KNOWLEDGE CENTRE

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-What’s-actually-going-on-with-Google-and-the-Australian-Government

What’s your most visited website? If it’s Google or Facebook, you’re certainly not alone with Google accounting for more than 98% of search traffic originating from Australian mobile users in 2018. But as the discussions between the tech giants and the Australian Government over a proposed media code heats up, that all may be about to change. This week, Google has stepped up and threatened to pull Australian access to the search engine if the proposed revenue-sharing media laws go ahead. On the other hand, Australian Treasurer Josh Frydenberg has said that it is “inevitable” that tech giants Google and Facebook will pay for Australian news.

So what is actually going on?

 

The Legislation

The proposed law states that Australian media outlets can negotiate individually or collectively with Facebook and Google over payment for content used and shared on the tech giants’ sites, with other platforms potentially to be added over time. That’s right, the laws would require the companies to pay Australian media companies to link to the content in searches. Google says that this would “dismantle a free and open service that’s been built to serve everyone.”

ScoMo’s response? “We don’t respond to threats.”

 

But Why?

It’s no secret that traditional media companies in Australia have been struggling in recent years with hits to revenue streams such as subscriptions and advertising, and part of this is because of Google and Facebook. Shockingly, for every $100 spent on online advertising in Australia, excluding classifieds, nearly one-third goes to Google and Facebook.

In the course of their investigation, the ACCC found that news outlets lack bargaining power when it comes to negotiating with the tech giants over compensation for content publishing, in part because the outlets rely so heavily on Google and Facebook to reach readers.

 

What Does This Mean for Your Business?

If Google does say "cya" to Australia, it’s going to mean more than saying gday to a new search engine. It could have huge implications for your business.

 

Digital Advertising:

Many businesses (perhaps even yours) rely heavily on digital advertising through Google, with the digital advertising market for Google search in Australia valued at around $4.3 billion per year. Google now accounts for more than 51% of all online advertising. If Google is gone, the way that businesses advertise is going to have to go through a dramatic change. Your advertising dollars won’t stretch as far, as you’re going to have to channel advertising across multiple platforms.

 

Software and Hardware:

Do you use Android devices or Google Maps for your business? What about Google Docs or Google Drive? This added reliance on Google could leave your business stranded if Google decides to exit the Australian market.

 

Business Presence:

If Google were to exit the Australian market, you’re going to have to start over when it comes to establishing your online presence. Not only will you be unable to monitor Google’s content relating to your business, but you’re going to have to start over on other platforms. Think you know how to best optimise your keywords to work with Google? Well you may need to learn how the algorithm works on multiple other search engines.

 

New Opportunities

It’s not all bad news! If Google exits the Australian market, they will create space for new players to both enter the scene and increase their own business offerings. From developing new platforms to increasing existing business offerings to offer services that help in a new-Google-less world, the opportunities could very well be endless!


What Next?

At the moment as negotiations between the Australian Government,  Google, and Facebook continue, all parties are on a mission to win supporters. Google has raised the ante by including a message and link at the top of every page.

Enterprise Legal - What's actually going on with Google and the Australian Government

On the other side, the ACCC have announced that they may bring a third lawsuit against Google for misuse of market power in the advertising sector and breaching competition law and the Government have made it clear that they intend to continue the fight.

No matter what side you’re on, there probably will be huge implications for your business as the fight continues to ramp up!


Enterprise-Legal-Can_An_Employer_Direct_an_Employee_to_get_the_COVID-19_Vaccination

As discussed during our recent Workplace Relations Video, whether a private employer can direct its employees to get the COVID-19 vaccination is a complex issue, with the primary issue being whether or not an employer’s direction for staff to receive the COVID-19 vaccination is lawful and reasonable.

It is commonly understood that employers can direct their staff to do certain things as part of their employment and employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable.

 

What Makes a Direction Lawful and Reasonable?

A number of matters are considered when determining whether or not a direction is lawful and reasonable, including (but not limited to):

  • the express and implied terms of the employee’s contract of employment;
  • the nature of the employment;
  • established custom and practice in the workplace, trade or industry; and
  • the employer’s workplace health and safety obligations;
  • the employer’s duty of care;
  • the terms of relevant instruments (eg a modern award and enterprise agreement), and any applicable legislation.

Some examples of directions that might be given by an employer to an employee include a direction to:

  • participate in a workplace investigation;
  • undertake a medical examination for the purpose of assessing fitness for work;
  • comply with work health and safety laws;
  • stay away from work or work from home to prevent the risk of exposure to, or spread of a contagious illness;
  • report misconduct;
  • prioritise projects in a particular way; and
  • adhere to a dress code.

 

In the case of a direction for staff to receive the COVID-19 vaccination, whether such a direction is lawful and reasonable will vary depending on the circumstances of the employer, employee, the workplace and the industry.

 

As discussed in our video, what is reasonable in the context of an aged care facility, will differ significantly from a marketing office and understandably, one size does not fit all.

Various factors may impact the lawfulness and reasonableness of a direction for staff to receive the COVID-19 vaccination, including:

  • whether the employer’s genuine and reasonable work health and safety obligations dictate a particular response;
  • whether the employee can reasonably perform the inherent requirements of their role without being vaccinated;
  • whether the employer’s common law duties of care owed not only to the employee but their clients dictate a particular response; and
  • whether there are legislated or government-issued directions in place that require compliance.

Employers also need to be mindful of whether or not the direction constitutes discrimination or an infringement on a protected human right.

 

What if it is 'Reasonable' and the Employee Disobeys?

Breach of the implied duty of obedience is by its very nature a breach of the contract of employment, and in principle will attract the normal remedies for breach of contract. More often, employers will consider the following options in response to a failure to obey lawful and reasonable directions:  respond to a breach by either:

  • declining to take action;
  • disciplining the employee.

