9 November 2018
In this issue: we look at changes to Victorians' long service leave; an unfair dismissal case; expectations vs reality for workplace safety; and the distinctions that matter when using Latin abbreviations.
- Changes to long service leave in Victoria
- A fait accompli: employee unfairly dismissed by labour-hire company
- Farm operator guilty after fatal dingo chase
- i.e. versus e.g.: interpretation of enterprise agreement not ultra-literal
In brief: From 1 November 2018, new legislation1 governs long service leave in Victoria. The law introduces significant changes that will have practical implications for employers. Senior Associate Stephanie Burn reports.
How does it affect you?
|review current policies to ensure they are consistent with the new legislation;|
|review current long service leave balances to ensure business needs will be covered if an employee with close to seven years' continuous employment takes their long service leave;|
|review current payroll/HR systems to ensure leave accruals are accurately calculated and recorded (particularly to avoid interest charges and penalties for non-compliance); and|
|ensure employees who take unpaid parental leave from 1 November 2018 accrue long service leave for up to one year.|
While the new legislation does not alter accrual rates, several changes to long service leave in Victoria will have practical implications for employers:
- most noticeably, employees are able to take long service leave after seven years' continuous employment instead of 10 years, and are able to take one day at a time;
- unpaid parental leave of up to one year is counted towards an employee's period of continuous employment for the purposes of calculating long service leave. Employment is also continuous if the employee is re-employed within 12 weeks of termination due to dismissal by the employer, resignation by the employee, a specified term contract expiring or the completion of an apprenticeship; and
- if an employee’s ordinary hours of work go up and down in the two years before they take long service leave, their pay during the leave will be based on the greater of the average hours they worked in the preceding 12 months, the preceding five years, or over their entire period of employment with the employer.
In addition to the legislation that commenced on 1 November 2018, other legislation commencing in mid-2019 will give workers in the community services, security and contract cleaning sectors access to portable long service leave benefits.2 Workers in those sectors will be eligible for long service leave after seven years working in the industry, irrespective of the number of employers they have during that time. We will provide a comprehensive update on this legislation closer to the time.
- Long Service Leave Act 2018 (Vic).
- Long Service Benefits Portability Act 2018 (Vic).
In brief: The Fair Work Commission has criticised a labour-hire company for dismissing a casual employee at the direction of a host company, without asking why. Senior Associate Stephanie Burn and Associate Emma Veljkovic report.
How does it affect you?
|If requested or directed by a host company or client to remove an employee from a site or assignment, employers should make enquiries about the reason before taking any action.|
|If a dismissal is unfair, the Commission is willing to order reinstatement even where it might result in the employee ultimately being dismissed for another reason.|
Ms Star, a casual employee of labour-hire company WorkPac Pty Ltd, had worked a regular full-time roster for four years as a machinery operator at BHP Billiton Mitsubishi Alliance's Goonyella Mine. Without giving a reason, BMA told WorkPac it no longer required Ms Star's services.
Without asking BMA why it no longer required Ms Star, WorkPac told Ms Star that her position was 'demobilised' and that her casual assignment had ended.
Ms Star claimed she had been unfairly dismissed and sought reinstatement.
As to whether Ms Star was dismissed, WorkPac said that an ongoing employment relationship existed after the assignment at the Goonyella Mine ended, and that Ms Star ended the employment relationship by expressing disinterest in other assignments. The Commission disagreed with this, and decided that Ms Star was employed 'on an assignment by assignment basis' and that her employment ended at WorkPac's initiative when her assignment ended.
The Commission rejected WorkPac's argument that the reason for her dismissal was its inability to find her another role. The Commission decided that BMA had probably directed Ms Star's removal from the site because of her conduct, which was not a valid reason for her dismissal by WorkPac. WorkPac immediately dismissed Ms Star, before trying to find her another role and before making enquiries with BMA.
In deciding that the dismissal was unfair, the Commission emphasised that labour-hire companies cannot simply rely on directions from host companies when dismissing employees. It was no defence to Ms Star's claim that WorkPac was complying with BMA's direction. Further, WorkPac did not notify Ms Star of the reason for her dismissal, nor did it give her an opportunity to respond.
Interestingly, despite acknowledging that reinstating Ms Star might result in her further dismissal if BMA did not allow her back on site or that she might be forced to accept an alternative role, the Commission was willing to reinstate Ms Star at the Goonyella Mine.
Reference: Ms Kim Star v WorkPac Pty Ltd T/A WorkPac Group  FWC 4991
In brief: The NSW District Court decided that a farm operator was guilty of failing to provide a safe work environment after a worker died chasing a dingo. Senior Associate Tegan Ayling and Lawyer James Daniel report.
How does it affect you?
