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Focus: Employment & Safety

4 September 2017

In this issue: we look at the Fair Work Commission's support for unpaid domestic violence leave and casual conversion clauses; an unfair dismissal following a breach of a zero tolerance drug and alcohol policy; proposed WHS amendments in Queensland; and another enterprise agreement is terminated.

FWC signals support for unpaid domestic violence leave

In brief: The Fair Work Commission has made a preliminary determination that all modern awards should include an entitlement to unpaid family and domestic leave. Senior Associate Tarsha Gavin reports.

 
 

How does it affect you?

  • Pending a final decision of the Fair Work Commission (FWC), employers may be required to provide award-covered employees with unpaid family and domestic violence leave.
  • Employers may also be required to provide paid personal/carer's leave to employees in a broader set of circumstances, including where they need to access that leave for family and domestic violence reasons.

Decision

As part of the FWC's four-yearly review of modern awards, the ACTU applied to introduce a 10-day paid family and domestic violence leave entitlement in all modern awards.

A FWC full bench rejected the ACTU's proposal. However, two commissioners came to the preliminary view that:

  • an unpaid family and domestic violence leave entitlement should be included in modern awards; and
  • employees should also be able to access personal/carer's leave for the purpose of taking family and domestic violence leave.

In reaching this view, the commissioners considered the modern awards objective in the Fair Work Act. The commissioners acknowledged that family and domestic violence is a significant community issue and that there needs to be a workplace response to this issue. However, they decided that the ACTU had not made out a case that 10 days of paid leave was necessary to meet the modern awards objective. They instead determined that a protective unpaid leave clause would be sufficient. They also concluded that the ACTU's draft paid leave clause was too broad and uncertain in its scope, signalling that any unpaid leave clause would need to be more certain in its scope and application.  

Next steps

Following the decision, the FWC has sought submissions from interested parties on the FWC's preliminary view. The FWC has indicated that it is likely to provide a draft model clause for consideration. Factors including the numbers of days of leave, the circumstances in which the entitlement will be available to employees, and the evidence that will be required, will no doubt need to be determined before a model clause can be prepared.

Tolerance required for breach of zero tolerance drug and alcohol policy

In brief: The Fair Work Commission has concluded that a shipping company unfairly dismissed a captain for failing a random alcohol test. Managing Associate Andrew Stirling and Lawyer Christina Badgley report.

 
 

How does it affect you?

  • Dismissals for breaches of zero tolerance drug and alcohol policies may still be unfair.
  • Drug and alcohol policies should be clear about when an employee commences work and when testing may occur.
  • Workplace investigations should be properly finalised, with final decisions conveyed to all employees involved. 

Background

On 5 October 2016, Captain Rust had consumed several full strength beers before a swing on Farstad Shipping's Far Scimitar. He later said this was to calm down his feelings of anxiety.

Before breakfast the next morning (6 October 2016), Captain Rust was randomly selected by a third-party contractor to undertake a breathalyser test under Farstad Shipping's Drug and Alcohol Policy. The test confirmed he had a blood alcohol concentration of 0.044.

The breathalyser test followed an ongoing workplace dispute between Captain Rust and the Far Scimitar crew, which included:

  • In 2014, a dispute relating to work arrangements, following which Captain Rust was suspended. An external investigation determined that a crew member's complaint was substantiated, but that Captain Rust had not breached his safety obligations or behaved inappropriately.
  • Captain Rust being diagnosed with depression, prescribed anti-depressants and returned to duty. After only a short time back on duty, he took leave to deal with stress from the investigation.
  • After returning from leave, Captain Rust was verbally abused and lunged at by a crew member. Although he reported the incident, there was never an effective resolution of the problem or a response to this report.
Decision

The Fair Work Commission examined Farstad Shipping's policies, including the Drug and Alcohol Policy, the zero tolerance Fit for Work Policy and the Code of Conduct. It determined that Captain Rust breached all of them by failing to be fit for duty. As a result, the FWC concluded that Farstad Shipping had a valid reason to dismiss Captain Rust.

However, the Commission decided that the decision to dismiss Captain Rust was harsh, because:

  • Captain Rust was an experienced Master with an exemplary record with Farstad;
  • he had worked for Farstad Shipping for 16 years;
  • he was 61 years old and the sole income earner for his family; and
  • Farstad failed to close off the 2014 incident.

Farstad Shipping successfully argued that reinstatement was not an option, as they had lost trust and confidence in Captain Rust. The FWC invited the parties to make submissions about how much compensation he should be awarded. 

Modern awards to include casual conversion clause

In brief: The Fair Work Commission proposes to insert a model casual conversion clause into 85 modern awards, expanding the rights of casual employees to request permanent employment. Associate Laura Miller and  Lawyer Emma Veljkovic report.

 
 

How does it affect you?

  • Long-standing casual employees across a broad range of industries may soon have the right to request conversion to full-time or part-time employment.
  • If the model clause is adopted as proposed, employers may lose some flexibility in the way they structure their workforce. The practical effect of this decision will depend on how many employees are willing to accept lower remuneration in exchange for the benefits of permanent employment.

Background

Clauses that gave casual employees a right to apply to convert to part-time or full-time employment were a feature of a number of pre-modernisation awards in the state jurisdictions, and are currently a feature of a handful of modern awards. 

As part of the Fair Work Commission's (FWC) four-yearly review of modern awards, the ACTU applied for the inclusion of a model casual conversion clause in all modern awards.

Key features of the decision

The FWC accepted that it is necessary for modern awards to contain a casual conversion clause. Its explanation was that this ensures the ongoing fairness and relevance of the safety net terms and conditions contained in modern awards and the National Employment Standards.

