OH & S Update
• January 2006
WORKERS COMPENSATION
Late November 2005 the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (the Act) was passed through parliament. The amendments make a significant change to “outworker” and “labour hire deemed worker” provisions, which will ensure that a larger number of employees will be adequately covered by workers compensation policies.
Conversely employers will be the ones to benefit from the new cross border arrangements to be implemented from 1 January 2006. These changes will reduce employers having to obtain multiple workers compensation policies for workers who are temporarily working interstate.
Expanding the Definition of ‘Worker’
The amendments made to the Workers Compensation Legislation seek to address the issue of employers contracting out of their liability to provide workers compensation in certain instances. Previously employers would enter into agreements that enabled them to have the benefit of a worker’s service without the responsibility of a worker’s compensation. The new legislation combats this act by effectively expanding the definition of ‘Worker’. The Act now states that:
• Labour hire employees are employees of the labour hire provider for workers compensation purposes
• Deem persons engaged under labour hire services contracts are employees of the labour hire services for workers compensation purposes; and
• Outworkers that pass on work to others but do not employ or subcontract that work are workers for workers compensation purposes
The Act provides a direct, approach to resolving the problem and in the event of uncertainty WorkCover are now able to issue private rulings, on written request, as to the workers compensation status of a person or class of persons
Cross Border Benefits Employers
Presently employers need to obtain multiple workers compensation policies for workers who are temporarily working interstate. By introducing a cross-border arrangement only one policy will be required and premiums relating to a particular worker will be payable based on the workers ‘State of Connection’. This will not only benefit employers but also clarify compensation entitlements for workers, ensuring they are connected to State jurisdiction.
Proposed legislation will introduce the following series of tests for determining the ‘State of Connection’:
(a) The State in which the worker usually works in that employment
(b) If no state is identified by test (a), the State in which the worker is usually based for the purposes of that employment
(c) If no state is identified by test (a) or (b), the State in which the employers principle place of business in Australia is located
Once this connection is established, a worker may work temporarily for the same employer under the same term or contract of employment outside their State of Connection for up to 6months without the need to re-consider where the worker ‘usually works’.
The NSW initiative will parallel legislation already introduced in the majority of the other States. As SA and NT are yet to follow, additional coverage may be required if workers will be working in either one of these jurisdictions. Employers will need to make further enquiries with their insurance provider.
JURISDICTIONAL CHALLENGE TO THE INDUSTRIAL RELATIONS COMMISSION
NSW is the only state where OHS offences are heard and determined by a tribunal exercising arbitral powers. Interestingly 2005 saw two cases heard together that attempted to challenge the Industrial Relations Commission’s (IRC) jurisdiction, arguing that the criminal jurisdiction exercised by the Commission infringed Chapter III of the Constitution.
Background
In 1998, a miner was killed when the roof of an underground coalmine near Newcastle, collapsed. Two companies, Powercoal Pty Ltd and Coal Operations Australia Ltd, were charged on the ground that they had failed to provide an adequate system for assessing the roof of the mine and to notify employees working in the mine of weaknesses in the roof.
The Constitutional Challenge
In what was an ambitious defence, it was argued before the NSW Court of Appeal that the IRC did not have the jurisdiction to impose criminal charges under the OHS Act.
Due to the developments in OHS law severe penalties apply and they are now considered criminal in nature (up to $550,000 for a first offence by a corporation and $825,000 for a subsequent offence). However the primary function of the IRC is ‘arbitral’ and therefore was not established to impose criminal penalties. Subsequently the procedural reality that exists in the IRC does not always conform to the standards that apply in the wider criminal law.
The Decision
The court dismissed both cases as it concluded that as long as the IRC undertakes a genuine adjudicative process, and the integrity and independence as a court is not compromised, then the OHS legislation will not infringe Chapter III of the Constitution.
In addition to this the Court went on to state that there was nothing in the Constitution that would preclude the states from legislating to employ non-judicial tribunals to determine issues of criminal guilt, or to sentence offenders for breaches of the law.
The decision effectively closes the door on jurisdictional challenges and reaffirms the IRC’s power to exercise criminal jurisdiction when deciding matters under the OHS Act.
AVIAN INFLUENZA
THE NEW OHS THREAT
The Australian Safety and Compensation Council (ASCC) is currently examining the policies and procedures that have been put in place by other government departments in relation to Avian Influenza – “Bird Flu”.
A warning issued by the World Health Organisation underlined the unpredictable behaviour of influenza viruses noting that “neither the timing or the severity of the next pandemic can be predicted with any certainty”. Whilst Australia is taking extreme precautions, the influenza could be a potential OHS threat to Australia and employers have legal liability to ensure the health and safety of their workforce.
A number of Australian employees are now being required by their employers to either isolate themselves from the balance of the workforce, or undergo medical checks upon returning from overseas business. Whilst these precautions may seem extreme, employers are beginning to recognise the importance of taking reasonably practicable steps to ensure they fulfill their legal obligations. As OHS legislation has proven, an employer who chooses to remain uninformed about these matters cannot escape liability. Therefore it is recommended that if an employee has been in the geographical locality, in which the Avian Influenza is ultimately thought to originate or may be prevalent, steps should be taken to ensure they do not carry the influenza even if they show no immediate symptoms.
CHRISTMAS TRAGEDY SPARKS OHS DISCUSSION
A Caterair staff member tragically died from a heart attack before Christmas after being left alone in a first aid room. Her death generated discussions as to the extent of Caterair’s responsibility and whether an adequate OHS procedure was in place.
Mrs Lambeska began the working day arriving at 4am on Thursday December 22, to make salads for business passengers on Qantas domestic flights. At approximately 10am it is believed she told her supervisor that she felt nauseated and was given the key for the first aid room.
Her body wasn’t discovered until 10pm, after her worried family called to ask if anyone knew where she was. The tragedy has sparked a controversial reaction and the Transport Workers Union is concerned that a staff member who was clearly ill had been left unattended in the first aid room for so long.
Under the Occupational Health & Safety Regulation 2001 every workplace is required to have adequate first aid principles in place. As a brief overview:
1. An employer who employs more than 25 people must have at least one trained first aider.
2. An employer must ensure that there is a first aid facility in the workplace if they employ more than 200 persons, or 100 persons at a construction site.
3. The first aid room must be under the control of ‘trained first aid personnel’ and located so that it is readily accessible during working hours.
These regulations work along side the Occupational Health & Safety Act 2000 which states employers owe a duty to provide supervision as may be necessary to ensure the employees health and safety at work. This legislation imposes an implied obligation upon an employer to undertake risk management practices.
Whilst WorkCover are currently investigating no further details of the incident have been released. The tragedy certainly serves as a reminder to employers to not only have adequate OHS procedures in place, but to ensure those procedures are put into practice.
CONTACT GRECH PARTNERS
Occupational Health and Safety is an important factor in business success. Grech Partners will not only provide you with comprehensive advice but will assist you in implementing best practice policies. Should you require our legal expertise in this area please contact us on (02) 9851 2500.
This publication contains general information only. It is not provided as legal advice. Professional advice should be taken before any course of action is pursued, or any information herein relied upon.