KNOWLEDGE CENTRE

Safe Work Month – Does Your Business Stack Up?

October is Safe Work Month and is an important time for businesses to review their Workplace Health and Safety procedures and processes and to reflect on the safety of their staff and workplaces.


Whatever the industry or workplace, every organisation can join Safe Work Month and take steps to keep people safe and healthy at work, including:  

  • Being informed: Staying up to date with the laws, rules and regulations that apply and create the duties and responsibilities of employers, employees and contractors. It is vital that both employers and employees take steps to stay informed and up to date;
  • Auditing Hazards and Risks and implementing risk/hazard mitigation strategies: Identifying hazards and risks is a key step for both employers and employees and involves finding thing or situations that may cause harm. Once a hazard or risk is identified, it is imperative that steps be taken to minimise or remove the risk or hazard. Risk and hazard assessments should be conducted regularly;
  • Training and consultation: Employers and employees must all work together to ensure the safety and wellbeing of others and the workplace. It is vital that staff be trained and consulted with every step of the way and includes being involved when identifying hazards and assessing the risks that the work or workplace present and when proposing changes to the workplace which may affect WHS; and
  • Being prepared for emergencies: Employers need to have plans and processes in place to appropriately respond to emergencies, injuries and incidents in the workplace. This includes (but is not limited to) having staff trained in fire and emergency management, having procedures in place for incident/injury reporting and return to work management;
  • Keeping staff wellbeing front of mind: Employers and employees need to remember that safe workplaces isn’t just about injuries and incidents, it also includes staff health and wellbeing. It is important to remember that everyone’s physical and psychological wellbeing should also be a priority.


There are a wide range of free resources available through WorkSafe Queensland and Safe Work Australia and at Enterprise Legal, we have a dedicated Workplace Relations team that is here to assist and keep your workplace safe and informed.


If you would like to discuss how we can assist you with your Workplace Health and Safety obligations, contact EL's Principal Workplace Relations Advisor Amie Mish-Wills:

☎️ (07) 4646 2425

✉️ Submit an Online Request


The Devil Is In The Detail - When Workplace Redundancy Alternatives Just Don't Cut It

An employer has been ordered to pay full redundancy entitlements to employees despite offering them other employment arrangements.

 

The recent decision of Lee Crane Hire Pty Ltd v Sneek and Ors [2020] FWC serves as an important example of when an employer will be required to pay redundancy entitlements to employees, despite offering them alternative means of employment.

 

What the Fair Work Act 2009 (Cth) Says:

Section 120 of the Fair Work Act provides a mechanism for employers to apply to vary the amount redundancy pay owing to an employee (which may be reduced to nil) in circumstances where the employer obtains other acceptable employment for the employee (and they reject it) or the employer simply cannot pay the amounts owing.

 

What is ‘Other Acceptable Employment’?

If an employer is able to prove that it offered an employee other acceptable employment and the employee rejected such employment and sought payment of their redundancy entitlements instead, an employer could request the Fair Work Commission reduce the redundancy pay potentially to nil.  

The onus of proving that the alternative employment is acceptable rests with the employer. There is a body of case law which has set the bar particularly high and involves consideration of a range of non-exhaustive factors including, pay levels, hours of work, seniority, fringe benefits, workload, job security, work location, continuity of service, accrual of benefits, probationary periods, as well as the employee’s skills, experience and physical capacity. The location of the other employment must also not be unreasonably distant from the employee’s original place of work.

 

So What Happened in Lee Crane v Sneek?  

Lee Crane v Sneek is a prime example of how the Fair Work Commission assesses ‘other acceptable employment’ and is a cautionary tale for employers, particularly those who may wish to offer casual or far away employment to soon-to-be redundant employees. Here’s what happened:  

  • Lee Crane Hire operates a mobile crane hire business in Gladstone and operates another depot at Biloela (121kms inland from Gladstone). There had been a downturn in business of the Gladstone Depot such that the business could no longer guarantee full time work to the employees based at the Depot. The owner of the business decided to close the Gladstone Depot and operate all his business through the Biloela depot.
  • Employees Sneek, Wiemers and Kennedy worked at the Gladstone depot and were offered two alternatives to a redundancy:
    1. continue in the same role, but be based out of Biloela and Gladstone with the only Depot being in Biloela. This option would include payment for time spent travelling to work and accommodation, the same hours of work, a company vehicle supplied, the same salary and leave entitlements. Additionally, as the role was the same mobile crane operations role, the travel to different sites would be largely unchanged; or
    2. to take on casual employment for Lee Crane Hire in Gladstone, this would involve the employees performing the same work, however there would be no guaranteed hours of work.
  • Sneek, Wiemers and Kennedy declined the above options and were terminated on the 31st of March 2020.
  • Lee Crane Hire filed an application in the Fair Work Commission seeking the redundancy pay of Sneek, Wiemers and Kennedy be reduced on the grounds that it offered them ‘other acceptable employment’.
  • When assessing the alternatives offered to the employees, the Fair Work Commission viewed both alternatives in the negative, and stated: 
    • [29] It is the devil’s alternative: move to a new location some 121kms away and incur a practical detriment on a continuous basis or, keep your job, but as a casual with no assurance of work in an evidently declining market. This should not be classified as acceptable alternative work that would release the employer from their obligation to pay out a redundancy entitlement. In short, the travel to Biloela makes the options, in line with the authority cited, unreasonably distant.
    • [35] My considered view is that the two employment options offered by Lee Crane Pty Ltd are not ‘acceptable other employment’ for the purpose of s.120(1)(b)(i) of the Act.

