WHS and IR legislation: traps and pitfalls

Even the most experienced workers, managers and lawyers sometimes get it wrong when interpreting obligations under workplace health and safety (WHS) and industrial relations (IR) legislation. The following cases highlight the value of training and certification for all employees.

In one of the first defended hearing in the NSW District Court, (WorkCover v Patrick Container Ports 17 February 2014), Judge Jim Curtis considered the fatal injury of an employee who was aware of the relevant risk and the safe work method procedure he was required to adopt – but didn’t apply it.

The employee had significant amounts of methamphetamine in his system at the relevant time.

WorkCover NSW alleged a range of workplace risks against Patrick Container Ports that largely related to a lack of documented systems. Judge Curtis found that the employee had been trained about the safe procedure and his non-compliance with it would not have been changed if a documented process had been in place.

Reporting on the case in its July 2015 mid-year employment, safety and law review, law firm Corrs says the case signalled that the prosecutor must prove beyond reasonable doubt that the defendant did not take all steps reasonably practicable to ensure the health and safety of its workers. This means that defendants now have options other than reaching agreement on a plea; defences exist and should be pursued where appropriate.

Further, defendants should have increased bargaining power when discussing potential plea agreements, it reports.

Safety raised in sham contract allegation

WHS laws are not the only ones creating confusion for workers and management alike. In an industrial dispute with a strong safety angle, Anglo Metallurgical Coal Pty Ltd has come under fire from mining union the Construction, Forestry, Mining and Energy Union (CFMEU) for introducing what the union claimed were “sham” employment arrangements at the company’s open cut mine near Biloela in Central Queensland.

At the heart of the dispute: the company’s decision to add ‘supervisor’ to the job description of three new open cut examiner (OCE) positions responsible for undertaking safety inspections at the mine.

The union claimed the dual job role breached existing job descriptions and payment arrangements laid down in the enterprise agreement, by extending the OCE role to new duties without consultation. Further, adding supervisor responsibilities to the OCE’s principle role – looking after mine safety – posed its own safety risks, it claimed.

Anglo disagreed, arguing the new position was not a “sham substitute” for a pre-existing OCE position filled either by a contractor or an employed OCE, but rather a new position. The result was the enterprise agreement did not apply to a person employed in the new position, it argued.

Federal Court Justice John Logan agreed, finding a “quality which a person holding an OCE/supervisor position had to have in order to be appointed to that position was supervisory skills”. The position was new and not a substitute for a pre-existing OCE position filled either by a contractor or an employed OCE; and not covered by the enterprise agreement, Judge Logan found.

Drug testing under scrutiny

Misunderstandings when it comes to interpreting legislation are not unique, with WHS a frequent cause of dispute between employers and unions.

The Federal Fair Work Commission’s myriad responsibilities include dealing with general protection disputes that involve the exercise of a WHS right, disputes over clauses in an agreement related to WHS and termination of employment that may involve a WHS issue.

In a more recent FWC full bench decision affirmed by a full court of the Federal Court and reported by Corrs in its midyear review, the court upheld a decision to overturn the reinstatement of a ferry master who failed a drug test after crashing a ferry into a pylon.

The ferry master did not declare his use of marijuana for pain relief on the day prior to the incident. When he returned a positive reading, he was suspended and then dismissed for breaching the employer’s ‘zero tolerance’ drug and alcohol policy, Corrs reported.

In its decision, the full bench was dismissive of the mitigating factors identified first by the FWC. These included the absence of a link between the drug use and the accident and the fact that there was no substantial damage to the vessel.

The full court held that the full bench did not commit any jurisdictional error when it intervened to correct the erroneous reliance upon those mitigating factors. It rightly identified errors in the original decision-making process and in the order of reinstatement.

The full court’s decision is significant because it confirms that the FWC has the discretion to judge whether a dismissal is unfair and what remedy should be awarded – with limited scope for a challenge based on jurisdictional error, Corrs said.

It is also likely to make employers more certain about disciplinary action or dismissal clauses in their drug and alcohol policies, even when there is no evidence of employee impairment.

Dismissal a minefield

At the coalface, employers are under increased pressure to meet onerous new compliance requirements when it comes to workplace dismissal.

But lower courts sometimes get it wrong when interpreting this obligation.

The Full Federal Court recently overturned a Federal Circuit Court decision to reinstate a government lawyer dismissed for misconduct while suffering from anxiety and depression. The dismissal followed the lawyer’s repeated failure to adhere to directions. These arose from his absenteeism and poor performance, including him missing court hearings, Corrs reports.

In the Federal Circuit Court the lawyer succeeded with the argument that he was dismissed due to mental disability, which is prohibited under the Fair Work Act, section 351(1). On appeal, the Full Federal Court applied the High Court’s Barclay and BHP Coal decisions and held that there was no evidence to support the trial judge’s conclusion that the manager, responsible for the lawyer’s dismissal, should have linked the lawyer’s misconduct to mental illness.

The Full Court said: “It is possible for there to be a close association between the proscribed reason and the conduct which gives rise to adverse action and for the decision maker to satisfy the Court that no proscribed reason actuated the adverse action”. The manager had not, therefore, acted for a proscribed reason in breach of Part 3-1 of the FW Act.

Reference sources for this article:

• austlii.edu.au/au/cases/cth/FCA/2015/696.html
• corrs.com.au/assets/thinking/downloads/Corrs-Employment-Workplace-Safety-Law-Mid-Year-Review-July-2015.pdf
• Toms v Harbour City Ferries Pty Ltd [2015], FCAFC35, (16 March 2015)
• CFMEU v Anglo Coal [Callide Management] Pty Ltd, [2015], FCA696, (9 July 2015)
• State of Victoria (The Office of Public Prosecutions) v Grant [2014] FCAFC 184 (23 December 2014)
• Work Cover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171, 17 February, 2014)