• Enterprise Legal - First Industrial Manslaughter Prosecution Sentence Against an Individual Under Queensland’s New Laws

    In a first for Queensland, Mr Jeffrey Owen of Owen’s Electric Motor Rewinds has become the first individual to be charged with industrial manslaughter under the Work Health and Safety Act 2011 (Qld) (the 'Act').

    Tragically in July 2019, a worker at the Owen's Electric Motor Rewinds site was fatally crushed by a portable generator that was being unloaded by a forklift. It is alleged that the forklift directly flipped as a result of Mr Owen overloading the forklift.

    This is the first prosecution of an individual for industrial manslaughter in the state of Queensland and if convicted, Mr Owen faces a maximum penalty of 20 years' imprisonment.

    The offence of industrial manslaughter was included in the Work Health and Safety Act 2011 (Qld) (WHS Act), as well as the Electrical Safety Act 2002 (Qld) and Safety in Recreational Water Activities Act 2011 (Qld) and is defined as negligent conduct that causes, or substantially contributes to, the death of a worker, and a prosecution may be brought against a body corporate or individual senior officer.

    It carries a maximum penalty of over $10 million dollars for a company, or 20 years’ imprisonment for a senior officer and was introduced in 2017 following increased numbers of workplace fatalities.

    Industrial manslaughter is subject to the same guidelines and standards as criminal manslaughter and criminal negligence under the Criminal Code (Qld) 1899 and the same defences for criminal manslaughter are also available, excluding the defence of ‘accident’.

    Organisations and their most senior directors and supervisors will face severe consequences should one of their workers be fatally injured on the job and it is vital that appropriate steps are taken to ensure the safety and wellbeing of those in the workplace. This was highlighted in the Queensland District Court case of R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 where a fine of $3 million was imposed on a company for industrial manslaughter and his Honour Judge Rafter SC stated:

    “The sentences imposed should make it clear to persons conducting a business or undertaking, and officers, that a failure to comply with obligations under the Work Health and Safety Act 2011 (Qld) leading to workplace fatalities will result in severe penalties.”

    For guidance and support on Workplace Health and Safety compliance and prosecutions, contact Enterprise Legal’s Workplace Relations team today:

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  • Enterprise Legal - Employee Injured While Walking His Dog Whilst On-Call = Compensation

    In the world of workplace injuries and workers’ compensation, there is one phrase that can make employers feel both at ease, and a little unsure and that is ‘in the course of employment’.

    Whilst on its face the criteria for compensation for a workplace injury could be perceived as being straight forward, every now and again there is a case that leaves us feeling like anything is paw-sible (strap in for some dog puns, please fur-give me).

    Along comes the decision in N. v Hydro Electric Corporation [2021] TASWRCT 2 where an employee was successful in a claim for compensation for an injury he sustained whilst out walking his dog whilst on-call.

     

    So What Happened?

    At the time of the injury, the applicant was employed by the Hydro Electric Corporation as a relief area coordinator and was staying at the employer’s Tullah accommodation for a 7 day period during which he was required to be on-call.

    One evening, whilst on-call, the worker ventured out for a walk along the Tullah with his partner and his dog, when he slipped and fell on a wet log suffering a fractured left femur (oof, that’s ruff).

    The issue before the Tribunal was whether the injury sustained by the worker arose out of or in the course of the worker’s employment with the employer.

     

    The Law

    In a nutshell, A worker will suffer an injury that ‘arises out of’ his or her employment if there is a causal connection between the injury and the work. An injury will arise out of a worker’s employment if the worker suffered it whilst performing work that he or she is retained to perform or other work incidental thereto.

    Whether a worker suffers an injury ‘in the course of’ his or her employment is a more vexed question and less easily identified. It denotes a temporal connection.

     

    The Decision

    Finding in favour of the worker, the Chief Commissioner found that the worker’s injuries arose ‘in the course of his employment’. In coming to this decision, the Chief Commissioner Clues applied the test in Comcare v PVYW  and examined:

    1. the meaning of ‘in the course of his employment’; and
    2. whether the employer had induced or encouraged the worker to engage in the activity that led to the injury.