Before taking disciplinary action against an employee for disobeying a direction, employers should always consider:

  • Whether the direction lawful and reasonable;
  • For directions contained in a workplace policy, was the employee required to read and acknowledge the policy? Was the employee trained in the policy and was it consistently enforced?
  • Was the employee made aware of the consequences of failing to comply with the direction?
  • Would the proposed disciplinary action be proportionate in the circumstances?
  • Is the employee of long-standing with a good employment record?
  • Can adjustments be made to the employee’s role or can they be suitably redeployed into a position where the vaccination is not required?

 

As you can see, the issue of whether or not an employer can direct staff to receive the COVID-19 vaccination is not straight forward and it is important employers navigate this issue with caution.

The issue has not yet been determined by the Fair Work Commission, and the matter of Glover v Ozcare [2021] FWC 231 may shed some much needed light on the issue if it proceeds to a formal decision as the employee, in this case, was dismissed after they refused to get the influenza vaccine on medical grounds.

 

Enterprise Legal's Workplace Relations team can assist with assessing whether or not such a direction is lawful and reasonable based on your workplace, employees and industry. Our team can also assist with issuing and managing the rollout of such a direction, assisting you every step of the way.

Reach out to us today:

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A Bit of a Pickle: McDonalds Isn’t “Lovin’ It”…. We’re looking at you Hungry Jacks!

The recent introduction of a new burger has stirred some rather large beef between two iconic fast-food giants, McDonalds and Hungry Jacks.

It began with an ad campaign launched by Hungry Jacks to promote their new ‘Big Jack’ burger, a name which most members of the general public immediately compared to McDonalds’ famous ‘Big Mac’. Facebook posts prior to the release of the TV ads also claimed, “There’s something… ‘special’ about our new Big Jack” followed by a winking emoji.[1]

While most found the advertising to be comedic, McDonalds was not “lovin’ it” and took significant issue with the new burger’s resemblance to the ‘Big Mac’ and filed a claim in the Federal Court against Hungry Jacks, alleging that the Big Jack infringed McDonalds’ intellectual property. They also argued that the registration of ‘Big Jack’ as a trademark was made in bad faith.

Undeterred, Hungry Jacks has since hit back at McDonalds in their next series of recent ads, acknowledging that ‘Someone’s suing Hungry Jacks,’ but that Australians were unlikely to get the Big Jack confused with ‘some American burger’, as they claimed the Big Jack was ‘clearly bigger’. They also defended the name of the burger, saying it was intended as a play on the name of the company and a link to Jack Cowin, the founder and current owner of Hungry Jacks.[2]

Sydney chain Rashay’s also decided to jump into the mix with their Big MacJac, and were swiftly handed a cease and desist letter from the golden arches.

It is a very amusing and interesting case and to prove trademark infringement to the Federal Court, McDonalds will have to argue two points. Firstly, they will have to show that Hungry Jacks’ ‘Big Jack’ trademark is substantially identical with or deceptively similar to McDonalds’ ‘Big Mac’ trademark under section 44 of the Trade Marks Act 1995 – which will hinge on whether consumers are likely to be confused or assume a connection between the two burgers. This could be difficult to prove given the well-known rivalry between the two companies; is the average person likely to believe that a collaboration is going on between the two, or that they are the same burger?

Secondly, under section 60 of the Trade Marks Act 1995, they will have to show that the McDonalds’ Big Mac trademark has acquired a reputation in Australia and because of that reputation, consumers are likely to be deceived. Proving that the Big Mac has a reputation will be easy enough; more difficulty may arise, again, with arguing that consumers will be confused.

In addition, McDonalds has also opposed the Big Jack trademark under section 62A of the Trade Marks Act 1995, arguing that Hungry Jacks registered the Big Jack trademark in ‘bad faith’ – alleging that they showed ‘flagrant and wilful disregard’ of McDonalds’ trademarks.

This is far from the first time McDonalds has filed a lawsuit over intellectual property. In 1994, San Francisco coffee shop ‘McCoffee’ was forced to change its name after McDonalds claimed they infringed on their trademark.[3] Similarly, a restaurant in the Philippines named ‘McJoy’ was required to change their name to ‘MyJoy’ when McDonalds made the decision to expand into the country.[4]

It’s not all wins though and in 1996, a Denmark-based hotdog vendor Allan Pederson, trading under the name ‘McAllan’, successfully defeated a claim filed by the fast food giant after the court ruled that consumers were unlikely to mistake a street food stand for a McDonald’s franchise.[5] Denmark was clearly not “lovin’ it”. 

So how will the matter of the Big Mac v Big Jack be settled? Presently, the judge presiding over the case, Justice Burley, has moved the case to mediation and given McDonalds’ history of litigation over trademarks, it’s unlikely they’ll agree to meat in the middle and this will continue to be an interesting case to watch in 2021.

Be sure to follow Enterprise Legal for further updates and if your business would like to know more about protecting your intellectual property then let's talk:

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Sources:

[1] https://www.news.com.au/finance/business/other-industries/mcdonalds-sues-hungry-jacks-for-big-mac-burger-lookalike-big-jack/news-story/1348c77e5ac6d698529af2355693526f

[2] https://www.smh.com.au/national/mcdonald-s-moves-to-supersize-lawsuit-against-hungry-jack-s-20201002-p561bx.html

[3] https://www.mcspotlight.org/media/press/littlepeople.html

[4] https://www.marketwatch.com/story/philippine-supreme-court-upholds-mcdonalds-trademark-rights

[5] https://web.archive.org/web/20151019134933/http:/www.mcspotlight.org/media/press/ap_4dec96.html