First WHS conviction for failing to consult

The South Australian Industrial Relations Court has recorded the first conviction against a company for failing to comply with the duty to consult, cooperate and coordinate activities with other duty holders in relation to work health and safety matters.

A trainee and apprentice placement organisation, Trainee and Apprentice Placement Services Inc. (TAPS), was fined $12,000, a fraction of the potential maximum penalty of $100,000, for breach of consultation obligations (for a corporation) under the Model Work Health and Safety (WHS) Act.

TAPS had placed an apprentice in a position with a roofing company.  In January 2014, while working for the roofing company at a construction site, the apprentice suffered “horrific injuries” when a section of guttering he was handling came into contact with power lines.

Obligation to consult

TAPS was prosecuted under section 46 of the Work Health and Safety Act 2012 (SA), a provision which is replicated in all other Australian States and Territories that have adopted the model WHS legislation (i.e. all States and Territories other than Victoria and Western Australia). That provision states:

“If more than one person has a duty in respect of the same matter under this act, each person with a duty must, so far as is reasonably practicable, consult, cooperate, and coordinate activities with all other persons who have a duty in relation to the same matter.” (Emphasis added.)

Interestingly, while other entities were charged with safety breaches after the incident, TAPS was the only entity to be prosecuted for breach of the consultation duty where the construction company in charge of the site had gone into liquidation.

The Industrial Magistrate found that TAPS had an awareness of WHS issues and undertook certain measures to comply with its WHS duties (for example, visiting each of its host employers every 8 weeks). However, the Court also found that TAPS had not engaged in a consultation process with the roofing company about its WHS policies and procedures and admitted that an audit it had conducted on the roofing company’s operations prior to the incident was inadequate. The Court accepted evidence there were no safety measures in place at the site, despite it being a high risk environment.

Penalty

The Industrial Magistrate applied a significant reduction to the penalty imposed on TAPS for breach of section 46 because it had entered an early guilty plea, acted swiftly to comply with improvement notices, spent around $70,000 improving its safety systems to ensure that it complied with its consultation obligation in the future and had provided substantial ongoing support to the injured apprentice after the incident.

Turning attention to consultation

The Court’s decision should serve as a reminder that the consultation obligations in WHS legislation must not be overlooked. This decision is of particular importance to organisations responsible for placing workers with host employers or on client sites to perform their primary work. Consultation with other duty holders should form a standard compliance measure in any engagement, placement or audit process. Failing to comply with consultation duties can lead to significant penalties and safety convictions recorded against the company.

Aside from statutory compliance, failing to consult with other parties may prevent an employer from obtaining all of the information required to make a proper assessment about safety. Consultation with concurrent duty holders is essential to an employer being able to discharge its primary WHS obligations, where these duties can never be entirely delegated to a third party.

Boland v Trainee and Apprentice Placement Service Inc. [2016] SAIRC 14 (27 May 2016)

Fair Work Commission finds that performance management is not bullying

The Fair Work Commission has rejected an employee’s claim that she was bullied because she was performance-managed, finding that the performance management was “reasonable management action undertaken in a reasonable manner”, even where the organisation had failed to effectively performance manage its employees in preceding years.

Background

The employee was working as a case worker consultant for The Salvation Army’s Employment Plus job seeking service. In this role, the employee was required to assist job seeker clients in becoming “job ready” and obtaining employment. These job seekers were classified into four streams depending on their job readiness.

The “consultant” job description that applied to the employee required that consultants service all four streams of job seekers. However, the employee had historically specialised in servicing only “Stream 1” job seekers with low barriers. She objected to a direction in mid-2014 that she service other streams, and particularly “Stream 4” clients with multiple barriers to employment, such as homelessness, substance abuse, or mental health issues.

Performance review reasonable, even where PM systems new

In her 2014 performance review, the employee’s performance was assessed as “not meeting all requirements” in relation to some performance criteria, notably in relation to the employee’s refusal to service Stream 4 clients. The employee claimed that the performance management process amounted to bullying because it was unreasonable, in particular because the requirement to service Stream 4 clients amounted to an unreasonable change to her job, and she did not feel safe working with this stream of clients.

The employee also claimed that her performance had been hindered by various increases to her workload, including on account of high staff turnover during 2014 and changes to the employer’s booking system.

In evidence, the employer admitted that there had been a failure in the past to assess individual performance effectively,  and that changes in 2014 aimed to improve staff management and efficiency.  However, Commissioner Tim Lee found that while the introduction of individual performance management amounted to “a significant change” for the employee, he accepted that, on the evidence, “the manner in which it has been introduced or administered does not appear to be unreasonable”.

