Newsletter 

Q1 - 2020  Jan-Mar.

#  Changes to the NSW WHS legislation

#  Industrial manslaughter now a crime in Victoria

#  Sacked via text?

#  Sharing the blame

#  Can employers legally collect and store their employees' data? 

#  Company ordered to provide training for senior staff

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Changes to the NSW WHS legislation

The NSW Government has introduced amendments to the Work Health & Safety Act (NSW) (WHS Act) to implement some key recommendations from the 2018 National WHS Review.

There will be a shift from the current  rates of fixed maximum fines to penalty units, as in the old OHS legislation. The practical effect will be a significant increase in potential maximum fines as well as annual increases of the value of the penalty unit, now set at $100.

Another important change is the prohibition of insurances or other indemnity arrangements with respect to penalties. It will now be an offence to enter into or provide such arrangements and a separate offence to take the benefit of such arrangements, with a maximum fine in the case of the latter offence being $250,000 for a PCBU and $50,000 for an individual.

The NSW Government has also declined to introduce separate industrial manslaughters laws, such as those introduced by Victoria.

Industrial manslaughter now a crime in Victoria with maximum penalties of $16.5m and 20 years' jail

The new laws will commence on a day still to be proclaimed, or 1 July 2020 at the latest, negligent conduct before the legislation commences may still be relevant for the purposes of prosecution if an organisation's omission to amend unsafe work policies causes a workplace fatality post-commencement.

The new industrial manslaughter laws have been added to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and will apply to organisations (including bodies corporate, partnerships, unincorporated bodies and unincorporated associations), self-employed persons as well as officers

Sacked via text?

In Wallace v AFS Security [2019], Mr Wallace was a casual Security Guard at AFS. In late-January 2019, Mr Wallace sent two text messages to a Director, Ms Everett, who worked in payroll.  One, raising concerns about his roster and the second about not receiving payment for a shift he worked a few days before.

The first text was answered confirming that it would be discussed the next day. Mr Wallace received a response to the second text a couple of days later when Ms Everett indicated that it would be "fixed up".

The following week, Ms Everett sent Mr Wallace a text "Effective immediately we no longer require your services as a casual patrol guard with AFS Security."

Mr Wallace texted back "Please explain?" After unanswered texts and phone calls, Mr Wallace drove to the company office to get an answer from Ms Everett but was told he was a casual and no explanation was needed.

Mr Wallace filed an unfair dismissal application.

Mr Wallace was awarded $12,465 in compensation. The Commission found that AFS did not have any reasonable grounds to terminate Mr Wallace's employment without warning or any notice. The Commission was scathing about the way AFS terminated Mr Wallace's employment:

"Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous...the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation."

In a previous case, Rahim v Murdoch University Childcare Centre [2016], Ms Rahim was a Childcare Assistant who had worked at the Centre since 10 June 2011 as a casual and then as a part-time employee. In 2015, Ms Rahim sent the Centre Manager, Ms Cannon, a text asking if she could complete a half day the next day, because she had a hospital appointment.

Ms Cannon replied:

"That's fine. Don't worry about coming in tomorrow. I have taken you off the roster as you have become too unreliable. All the best." 

Deputy President Sams commented:

"I am appalled that Ms Rahim was dismissed by text message. It was at best, inappropriate and, at worst, a gutless abrogation of an employer's obligation to act reasonably and decently when ending an employee's employment."

Sharing the blame

Three companies share the blame for a workplace injury

The employee, Mr Damon, was employed as a truck driver for Kokoszko.  Kokoszko was contracted by Asixa to take freight from its warehouse to Bronzewing. The freight included large and heavy tractor tyres.

Kokoszko and Asixa had an arrangement whereby a truck trailer would be left at Asixa's premises to be loaded by Asixa's employees.  Mr Damon would then collect the trailer and drive it to Bronzewing's premises, where he would be required to assist with the unloading.

On 8 February 2011, Mr Damon was assisting unloading the tractor tyres when he sustained a lower back injury.

In the lead up to the injury, Asixa had changed the way in which it loaded the tractor tyres. Asixa used to load tractor tyres onto a pallet, so that the tyres could be unloaded via a forklift at the other end. As this was damaging the tyres, they started loading the tyres directly onto the trailer.

Asixa had a 'grabber' attachment on its forklift, which enabled easy loading of the tyres. Complaints were made by Kokoszko and Bronzewing to Asixa about the change in process.

Through those complaints, Asixa became aware that Bronzewing did not have a grabber attachment to assist with the unloading, which meant that the tyres would have to be unloaded manually.

Both Kokoszko (as the employer) and Bronzewing (as the occupier) admitted that they owed a duty of care. Asixa alleged that it was simply a principal, and, on that basis, did not owe Mr Damon a duty of care.

Asixa had inserted itself into the system of work by loading the trucks for transport. The Court held that it was reasonably foreseeable that truck drivers transporting the freight might be injured by unloading the freight, if reasonable care was not taken.