This case is a reminder that:
|when fulfilling their duty to provide a safe workplace, companies need to expect that workers will be careless, inattentive or inadvertent;|
|it is not enough to make safety equipment available: policies must be implemented and enforced to ensure the equipment is actually used by workers; and|
|systems setting out how safety risks will be controlled should not only be written down but should be actively communicated to workers.|
Mr Staker worked for KD & JT Westbrook Pty Ltd on a farm in north western NSW as a sheep musterer.
On 22 September 2014, Mr Staker was mustering sheep on a motorbike with Mr Killeen and Mr Hill. Mr Killeen was also on a motorbike. Mr Hill, Mr Staker's superior, was operating a gyrocopter to muster the sheep.
During the muster, Mr Hill radioed to Mr Staker and Mr Killeen that there were two dingos near the gyrocopter. Both Mr Staker and Mr Killeen then began to separately chase the dingos. It was the policy at the farm that if dingos were seen they would be chased and killed. While chasing the dingo, Mr Staker, who was a competent motorbike rider, fell from his bike and was killed. He was not wearing a helmet.
Westbrook pleaded not guilty to breaching work health and safety legislation and exposing Mr Staker to a risk of death or serious injury.
The District Court decided that Westbrook had failed to comply with its duty to provide a safe workplace. Although the company had made helmets available to the workers, they needed to put policies in place to make sure the helmets were used. Wearing a helmet could not be left to the choice of the individual worker. The company also needed to provide information to the workers of the risks.
Westbrook argued, among other things, that chasing dingoes was not part of mustering and that Mr Staker was riding the motorbike dangerously and for his own enjoyment. This meant he was not at work in the business at the relevant time. Further, wearing a helmet while mustering was not reasonably practicable.
It was decided that workers had previously been instructed to chase away dingos due to the risk they posed to livestock and that this was an integral part of the work. For this reason, the duty to provide a safe workplace still applied while Mr Staker was chasing the dingo. Although the Court did not agree that Mr Staker was riding dangerously, it said that the duty would have also applied if Mr Staker was riding his motorbike at high speeds – careless worker behaviour must be considered in providing a safe workplace. Lastly, although helmets were not an ideal solution particularly in hot weather, it was a reasonably practicable step evidenced by Westbrook introducing a policy requiring workers to wear helmets and implementing this at minimal cost.
Westbrook was found guilty and a sentence is yet to be imposed.
Reference: SafeWork NSW v KD & JT Westbrook Pty Ltd  NSWDC 255
In brief: An employer's misunderstanding of Latin has had harsh consequences for it in the interpretation of an enterprise agreement. Associate Victoria Eastwood reports.
How does it affect you?
|A reminder that small words and phrases in an enterprise agreement can make a difference in the meaning of its terms.|
|It may not be enough to show evidence of prior negotiations to support why certain clauses in an enterprise agreement were included.|
|The fact that no one has ever raised any issues in relation to the interpretation of an enterprise agreement will not necessarily stop a person raising an issue later in time.|
One Friday afternoon before 4pm, Qube Ports notified some of its employees about a 10 hour shift starting on the Sunday, in accordance with the terms of the relevant enterprise agreement. On the Saturday before 2pm, the employees were notified of a change to the start time and the shift duration (which increased to 12 hours). At the 'toolbox' meeting at the start of the Sunday shift, the manager discussed the duration of the shift with the employees and confirmed it was to be 12 hours.
Following that meeting, seven employees said they were unable to extend the shift to 12 hours, and left the site after completing 10 hours of work. They subsequently received formal written warnings from Qube for leaving the site without authorisation and refusing a lawful and reasonable direction to complete the shift.
The CFMMEU argued that the warnings were not valid because the employees had not be validly notified of the extension to the shift in accordance with the terms of the enterprise agreement, which provided that notification to work on the weekend 'may be confirmed, varied or cancelled (ie, change to shift start time or cancelled) by 1400 hours Saturday.' The CFMMEU submitted that the Latin phrase 'ie' means 'that is', which meant that the only permitted variations were either a change to the shift start time or a cancellation.
Qube argued this was an 'ultra-literal' interpretation and stated that the words 'ie' were intended to be 'eg' and quoted the Editor-at-Large of the Merriam Webster Dictionary – 'The most looked up abbreviations in our online dictionary are i.e. and e.g., probably for the simple reason that they are so often confused for one another'.
The Commission decided there was no ambiguity in either of the phrases. The CFMMEU's interpretation was simply the plain meaning of those phrases. It was also correct when considering the particular clause in the context of both the clause as a whole, and the enterprise agreement as a whole.
The history of the bargaining process was also raised, but the Commission decided that evidence of prior negotiations did not assist in this case.
Qube raised that in the context of one of its other sites, its practice was to treat any alterations to the start time of a Sunday shift (notified on a Saturday) as a variation (not a shift extension, which was dealt with via a separate clause in the enterprise agreement). The Commission said that the mere fact that no claim was made under an earlier instrument is not enough. Qube's argument on that point was not accepted.
Reference: CFMMEU v Qube Ports Pty Ltd  FWC 5537
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