrity and brand reputation, and most importantly safety compliance. It is essential, however, for employers to be clear about the reasons for testing certain employees, and whether it is merely to detect usage or actual impairment exclusively during work hours. It is in this context that the Fair Work Commission provided a firm warning to employees in the decision of Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249 overturning the decision of the primary judge and dismissing the Appellant’s unfair dismissal application. In this case, the Applicant was employed as Master of a vessel. He was called into work on short notice, and lost control of the vessel which resulted in an accident. The Applicant subsequently tested positive to marijuana via a urine sample. He argued that given he was not rostered to work and had used the drug in his own time, that his dismissal for breaching the policy was unfair. In overruling the primary judge’s decision in favour of the employee, the Full Bench commented as follows:

“As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.”

In view of the line of existing authorities and permissibility of adopting a zero-tolerance policy to alcohol or drug use in the workplace, is vital for employers to have effective policies in place for managing such issues. This is not only relevant for employers in industries which have inherent risks associated with employees who may be under the influence of drugs or alcohol. It is equally permissible for employers to base the reason for a zero-tolerance drug and alcohol workplace on the need to maintain an appropriate workplace culture and for the protection of the employer’s reputation. The policy however needs to ensure to the extent possible that employee privacy is maintained and protected. Indeed the time is ripe for employers to act now to implement such processes. If you wish to discuss any aspect of this article or require specialist advice or assistance in drafting appropriate workplace polices or any other employment law matter, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Are you okay? Supporting Mental Health and Domestic Abuse Survivors at Work?

As many of our readers would be aware, the second Thursday of September in each year, is a national day dedicated to asking family, friends and colleagues the simple question: “Are you okay?”. Given that Thursday 8 September has just gone by, and in light of growing global awareness of depression and suicide, mental health issues and domestic or family abuse, we thought it would be fitting to write a client alert about this topic. Whilst matters like depression and domestic problems may have previously been considered unspeakable outside of private life, in light of emerging public acceptance to keep these matters on the social and political agenda, employers should now, more than ever, be aware of their legal obligations to support and accommodate those struggling with or recovering from mental health issues and domestic abuse.

In one way or another, mental health is likely to either, directly or indirectly, affect all of us at some point in our lives. In this regard, how a person is treated, including at work, can have significant consequences for those suffering from, or supporting a person who is suffering from, a mental health condition or domestic abuse. The only way to determine however, the most appropriate method to support an employee in such circumstances is to talk to them. As such, employers have the right to ask questions about an employee (or potential employee’s) mental health. If necessary, where more information about a condition is legitimate and reasonable, an employer is permitted to ask an employee for more medical information. This information may be used to:

  • determine whether the person can perform the inherent requirements of the role for which they were hired;
  • determine if any reasonable adjustments can be made to the employee’s working environment, duties or system or work to alleviate the impacts on them of their health condition or domestic situation; or
  • establish the need to take personal leave, and access superannuation, workers’ compensation and other forms of insurance.

An employer ought to be cognisant that any request for additional medical information needs to be for a legitimate purpose otherwise the employer runs a substantial risk that the request, and any subsequent detrimental treatment of the employee, may constitute adverse action in breach of the Fair Work Act 2009 (Cth). Similarly, discriminating against an employee experiencing domestic or family violence by either, for example, denying them flexible working arrangements, demoting or transferring them to another area of the business, or terminating their employment, is prohibited under the Sex Discrimination Act 1984 (Cth) and may sound in a damages award against a contravening employer.

It is equally important for employers to be aware of the legal obligations arising under the Disability Discrimination Act 1992 (Cth) (“Disability Act”) which prohibits discrimination of an employee on the grounds of a disability – including a mental health condition. Accordingly, an employer must offer equal employment opportunities irrespective of an employee’s mental health condition provided they are able to fulfil the inherent requirements of the role for which they were employed, or would be able to do so through the implementation of reasonable adjustments. In this regard, for employees suffering from mental health issues, including as a consequence of domestic abuse, often small changes to the working environment will be sufficient to ensure they have access to equal employment opportunities and are not subjected to undue emotional hardship or unreasonable stress at work. Under the Disability Act, an employer is required to make reasonable adjustments with a view to ensuring that an employee with a disability can productively perform the functions of the job. Such adjustments may include, but are not limited to:

  • reducing the employee’s hours of work;
  • allowing the employee to work flexibly, including remotely or from home; or
  • modifying the employee’s duties or system of work, including providing additional resources to assist the employee manage their workload.

Importantly, these laws apply to independent contractors and partners in a partnership.

In addition to the legal requirements arising under human rights legislation, all employers are subject to work health and safety laws, both at State and Federal level, to ensure, in so far as is reasonably practicable, that the health and safety of an employee is not put at risk from work carried out for the employer. In this way, employers ought to keep abreast of mental health issues, and ensure that any employee suffering from mental health issues or domestic violence, has access to appropriate support services, such as an Employee Assistance Program. It is also key for employers to ensure that employees suffering from mental health issues, or domestic abuse at home, are not exposed to bullying, unreasonable job stress or harassment. So far as is reasonably practicable, employers must ensure that such behaviours are eliminated from the workplace. In New South Wales, employers must consider whether knowledge of a serious domestic violence incident against an employee in their employ triggers an obligation under the Crimes Act 1900 (NSW) to report serious indictable offences to Police authorities.

Apart from legislatively entrenched safeguard, responsible employers will be aware that mental illness is more prevalent that most people realise, and should not presume that it only affects people outside of the workplace. In this regard, ignoring the problem is far greater than the cost of developing and implement appropriate strategies and mechanism, such as policies, to create a safe and unthreatening environment where employees feel comfortable communicating openly with a manger or business owner about mental health or domestic abuse issues, and the measures required to assist an employee in these circumstances.

Some practical steps employers can take to raise awareness of mental health and domestic abuse issues include:

  • providing appropriate management training to staff and senior business leaders including in how to have conversations that may be difficult or confronting with employees;
  • ensure organisational structures are clear, and roles and responsibilities are clearly defined;
  • ensure safe working conditions and conduct independent audits to assess compliance;
  • communicate regularly and on an informal basis with employees about issues affecting them;
  • encourage a workplace culture where employees support each other and are positive;
  • respond appropriately to requests for flexible working arrangements;
  • monitoring employee absenteeism and workloads to ensure job-stress is minimised;
  • recommend medical care to an employee who has disclosed a mental health or domestic abuse issue;
  • consult with employees about the creation of a mental health plan (such as a workplace policy); and
  • provide access to employees for counselling services or specialist support groups.

After many years of legal practice, what we have come to realise as legal practitioners advising on matters which affect people and human relationships is that recognising and promoting mental health is an essential part of creating a safe, healthy and positive workplace. Importantly, managers and workers both have roles to play in building a safe work environment, one that will not create or exacerbate mental health or domestic problems and where workers experiencing such circumstances are properly supported.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

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