The Court held that all defendants had breached their duty of care.

The Court said that Kokoszko should have told Mr Damon not to assist with the manual unloading, and that proper instruction was vital where employees are attending on remote sites. Mr Damon raised his concerns with Kokoszko, but understood from their response that he was to continue assisting unloading the tyres.

While Bronzewing did raise the issue with Asixa, it had a continuing obligation to devise a safe method for unloading goods, or to refuse to unload the goods. It allowed the manual system, knowing this was the only way to unload the goods.

Asixa knew of the manual handling problem that arose out of its own system of loading the tyres, but took the view that it had no responsibility to address the problem. The Court disagreed, and found that there were alternative systems available, such as placing a piece of plywood on top of a pallet, which would have ensured that the tyres were not damaged, but still allow for mechanical unloading at the other end.

Both Asixa and Bronzewing were apportioned 35% of the responsibility for the injury. Because Kokoszko had no control over loading or unloading, its share of the responsibility for the injury was assessed at 30%.

Can employers legally collect and store their employees' data? 

Previously, guidance provided by the Office of the Australian Information Commissioner suggested that employers could legally store employee data without breaching the Privacy Act if the data related to the employee's employment.

A recent Fair Work Commission Full Bench decision in Jeremy Lee v Superior Wood [2019] has held that this exception only applies to data already held by the employer and that employees are entitled to refuse to allow their employer to collect and store 'sensitive information' about them, including biometric data obtained from BYOD personal devices, or in this case, fingerprints.

Jeremy Lee was employed by Superior Wood, a company that operates Sawmills in Queensland.

Previously, employees of Superior Wood were required to use a 'sign in and sign out' book to log their shift times. However, Superior Wood discovered that employees were signing in for their colleagues when they were not actually at work. Superior Wood decided to implement a fingerprint scanning system to replace the sign-in book and amended their 'Site Attendance Policy' accordingly.

Mr Lee refused to register his fingerprint in the system and continued to use the manual sign-in book. After directions, discussions and warnings, Mr Lee's employment was terminated.

Mr Lee made an unfair dismissal claim in the Fair Work Commission. The Commission held that the dismissal was not unfair. However, on appeal to the Full Bench, this decision was overturned. The Full Bench held that:

• the 'Site Attendance Policy' did not apply to Mr Lee, as his employment contract specified that he was only bound by company policies in place at the commencement of his employment; 
• as to whether Superior Wood's direction to use the fingerprint scanner was a 'reasonable and lawful' direction, under the Privacy Act, records held by an organisation in connection to a person's employment are exempt from Privacy Act requirements, but this exemption only applied to records already held by the employer, not the collection of data, and even more so sensitive personal information; 
• therefore Superior Wood did have to comply with the provisions of the Privacy Act, including the prohibition on collecting 'sensitive information', including biometric data, without the person's consent; 
• and therefore, Superior Wood's direction to Mr Lee to submit to mandatory fingerprint scans was not a 'reasonable and lawful' direction, and not a sound basis for termination; and, 
• while it was acknowledged that the implementation of the fingerprint scanner may have offered some safety benefits by providing a record of which employees were on site in the case of an emergency, these safety benefits did not outweigh the requirement for Superior Wood to comply with the provisions of the Privacy Act.  

Company ordered to provide training for senior staff

An industrial paint mixing and manufacturing company, MMP Industrial Pty Ltd, was ordered to provide essential safety training to key staff after a worker was seriously burnt during cleaning activities.

MMP Industrial was also fined a total of $75,750 for two breaches of the Work Health and Safety Act 2011.

SafeWork NSW Executive Director, Operations, Tony Williams, said the company was issued orders for the general managers and work health and safety officer to undertake safety training in due diligence, hazardous substances and electrical compliance in hazardous areas.

“These training orders are significant as the judge recognised that a basic lack of safety awareness was what led to an ultimately avoidable situation,” Mr Williams said.

“The risk was foreseeable and straightforward control measures could have been used to prevent the incident. The company was also ordered to develop a work health and safety plan that directs senior staff to implement the lessons learned through training in the workplace,” Mr Williams said.

The worker was using a highly flammable solvent, acetone, to clean a paint mixing vat when a static electrical charge caused a spontaneous ignition of the vapours.

The worker was standing half a metre from the vat when the explosion occurred and the incident was not reported to SafeWork NSW until seven days later.

“It is a duty holder’s responsibility to educate themselves on risk management,” Mr Williams said.

“Simple measures that could have prevented a worker being injured include installing anti-static wheels on mixing vats, preventing acetone splash by decanting the hose on the side, reducing the flow rate on the hose and installing a switch that requires two people to operate the hose.

“And most importantly – providing comprehensive risk management training to all workers and senior staff.”
MMP Industrial has the right to lodge an appeal.

   https://www.safework.nsw.gov.au/news/safework-media-releases/paint-manufacturer-ordered-to-upskill-senior-staff-in-safety