Change to duties reasonable because of job description

It was also accepted that until mid 2014 the employee had been required to service only Stream 1 job seekers.  However, in considering the employee’s position description, Commissioner Lee found that requiring the employee to perform her role in accordance with the position description (which clearly required her to service all streams of job seekers), “could hardly be said to constitute bullying behaviour”.

The Commission also did not accept that the employee had an unreasonable workload or that requiring her to work with Stream 4 job seekers would result in a risk to her health and safety.

Reasonable management action undertaken reasonably

This decision confirms that performance management undertaken reasonably (and with regard to the employee’s position description) will not constitute bullying.  It is also a useful example for employers looking to introduce new performance management programs or more strictly apply existing performance criteria.  While these management actions may result in a significant change in the working environment , they will not necessarily amount to bullying where the method of implementation is reasonable.

The Fair Work Commission releases an updated Anti-bullying guide

The Fair Work Commission has released an updated version of its “Anti-bullying Benchbook” to assist parties lodging or responding to bullying claims made to the Commission.

The information book was first published in January 2014 when the Fair Work Act anti-bullying provisions commenced. It is intended to provide guidance regarding the Fair Work Act’s anti-bullying provisions and act as a “how to” manual for parties preparing materials to be submitted to the Commission in a bullying claim.

For example, the Benchbook provides an overview of the background to bullying legislation and contains a number of case examples to demonstrate where behaviour will amount to bullying which is in breach of the Fair Work Act provisions.

The updated Benchbook now includes reference to recent decisions of the Commission and guidance about the Commission’s process for dealing with bullying claims. 

The Commission has not significantly added to the commentary regarding what will constitute “reasonable management action” to assist in determining when an employer’s actions will fall within the reasonable management action exemption.  However, the updated Benchbook does refer to the 2015 decision of Amie Mac v Bank of Queensland Limited and Others ([2015] FWC 774) in now specifying that in order to be unreasonable, an employee must be able to demonstrate that a management action lacked “any evident and intelligible justification“.

While the Benchbook cautions parties against relying on its contents as an alternative to obtaining legal advice, it is clear that the book intends to provide self-represented plaintiffs with assistance in understanding the Fair Work Act’s anti-bullying laws and lodging their claims.

For employers, the Benchbook provides a useful summary of bullying laws and the Commission’s decisions in bullying cases (albeit from the Commission’s perspective), and the process and procedure that the Commissions follows once it receives a bullying complaint.

The updated Anti-Bullying Benchbook can be accessed here: http://benchbooks.fwc.gov.au/antibullying/

We’re all going on a summer holiday…

Undoubtedly, one of the main reasons for the spring in everyone’s step at this time of year is the fast approaching holiday period. It’s that time when many of us take advantage of public holidays and eat into a good portion of annual leave to unwind and recharge for the next year ahead. In the corporate world, most workplaces will typically shut-up shop just prior to Christmas Day, and employ only skeleton staff until the first week of the new year.

As a result, employers tend to direct that their employees take annual leave over shut down periods. The Fair Work Act 2009 (Cth) permits that employees can be required to take accrued annual leave, but only where it is reasonable in the circumstances to do so. One such reasonable circumstance is often the business shut down which occurs over the Christmas/New Year period. This has been reinforced by the recent decision of United Voice v Valspar (WPC) Pty Ltd (t/as Wattyl) [2013] FCCA 1437, where the Federal Circuit Court found that directing employees to take single days of annual leave over the Christmas holiday period to ensure that production rates decreased was reasonable. Judge Denys Simpson found that an intention of “temporarily closing the establishment or a section of it… had the necessary purposes” for the employer’s requirement to amount to a reasonable direction.

Where employees may be required to take leave, employers should also be wary to ensure compliance with any relevant modern awards or enterprise agreements. Employers should also comply with their own company policies and procedures relating to leave.

Importantly, as much notice as possible should be given to employees of the shut down periods so that employees are mindful of the amount of leave they need to take and whether they will have this amount accrued. This will also enable employers to discuss mandated leave with employees who may not wish to take time off, and ensure their preferences are accommodated in a way which works for all parties.

Inevitably, employers may be faced with employees who do not have sufficient annual leave accruals for the annual shut down. In these circumstances, depending on the amount of leave an employer requires employees to take, an agreement may be reached with the particular employee to take annual leave in advance of its accrual, or to take a period of unpaid leave. In most instances, though, an employee cannot be directed to take unpaid leave.