Skip to content.

Home

Allens Arthur Robinson

Focus: Workplace Relations – June 2005

In this issue: we look at strict obligations imposed under the NSW OHS laws; a workplace policy on sexual harassment that fails to prevent employer liability; the new NSW Workplace Surveillance Act; and a Federal Court decision that supports a practical approach to award coverage.

Employers must lead in safety matters

In brief: The Industrial Relations Commission of NSW recently confirmed that the strict obligations imposed under the Occupational Health & Safety Act 2000 require employers to lead rather than to follow in matters of safety. Partner David Cross reports.

Background

AGL was convicted under the Occupational Health and Safety Act 2000 (NSW) (the Act) for failing to ensure the health and safety at work of its employees and others.1 The convictions arose out of a gas explosion at Kogarah, NSW, in 1995. The construction company, Abigroup, was previously found guilty of breaching the Act in relation to the same explosion. Abigroup was originally fined a total of $1.5 million, which was reduced to $1.1 million on appeal.

Decision

Justice Schmidt accepted that AGL's offences were less serious than those of Abigroup. AGL's principal failing was not ensuring the efficient isolation of gas flow after the explosion. AGL had ensured that sector valves were available to isolate gas flow, but there was difficulty and delay in finding those valves. Maps showing the location of the valves were not available at the site, and an AGL employee who rushed to the site did not have the maps with him. As a result of the delay, AGL employees, and other emergency response personnel, were forced to work in very dangerous conditions.

At the sentencing hearing, AGL argued that its procedures to isolate the gas supply were substantially ahead of other gas utilities in Australia and amounted to world's best practice. Justice Schmidt found that this was not a relevant consideration.

The Act requires an employer to ensure (which means to guarantee) health and safety. In the Commission's view, AGL had failed to do so. It was foreseeable that crews would require maps showing the location of isolation valves. Some consideration had been given to doing so before the 1995 explosion, but the practice did not become uniform until 1997.

Justice Schmidt determined that AGL should be fined a total of $325,000 out of a maximum penalty of $550,000.

Implications

The case is significant because it underscores the absolute nature of employers' obligations under the Act and the serious penalties if there is a breach.

Return to top

Workplace policy fails to prevent employer liability

In brief: The Victorian Civil and Administrative Tribunal has found an employer failed to take reasonable precautions to prevent sexual harassment, despite having developed a sexual harassment policy for the workplace.2 Partner Jamie Wells (view CV)and Articled Clerk Alexandra Feros report.

Background

Ms Styles was employed as a part-time salesperson in a butcher's shop. In October 2003, Ms Styles heard a fellow employee, Mr Ujvari, make an offensive remark about women to a male workmate.

Ms Styles reported the comment to Mr Howe, the managing director. In response, Mr Howe gave Mr Ujvari a verbal warning, and made him read the company's sexual harassment policy and sign a document verifying that he had done so. He told Mr Ujvari that if he made similar remarks again, he would be fired.

Irrespective of this warning, Mr Ujvari and another employee, Mr Shannon, continued to make offensive sexual remarks and behave in an offensive manner. Ms Styles regularly complained about their conduct to Mr Howe, but he did nothing in response.

In November 2003, there was an altercation between Ms Styles and Mr Ujvari involving angry words and physical contact. Three days later, Mr Howe terminated Ms Styles' employment, telling her that she was being retrenched because the business was performing poorly.

Complaint

Ms Styles lodged a complaint under the Equal Opportunity Act 1995 (Vic), claiming the company was responsible for the sexual harassment by Mr Ujvari and Mr Shannon. She also claimed her employment was terminated because she was a woman and that she had therefore been discriminated against on the basis of her sex. The complaint was referred to the Victorian Civil and Administrative Tribunal (VCAT).

Decision

VCAT found that Mr Ujvari and Mr Shannon had sexually harassed Ms Styles, and that the company was also liable for their conduct. It held that the company had failed to take reasonable precautions to prevent the sexual harassment, and that while the company's harassment policy document had been distributed to employees and placed in a prominent position in the workplace, it was inadequate because it did not contain:

  • examples of what kinds of conduct will breach equal opportunity or anti-discrimination legislation;
  • a clear statement that harassment can be constituted by words or actions;
  • the name of a contact person for an employee to go to if they felt they had been harassed;
  • a clear statement setting out any internal complaint-handling process; and
  • information about external complaint-handling mechanisms.

In addition, VCAT found that the policy had not been implemented effectively. Mr Howe did not have a collective meeting of employees to discuss the policy. Also, although Mr Howe gave Mr Ujvari a warning and made him read the policy after the initial complaint, Mr Howe took no action in relation to Ms Styles' subsequent complaints.

