• 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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  •  Rolling in the Deep With Rolling Fixed-Term Contracts | Enterprise Legal

    Fixed term contracts are back in the spotlight after a recent decision of the Fair Work Commission in Michael Nasr v Mondelez Australia Pty Ltd [2021] FWC 2802 (Nasr), where the Commission held that an employee engaged over a 30-month period under eight separate and successive fixed term contracts, was not dismissed within the meaning of section 386(1)(a) of the Fair Work Act 2009 (Cth) when his last contract came to an end.  

    Why is this important? Well, as a general rule, employers need to be very careful when engaging workers on rolling fixed-term contracts, even if there are legitimate business reasons to do so, because there is the risk that such contracts build an expectation that the employment relationship (not just the employment contract) will continue following the expiry of the contract, leading to potential unfair dismissal claims when the final contract is not renewed.

    The decision in Nasr sheds some useful light on how employers may still be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth) in circumstances where an employee’s employment is terminated at the end of a fixed term contract.

     

    What Happened?

    Following a period of casual engagement as a labour hire worker with confectionery and food giant Mondelez, Mr Nasr was subsequently employed directly by the company over a 30-month period under eight separate and successive fixed term contracts (ranging in duration from one month to 12 months), prior to his final contract expiring on 31 December 2020.

    Following the cessation of his employment, Mr Nasr subsequently lodged an unfair dismissal claim and sought to be reinstated in his position on the basis that by his eight contract he had a reasonable expectation of ongoing or permanent employment. Mondelez, on the other hand, claimed that there had been no dismissal within the meaning of s386(1)(a) of the Fair Work Act 2009 (Cth) as Mr Nasr’s employment had not been terminated at the initiative of Mondelez. Instead, his employment came to an end at the expiry of his contract, which is excluded from the meaning of dismissal under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

     

    The Decision

    The Commission held that Mr Nasr’s application had no jurisdiction to proceed, on the grounds that his employment had not ceased at the initiative of his employer and Mondelez were subsequently protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

    The Commission relied on the decision of Khayam v Navitas English Pty Ltd which confirms the principles in determining whether a dismissal occurred ‘at the initiative of the employer’ when an employment contract reaches its expiry date. Such principles include (inter alia):

    1. where a series of fixed-term contracts exists, the question is whether the parties genuinely agree that the employment relationship in totality (not just the employment contract) would come to an end at the expiry date of the last contract and importantly;
    2. where it has been agreed that a contract will end on a particular date the parties have not agreed that the employment relationship would also terminate, it is arguable that there is an expectation of an ongoing employment relationship and therefore the termination of employment at the end of the contract may still constitute termination at the initiative of the employer; and
    3. where the terms of a fixed-term contract reflect a genuine agreement that the employment relationship is not to continue following the end of the contract, the relationship is terminated by agreement, not at the initiative of the employer.

    The Commission found that each of Mr Nasr’s contracts contained a clear expiry date and expressly stated that Mr Nasr’s employment (not just the contract) would terminate at the end of the relevant period, and also that there was no guarantee of further employment beyond the expiry date. It was also important that Mr Nasr was not working in the same position under each of the contracts, moving between departments and in various roles which further supported the Commission’s views that the contracts were necessary based on the genuine operational requirements of the company and that there was a real indication that Mr Nasr’s engagement was limited to the scope of each contract.

    While the Commission recognised that Mr Nasr had been employed under successive fixed-term contracts for a “greater period than is ordinarily the case”, the Commission accepted that there were genuine operational reasons for him to be engaged under the rolling fixed term contracts.

     

    Important Message for Employers

    It is encouraging to see the Fair Work Commission recognise and uphold the genuine and useful role fixed term contracts have in the workforce, however it is also a very important reminder to employers that fixed term contracts need to be done right or the exposure could be significant. Had Mondelez’s contract not been well drafted, the company would have no doubt been exposed and the Commission has set the bar for what is required in order to be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

     

    If you’re wanting to have a chat about whether your current fixed term agreements are up to scratch, or if you would like some guidance on the most appropriate way to engage your employees, contact our dedicated Workplace Relations team today:

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  • Enterprise Legal - Recent Changes to Corporations Act Significantly Impact Timing for Director Resignations

    In February 2020, changes were made to the Corporations Act2001 (Cth) which significantly impacted the date on which Company Directors were deemed to have resigned. A 12-month transition period was implemented following these changes, which meant that as of 18 February 2021 these changes now apply in practice.

    The timeframe for which a Company must notify ASIC of any resignation of a Director remains at 28 days after the resignation, however the new changes mean that if the Company does not give notice to ASIC (by lodging a Form 484) within that time period, the relevant Director will be deemed to have resigned on the date that ASIC actually receives the Form 484 (which could well be a date that is long after when the practical resignation took effect).

    Prior to these changes, a failure to meet this timeframe resulted in the Company being required to pay a fee for the late notification, but didn’t negatively affect the resigning Director. In those circumstances, the task of notifying ASIC was generally left with the Company’s Accountant to carry out and the resigning Director didn’t usually have any cause for concern about whether the timeframe was met. This was because the Company was typically required to pay the late notification fee (not the resigning Director) and the resignation took effect in accordance with whichever date was specified in the notification (which means the resignation could be ‘backdated’ appropriately).