Ouch.

  • Lee Crane Hire were ordered to pay Sneek, Wiemers and Kennedy their full redundancy entitlements which equalled 16, 12 and 7 weeks respectively.

Triple ouch.

What’s the lesson?

Employers need to tread very carefully when navigating redundancies and further, they need to ensure that any offers for other employment are indeed ‘acceptable’ based on the Fair Work Commission’s assessment criteria.

 

It goes without saying that if you are wondering if your redundancy process is correct or you are wishing you had some expert assistance to ensure your redundancy alternatives are not labelled “the devil’s alternative”, do not hesitate to contact Enterprise Legal’s Principal Workplace Relations Advisor, Amie Mish-Wills:

☎️ (07) 4646 2425

✉️ Submit an Online Request


Building Industry Fairness of Payments Act Amendments and Registration of Charges

Provisions of the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (Qld) (the Act) will take effect on 1 October 2020, introducing significant payment security reforms.

In particular, the Act introduces a new remedy for head contractors that have not been paid an adjudication debt by a principal/client following the filing of an adjudication certificate. This remedy allows a head contractor to request a charge over the property on which construction work was carried out where:

  • the construction work or related goods and services relate to the adjudicated amount; and
  • the principal/client, or a related entity, is the registered owner of the property.

Importantly, this charge is lodged with the registrar of titles and is to exist for 24 months after registration unless discharged, set aside, or the adjudicated amount is paid.

Additionally, a head contractor is able to enforce the charge by application to the Court for orders that the property is sold, which will authorise the sale of the property free of all encumbrances and will have effect regardless of any encumbrances. The Act defines ‘encumbrance’ to mean:

  • a mortgage, lien or charge over the property;
  • a caveat claiming interest over the property by way of security; or
  • a writ affecting the property.

This mechanism means that a head contractor is able to apply to have the property sold, even if there are prior encumbrances.

On settlement of sale of property ordered by the Court, sale proceeds would be applied in the following order:

  • first – payment of sale costs and the head contractor’s costs in seeking the sale;
  • second – payment of amounts to satisfy any registered encumbrances, including the charge registered by the head contractor, in the priority order under the Land Title Act 1994 (Qld); and
  • third – payment of any balance to the registered over of the relevant property or to another at the discretion of the owner.

This is a very powerful tool available to head contractors because it provides them with practical, relatively straightforward and economical leverage to force compliance by principals/clients or risk serious ramifications that typically otherwise only eventuates in very limited circumstances.

To avoid any charges being registered and enforced, principals/clients should ensure that any adjudication amounts are paid as a matter of priority. Under the Act, payment must be made 5 business days after the adjudicator’s decision, or a later date if decided by the adjudicator, so it is important that principals act quickly to prevent the registration and enforcement of potential charges.

 

Need further clarification? Enterprise Legal are Toowoomba's construction law experts - make a time to see us today:

☎️ (07) 4646 2621

✉️ Submit an Online Request


Reduction in Employee’s Hours = Redundancy Pay?

The recent decision in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 highlights the risks employers will face if they reduce the hours of their employees without consent.

Broadlex, a cleaning company, experienced a downturn in business which triggered it to advise full-time employee, Ms Vrtovski, that her employment status would be reduced from full-time to part-time, reducing her hours from 38 hours per week to 20 hours per week (with a proportionate reduction in salary).  

Ms Vrtovski declined to sign a form consenting to the change but nevertheless worked the reduced hours as she felt she had no choice. She later filed a dispute and upon examination, Justice Katzmann of the Federal Court of Australia held that Ms Vrtovski was entitled to redundancy pay on the grounds that:

1. Section 119 of the Fair Work Act 2009 (Cth) confirms that a redundancy requires:

  • the employee’s employment to be terminated
  • the termination to be done at the employer’s initiative because it no longer requires the job to be done by anyone.

2. by reducing Ms Vrtovski’s hours without consent, Broadlex had repudiated her contract of employment, which was accepted by her when she refused to sign the consent form. This, in turn, had the effect of terminating Ms Vrtovski’s full-time employment and when she commenced working on a part-time basis, she did so under a new contract of employment;

3. as the termination of Ms Vrtovski’s employment was initiated by Broadlex (when they changed her employment to part-time), who did not require her full-time role to be done by anyone, Ms Vrtovski’s circumstances met the requirements of section 119 and she was therefore entitled to redundancy pay.

 

Lesson for Employers 

The decision in Broadlex serves as an important reminder that employers need to be very careful when making changes to an employee’s employment.

 

If you find yourself in a situation where you are considering making similar changes within your business, we encourage you to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills for advice & support:

☎️ (07) 4646 2425

✉️ Submit an Online Request