- Employer/director gaoled for workplace death under WHS laws
In two recent decisions, 2 employers have been sentenced to gaol for WHS law breaches.
First, in Victoria, Maria Jackson, a self-employed owner of a scrap metal business, plead guilty to two charges under sections 24 and 32 of the Occupational Health and Safety Act 2004 (Vic). Ms. Jackson illegally operated a forklift (no license) and whilst operating the forklift, a bin struck a fellow employee on the head that resulted in their death. A Victorian Magistrate convicted Ms. Jackson of both charges, ordered payment of $10,000, costs and six months’ imprisonment for the offence. This a significant development in workplace law which illustrates tougher penalties being imposed on employers who fail to meet their workplace health and safety obligations.
Second, in Queensland, the director of a roofing company, Gary Lavin was sentenced to 12 months imprisonment following a worker falling 6 metres to his death as a consequence of Mr Lavin’s decision not to install handrails. His company was fined $1 million.
- New Fair Work regulations introduced to prevent employees from ‘double dipping’ – update your casual employment contracts!
The recent enactment of Fair Work Amendment (Casual Loading Offset) Regulations 2019
(Cth) prevents employees from double-dipping on their entitlements in instances where they have been incorrectly classified as ‘casuals’. The amended Regulation will allow employers, in certain circumstances, to offset casual loading paid to employees against unpaid NES entitlements that apply if the employee can prove their employment is in fact part or full time. The regulations require particular matters to be agreed in writing, and unusually allow the offset arrangement to operate retrospectively
. Accordingly, all employers should ensure their casual employment contracts are amended (or other steps are taken) to meet the regulations and minimise risk.
For more information, please view this link: Fair Work Amendment
- International employee unfairly dismissed in Australia
Canadian company, Guest Tek Interactive Pty Ltd (Guest Tek) has been ordered to pay a former employee (incorrectly classified as an ‘independent contractor’) over $17,000 in compensation for an unfair dismissal. Andrew O’Farrell relocated to Australia and began working with Guest Tek in March last year. Mr. O’Farrell’s employment was terminated the following July due to redundancy. Mr O’Farrell was not afforded the legislative right to redundancy consultation and Commissioner Riordan held that the termination was therefore harsh, unjust and unreasonable.The Commission found that the worker was award covered, giving rise to the risk of various other claims by the employee against the company.
Mr Andrew O’Farrell v Guest Tek Australia Pty Ltd  FWC 968