    Moving forward, resigning Directors should now carefully consider what steps they can take, to ensure that notification is given to ASIC by the Company within the required timeframe. This will allow the resigning Director to ensure their resignation takes place on the relevant date, importantly ensuring that the Director does not unintentionally remain liable in their role as a Director of the Company.

    Some recommended steps that a resigning Director could take, are to take on the onus of lodging the Form 484 (where practical) or to include additional clauses in share sale documentation (or other agreements which deal with the Director’s resignation) to impose a positive obligation on the Company to lodge the form within the required timeframe, with penalties, indemnities and releases to follow until such time as the Form 484 is submitted.

    Do you need assistance with company restructuring or officeholder resignations? Contact our expert Business Law team, led by Principal Director & Legal Advisor, Peta Gray. 

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  • Enterprise Legal | Fair Work Commission Wage Increase Announced – 2.5%

    The Fair Work Commission has just announced that the National Minimum Wage and all wages in Modern Awards will increase by 2.5%.

    The new National Minimum Wage will be $772.60 per week or $20.33 per hour from 1 July 2021.

    The increases for Modern Awards will be staggered across a select number of Awards.

    The General Retail Industry Award 2020 wages will increase by 2.5% on 1 September 2021.

    The following Awards will have their minimum wages increased by 2.5% on 1 November 2021:

    • Air Pilots Award 2020
    • Aircraft Cabin Crew Award 2020
    • Airline Operations – Ground Staff Award 2020
    • Airport Employees Award 2020
    • Airservices Australia Enterprise Award 2016
    • Alpine Resorts Award 2020
    • Amusement, Events and Recreation Award 2020
    • Dry Cleaning and Laundry Industry Award 2020
    • Fitness Industry Award 2020
    • Hair and Beauty Industry Award 2010
    • Hospitality Industry (General) Award 2020
    • Live Performance Award 2020
    • Mannequins and Models Award 2020
    • Marine Tourism and Charter Vessels Award 2020
    • Nursery Award 2020
    • Racing Clubs Events Award 2020
    • Racing Industry Ground Maintenance Award 2020
    • Registered and Licensed Clubs Award 2020
    • Restaurant Industry Award 2020
    • Sporting Organisations Award 2020
    • Travelling Shows Award 2020
    • Wine Industry Award 2020

    All other modern awards will have their minimum wages increased by 2.5% on 1 July 2021.

    Learn more about the wage increase: Join Amie Mish-Wills – Principal Legal Advisor Workplace Relations and Alistair Green – Director FocusHR on the 1st of July 2021 for the Chamber of Commerce Fair Work Legislation Update Breakfast. 

    Register Online Now

     

    The Toowoomba Chamber Fair Work Legislation Business Breakfast July 2021

     

  • Enterprise Legal | Changes to the Fair Work Act Requiring Casual Conversion

    Changes made to the Fair Work Act 2009 (Cth) earlier this year have introduced provisions to provide a pathway to permanent employment for casual employees.

    Employers now have an obligation to make an offer to convert a casual employee to either full-time or part-time employment (based on their regular work patterns) in circumstances where the employee:

    1. has been employed by the employer for 12 months; and
    1. during the last six months, has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part time employee (based on their regular work patterns).

    While the obligation does exist, an employer is not required to make an offer where there may be “reasonable business grounds” to not do so. Businesses may rely on reasonable business grounds including:

    1. the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
    1. the hours of work which the employee is required to perform will be significantly reduced in that period;
    1. there will be a significant change in either or both of the following in that period:
      1. the days on which the employee’s hours of work are required to be performed;
      2. the times at which the employee’s hours of work are required to be performed;

    which cannot be accommodated within the days or times the employee is available to work during that period;

    1. making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

    Employers will need to provide casual employees with notice of their decision to not make an offer within 21 days following the end of the employees first 12 months of employment. Any such notice should indicate that an offer will not be made and provide detailed reasons as to why.

     

    What Does This Mean For Small Businesses?

    While small businesses, being those employers who employ less than 15 employees, are not required to offer conversion to casual employees, casual employees are entitled to request casual conversion if they satisfy the grounds to do so.

     

    When Does This Come Into Action?

    A six-month transition period is in place, so employers must assess whether casual employees employed before 27 March 2021 are eligible to convert to permanent employment by 27 September 2021.

     

    If you would like assistance with these changes to casual employees, start a conversation with our dedicated Workplace Relations team:

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  • A childcare worker in Gladstone was dismissed from her role at Goodstart Early Learning (Goodstart) following her repeated refusal to get the flu vaccine, with the Fair Work Commission finding in favour of her former employer in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

     

    Background:

    Goodstart had a workplace policy requiring employees to be vaccinated against influenza, stating that vaccines were “mandatory” for employees. Despite this policy, the policy contained an exemption for employees who had medical conditions preventing the administration of the vaccine. Ms Barber repeatedly refused to comply with the policy on the grounds that she suffered from coeliac disease, had suffered an adverse reaction to a previous flu vaccine, and had a “sensitive immune system”.