    In this case, the worker conceded that his injury did not ‘arise out of’ his employment. He argued that he suffered the injury ‘in the course of’ his employment because it was sustained in circumstances possessing a sufficient connection to his work and Chief Commissioner Clues agreed.

    The case really turned on the fact that the worker was walking along the Tullah lake house whilst he was required to: be on call for work after normal hours; be contactable within 15 minutes; and ready to commence work within 15 minutes of being contacted.

    The worker was authorised to spend the time between periods of on-call work in any way he wished that was not inconsistent with him being contactable and able to attend work. The Chief Commissioner therefore held that the act of walking along the Tullah lake house was relatively an unexceptional activity and would have likely have been held by the employer to have been an acceptable activity.

    The worker’s injury was subsequently held to have occurred in the course of his employment with the employer.

     

    Where to From Here?

    Whilst the decision is from the Workers Rehabilitation And Compensation Tribunal of Tasmania (and I’m writing this from my 691 m above sea level hill in Toowoomba) and you might think that we are fur-tunate that it wasn’t set in Queensland, it may still be considered as being persuasive here in Queensland and our very own Workers’ Compensation and Rehabilitation Act 2003 contains very similar provisions.  

    Ultimately this decision highlights the fact that the concept of arising ‘in the course of employment’ is not a narrow one and that the circumstances of the employment are crucial to determining whether there is a nexus between the activities performed, the injury and the employment.

     

    For advice and support on how to safeguard your business and mitigate the potential of similar claims, contact Enterprise Legal’s Workplace Relations team today and request a free initial consult:

    ☎️ (07) 4646 2621

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  • Enterprise Legal - Occupiers (Not Employers) Beware - Loose Step Leads to $1 Million in Damages

    In a cautionary tale for all employers and occupiers (especially those with stairs!), the recent case of Julie Walker v Top Hut Banoon Pastoral Co Pty Ltd sets a stern reminder that steps need to be taken (pun intended!) to ensure that the workplace is safe and adequately maintained so as to avoid causing injury to others.

     

    What Happened?

    The plaintiff was employed by Shear Away Pty Limited, however, Top Hut Banoon Pastoral Co Pty Ltd was the occupier of Banoon station where she was attending as a shearers’ cook.

    On 28 July 2015, whilst at Banoon station, the plaintiff put her foot on a step, and as she was bringing her other foot down, she felt it tilt and she was suddenly on the ground screaming out for help. She said that she noticed that the step had broken and one side had come “loose of the wood” and had torn completely off, the other side was “hardly attached but there”.

    She sustained injuries to her lower back, right wrist, left ankle and right knee. She also suffered a psychiatric injury and an exacerbation of her type 1 diabetes mellitus. Her injuries were assessed to be a 15% whole person impairment.

     

    The Law Generally

    At law, it is well established that an employer has a non-delegable duty to take reasonable care. The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.

    The employer’s duty to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control.

    The distinction in this case fell to fact that the employer did not have full control over the premises and therefore, in the opinion of District Court Judge Weinstein SC, there was no breach of duty on the part of the employer and the employer’s duty where there was a defect in the occupier’s equipment or plant was to do no more than cast an eye over the premises to ensure they appeared safe. The occupier alone was liable in negligence for not taking precautions against the risk of harm from the defect that caused the injuries to the plaintiff.

     

    The Damages

    Whilst the final orders on damages are still to be made, the plaintiff will be awarded approximately $1 million dollars for her injuries and Weinstein SC’s decision included a non-economic component of around $240,000, given the significant effect on the employee’s lifestyle and health following the fall.

    It was held that she was no longer able to perform her role after the fall, and had to quit her job, which she had intended to keep till her late 60s.

     

    Lessons Learnt

    Whilst the employer in this case was held to not be liable for the injuries sustained by the plaintiff, this does not automatically mean that this will be the case for other employers in the future – no one case is the same! Employers still need to ensure they take reasonable care to avoid exposing employees to unnecessary risks of injury, so far as is reasonably practicable.

    For occupiers, it is a stern warning that liability for injuries sustained will not automatically rest with the employer and there is the real risk that liability may fall on the occupier alone if the premises is not safe and not safely maintained.