The FWC has developed a model casual conversion clause. The key features of the model clause are that:

  • a casual employee will be eligible to request to convert to permanent employment only if they have worked a regular pattern of hours for their employer over a period of 12 calendar months;
  • employers may only refuse such requests on reasonable grounds (eg the conversion would require a significant adjustment to the casual employee's hours of work, or it is known or reasonably foreseeable that the casual employee's position will cease to exist); and
  • employers are required to provide all casual employees with a copy of the casual conversion clause within 12 months after commencement.

The FWC also stated that an employer's refusal to accept a conversion request should be made only after consultation with the employee, that an employee should receive written notice and reasons for the refusal, and should be entitled to access the modern award's dispute resolution procedure to challenge a refusal.

Queensland proposed WHS amendments

In brief: The Queensland Government has introduced a Bill to make significant amendments to the Work Health and Safety Act in Queensland. Managing Associate Andrew Stirling reports on the key proposed changes.

 
 

How does it affect you?

  • The Bill proposes some reasonably significant departures from the model WHS laws.
  • The Bill would impose new duties (compliance with codes of practice) and a new category of offence (industrial manslaughter).

Key proposed changes commencing immediately once the Bill becomes an Act
  • Industrial manslaughter – A new category of offence will be introduced called 'Industrial Manslaughter'. Persons conducting a business or undertaking (PCBUs) and their 'executive officers' (for corporations, a person who is concerned with, or takes part in, the corporation’s management) may be guilty of this category of offence if:

(a) a worker dies while carrying out work in the business;

(b) the PCBU's/executive officer's conduct causes the death; and

(c) the PCBU/executive officer is negligent about causing the death of the worker by the conduct.

The maximum penalties are 20 years' imprisonment for an individual and $10 million for a corporation. The same offence will also be inserted into the Electrical Safety and Recreational Water Activities Acts.
  • WHS undertakings – The regulator will not be allowed to accept WHS undertakings for category 1 offences, category 2 offences that involve a fatality, or for industrial manslaughter.
Key proposed changes commencing on 1 July 2018
  • Compliance with codes of practice – PCBUs will now be under an express duty to comply with codes of practice. Non-compliance will be an offence.
  • Health and safety representative training – PCBUs will need to ensure that HSRs have completed training prescribed by regulation.
  • Reintroduction of WHSOs – The Bill would reintroduce the role of work health and safety officer (WHSO), with accompanying rights for the WHSO and obligations for the PCBU. PCBUs will not be obliged to appoint WHSOs, but a court can take the appointment of a WHSO into account in any prosecution for breach of the Act.
  • Enhancement of inspectors' powers – Inspectors will be empowered to require persons to provide documents and answer questions provided the inspector, or another inspector, has attended the relevant workplace in the past 30 days.
Amendments commencing on a day to be fixed by proclamation
  • New means of resolving WHS disputes – The Queensland Industrial Relations Commission will be empowered to deal with disputes about certain WHS matters by means of mediation, conciliation or arbitration.
  • Inspectors may give right of entry directions – Inspectors will be empowered to resolve right of entry disputes by issuing PCBUs with a written direction to immediately allow WHS entry permit holders to enter a workplace.
  • Establishment of WHS Prosecutor – The WHS Prosecutor will be responsible for prosecutions under the Act. The regulator will cease to have responsibility for prosecutions, other than for category 3 offences with the WHS Prosecutor's authorisation.

Another enterprise agreement is terminated

In brief: Murdoch University will continue enterprise bargaining after successfully applying to the Fair Work Commission to terminate its enterprise agreement. Managing Associate Andrew Stirling and Law Graduate Rose Bricknell report.

 
 

How does it affect you?

  • More employers have been terminating their existing enterprise agreements if bargaining for a replacement agreement has been protracted and reached a stalemate.
  • The termination of nominally expired enterprise agreements during bargaining for a replacement agreement has been controversial, with the trade unions pushing for the law to be revised. 

Background

Murdoch University had an enterprise agreement covering approximately 3500 academic and professional employees. The agreement's nominal expiry date was 30 June 2016.

Before the nominal expiry of the agreement, the University commenced bargaining with the NTEU, CPSU and United Voice for a replacement agreement.

In July 2017, after more than a year of unsuccessful bargaining, the University applied to terminate its existing enterprise agreement. In making that application, the University undertook to maintain a number of the terms and conditions prescribed in the enterprise agreement for a period of six months.

Decision

The Fair Work Commission (FWC) accepted the University's application and terminated the agreement, effective 26 September 2017.
In making this decision, the FWC had regard to:

  • the effect of the proposed termination on the University, the employees and the trade unions;
  • the views of the parties regarding the proposed termination; and
  • the parties' genuine desire to negotiate a new agreement.

Matters that the FWC seemed to find especially compelling in support of the termination application included:

  • no consensus appeared to be possible on a number of matters that were fundamental to the parties;
  • in the FWC's view, the balance of the negotiating power for the majority of the bargaining process had been held by the trade unions. Since the University was seeking to amend certain clauses of the existing enterprise agreement, the status quo effectively favoured the trade unions; and
  • bargaining for a replacement agreement had been ongoing for an unusually extended period, which meant that the Agreement had continued to operate well past the nominal expiry date.

The unions argued that termination of the agreement was unnecessary to resolve the impasse in bargaining. However, the FWC's opinion was that termination of the Agreement would promote further bargaining, refocus negotiations and increase the chance of approving a new enterprise agreement. In forming that view, the FWC noted that any negative consequences to the employees and trade unions were reduced by the University's undertakings and that employees retained the right to take protected action and bargain collectively.

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