    In attempting to verify Ms Barber’s claims, Goodstart offered to pay for various medical appointments, although following this process, it remained unclear whether Ms Barber was precluded from obtaining the vaccine. In fact, the Commission found that Ms Barber submitted two medical certificates from different medical practitioners, neither providing a “substantive” medical reason justifying her refusal to comply with the policy.

    Furthermore, it was noted that Ms Barber was unable to find a doctor willing to complete Goodstart’s pro forma medical certificate which required the doctor to mark a box if they believed her medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. Given that there was an absence of medical evidence to support her concerns, it was held that her refusal to obtain vaccination was more akin to a “conscientious objection” that did not excuse her from the obligation to comply with the policy.

     

    Is a Mandatory Vaccination Policy Lawful and Reasonable?

    In her continued refusal to comply with the policy, Ms Barber failed to comply with a lawful and reasonable direction to obtain vaccination. The Commission considered that Goodstart had legal obligations under workplace health and safety legislation to ensure the health and safety of the children in it’s care in addition to employees, with mandatory vaccinations being the most effective way to reduce the risk of transmission of influenza throughout the facility. The Commission also considered that the policy provided employees to be exempt from the vaccination on the provision of sufficient medical evidence, which Ms Barber was unable to do.

    The Commission were of the view that Ms Barber worked in a highly regulated industry and was in direct contact with children who did not have fully developed immune systems and were not old enough to be vaccinated. It was relevant to the Commission that the early childhood education industry has a long-standing history of requiring staff to be vaccinated against certain diseases and viruses, and that the vaccination policy implemented by Goodstart was not inconsistent with industry norms.

    In determining that Ms Barber’s dismissal was fair, the Commission drew particular attention to the careful process followed by Goodstart in that the process took a number of months and provided the employee with multiple opportunities to provide additional information and to respond to their concerns and requests.

     

    Can Other Businesses Introduce a Mandatory Vaccination Policy?

    The Commission’s decision confirmed that lawfulness and reasonableness of a direction for an employee to be vaccinated must be determined on the consideration of a number of factors, including:

    1. the type of vaccine that is involved;
    2. the type of workplace the employee works in;
    3. the nature of the industry; and
    4. the individual themselves, including whether any medical exemptions may be applicable.

    While such a direction was deemed to be reasonable in the context of early childhood education where hands-on care is provided to vulnerable members of the community, it is unlikely that the decision could be applied more broadly to other industries or workplaces.

     

    If you’re wanting to know whether such a policy would be applicable to your business or if you are considering enforcing or implementing a vaccination in your workplace, contact our dedicated Workplace Relations team today:

    Amie Mish-Wills
    Principal Legal Advisor – Workplace Relations

    Anna Fanelli
    Legal Advisor – Workplace Relations

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  • The High Court has overturned the Federal Court decisions in the WorkPac v Rossato(see our previous article: 'Proposed Changes to Casual Employment') that found that employees who worked regular and predictable shifts over an extended period were not in fact casual employees.

     

    To refresh your memory on the previous WorkPac decisions, the Federal Court had determined that Mr Rossato had been given regular and ongoing shifts and should have been classified as a permanent worker, not casual, and awarded the associated entitlements including annual leave. This decision caused panic for businesses with fears that it would open the floodgates for claims of unpaid leave, despite casual workers already being paid 25% loading to compensate for entitlements. 

    This decision provides clarity to employers who can now be satisfied they have certainty when it comes to their casual employees. The High Court expressly stated that casual employment can be long-term with a casual employee working regular and systematic hours.

     

    It was found by the High Court that for an employee to be “other than” casual, there must exist a firm advance commitment to continuing work unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability. A firm advance commitment is an enforceable promise, not an ‘expectation’ of ongoing work. Unlike the Federal Court, the High Court took the view that, where an employee’s contract is wholly in writing the terms of the written agreement are construed to determine whether a firm advance commitment exists, rather than looking to post-contractual conduct.

     

    The High Court specifically considered the following aspects of Mr Rossato’s employment agreement provided that:

    1. his hours of work “may vary” and were a “guide only”;
    2. that WorkPac was not required to offer him any assignment, and assignments could be accepted or rejected;
    3. either party could terminate on an hours’ notice;
    4. in some of his contracts, Mr Rossato had the right to refuse or cancel shifts;
    5. the payment of casual loading;
    6. that the employment was to be on a casual basis; and
    7. that any offered assignment could be varied on one hour’s notice.

    While Mr Rossato did receive his rosters far in advance, the High Court formed the view that this was of limited significance and did not provide a commitment to an ongoing employment relationship. In fact, based on the Agreement, it was clear that WorkPac had avoided making a firm advance commitment to ongoing employment.

     

    What Does This Mean For Employers?

    While this decision provides some certainty for employers, it is as important as ever for employers to review any employment agreements to ensure that employment agreements reflect a true casual engagement and that the terms are consistent with the recently introduced definition of “casual employee” in the Fair Work Act 2009 (Cth).

     

    If you’re wanting to have a chat about casual employees and whether your current agreements are up to scratch, contact our dedicated Workplace Relations team today:

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