     

    For advice regarding your premises or for advice regarding your Workplace Health and Safety obligations, contact either the Enterprise Legal Workplace team or the Business and Property team today:

    ☎️ (07) 4646 2621

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  • Enterprise Legal - Deliveroo Decision Delivers a Spicy Punch to the Gig-Economy

    For a long time now we have seen delivery giant Uber successfully fend off claims from delivery drivers claiming they were employees and not independent contracts.

    This time, it was Deliveroo Australia Pty Ltd (Deliveroo) who was on the menu before the Fair Work Commission and in an explosive decision, the Commission ruled that a Deliveroo driver was an employee, rather than an independent contractor.

     

    What Happened?

    Mr Franco had worked for Deliveroo for approximately three years when he suddenly received an email notification from Deliveroo indicating his “supplier agreement” would be terminated on the grounds that he was too slow at delivering orders.

    Mr Franco subsequently filed a claim for Unfair Dismissal in the Fair Work Commission, challenging his termination.

    The hurdle – Was Mr Franco an employee or independent contractor?

    Independent contractors are not protected by the Unfair Dismissal provisions contained the Fair Work Act 2009 (Cth) and therefore Deliveroo objected to the unfair dismissal application on the basis that Mr Franco was an independent contractor, rather than an employee.

    When looking at the relationship between Deliveroo and Mr Franco, Fair Work Commissioner Cambridge (the Commissioner) affirmed the longstanding principle that determination of whether a person is an employee or independent contractor requires consideration of various identified indicia, with no single factor being decisive, to form a view about the overall impression of the relationship.

    Some of the key points that turned in Mr Franco’s favour included:

    • Contract was not king: Whilst the agreement between Deliveroo and Franco stated that the relationship between the parties was one of principal and independent contractor, it was given little weight; 
    • Presentation as part of the business: Although not mandatory, Deliveroo expects its delivery riders (including Franco while he was engaged) to wear Deliveroo branded attire and use branded equipment. The Commissioner therefore formed the view that they in effect presented to the world as part of the Deliveroo business and was held to be a factor likened to an employee;
    • Equipment: Mr Franco technically provided his own equipment, however this was limited to a smartphone and motorcycle and therefore the Commissioner held that, as he would use such equipment personally as well, this did not represent a ‘substantial investment in capital equipment’ and therefore it could not be relied upon to firmly establish a contractor relationship; 
    • Control: Although Mr Franco had significant autonomy over the work he performed as he was able to log onto the Rider app and choose when and where he would make deliveries, Deliveroo still had the primary ability to exercise control through an online system, which required riders to book engagement sessions in advance and this system provided preferential treatment to those who met performance measures. Although Deliveroo had ceased using this system and this is likely going to be one of the many sticking points for when Deliveroo appeals the decision (which it has confirmed it will be), the Commissioner focused on the fact that it had the ability to reintroduce the system;
    • Ability to work for others: Despite the fact that Mr Franco was actively working for competitors at the same time that he was engaged with Deliveroo, the Commissioner determined that this was not significant enough to prevent the finding of the existence of an employment relationship when considered in the context of the current gig-economy and digital world.

     

    The Decision

    Ultimately, the Commissioner formed the view that Franco was an employee and was not a contractor carrying on a trade or business of his own. Quite significantly, the Commissioner subsequently ordered Mr Franco be reinstated, which only happens in less than 15% of Fair Work Commission cases. Deliveroo was also ordered to pay Mr Franco for lost pay and his continuity of service was also not broken.

     

    What Could This Mean For You?

    Whilst Deliveroo have openly stated that they intend to appeal the decision, if upheld, the decision will have wide-reaching ramifications for gig workers and digital businesses who rely on a contractor and principal model.

    It is becoming more and more important to ensure that businesses get the distinction between employee and contractor right as the misclassification of a worker can lead to significant unexpected liabilities including (but not limited to):

    • Fines and penalties under the Fair Work Act
    • Underpayment and back pay of wages
    • Payment of unpaid superannuation entitlements
    • Workplace Health and Safety liabilities

     

    If you would like assistance with reviewing your current contractor arrangements, start a conversation with our dedicated Workplace Relations team:

    ☎️ (07) 4646 2621

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