VCAT rejected the claim that Ms Styles' termination was direct discrimination on the basis of sex. Ms Styles failed to prove that a man would have been treated any differently in similar circumstances.

The company was ordered to pay Ms Styles $8,000 compensation.

Implications

VCAT's decision is a reminder that an employer cannot rely solely on a written policy as a means of avoiding liability for the acts of its employees. A prudent employer will have a policy with enough detail for an employee to know exactly what they should not do or say, even where this might appear self-evident. It must also be implemented effectively so that:

  • employees are aware of complaint processes; and
  • that any complaints are dealt with effectively under the policy.

Return to top

Workplace Surveillance Act passed in New South Wales

In brief: The rights of New South Wales employers to conduct covert surveillance of their workplaces will be severely restricted when the Workplace Surveillance Act 2005 commences. Senior Associate Andrew Cardell-Ree reports.

Legislative history

Regular readers of AAR's Focus: Workplace Relations may recall that the NSW government first issued an exposure draft of the Workplace Surveillance Bill in June 2004.3 After much debate, the Bill was passed this month and the Workplace Surveillance Act 2005 (NSW) (the Act) will commence from a date to be proclaimed.

The presumption of unlawful surveillance

Previous NSW workplace surveillance laws regulated how an employer could use video cameras to conduct surveillance of its employees, but did not regulate the use of tracking devices or surveillance of employee email, Internet and other computer use.

The Act will extend the existing regime to all forms of workplace surveillance. Under the new regime, an employer may monitor employees' activities:

  • overtly, where the employees are given written notice of the manner, nature and duration of the surveillance; or
  • covertly, but only in circumstances where the employer has first obtained court approval to do so.
Overt surveillance

Surveillance will be lawful overt surveillance where an employer gives its employees at least 14 days' written notice of the surveillance before it begins. This notice must specify:

  • the type of surveillance to be carried out;
  • how the surveillance will be carried out;
  • when the surveillance will commence; and
  • whether the surveillance will be continuous or intermittent.

Any surveillance that does not meet all the requirements of notified overt surveillance will be deemed to be covert surveillance.

Covert surveillance

To conduct covert surveillance lawfully, an employer must first obtain a 'covert surveillance authority' from a magistrate. To do so, the employer must demonstrate a reasonable suspicion that an employee is involved in an unlawful activity while at work, and explain the steps the employer has already taken to detect the unlawful activity.

All covert surveillance must be conducted for the sole purpose of establishing involvement in unlawful activity and will be overseen by a court-appointed 'surveillance supervisor'. Breaches of workplace policies will not generally amount to unlawful activity, and will not be sufficient to justify a covert surveillance authority.

Offences and personal liability

Employers who conduct covert surveillance unlawfully may be subject to fines of up to $5,500 per offence. Directors and others involved in the management of the company may receive convictions for breaches.

Implications

The Act will require employers to formulate carefully worded policies and procedures relating to workplace surveillance. Those employers who already have policies in place should have them reviewed to ensure they comply. Employers must also ensure that employees are aware of – and understand – these policies.

The consequences for an employer of a breach of the Act could be far reaching, including for example:

  • being unable to rely on damning evidence during unfair dismissal proceedings; or
  • being unable to use vital evidence relating to the misuse of the employer's intellectual property or confidential information in an injunction application.

Victoria is currently considering proposals to regulate employees' privacy at work.

Return to top

Which award applies?

In brief: Awards should be read in a way that avoids overlapping coverage over a particular class of employee. Lawyer Maree Norton reports on a Federal Court appeal supporting a practical approach to award coverage.

Background

The appeal involved claims by seven meat workers that they had not received their full annual leave entitlements under the Federal Meat Industry (Processing) Award 2000 (Processing Award). Their employer, Meatpak Pty Ltd (Meatpak), argued that the employees were not subject to the Processing Award, but to the Federal Meat Industry (Retail and Wholesale) Award 2000 (Retail & Wholesale Award).

Award definitions

The Processing Award applies to persons who work within a 'meat processing establishment', including a 'boning room', while the Retail & Wholesale Award applies to all employees employed in 'retail meat establishments, wholesalers, domestic and/or wholesale meat markets and abattoirs'.

Meatpak operated a wholesale business in Cavan, South Australia. The employees worked at a plant adjacent to the wholesale market, in a production area that included a 'boning area'. On this basis, it was arguable that both the Processing Award and the Retail & Wholesale Award might apply to the establishment in which the employees worked.

The applicable award

The Industrial Relations Court of South Australia (IRCSA) determined that the Processing Award applied to the employees, but invited further evidence regarding the calculation of the claimed leave entitlements and did not determine the matter finally. In reaching that view, the IRCSA considered that it was possible for both the Processing Award and the Retail & Wholesale Award to apply within the same establishment.

Meatpak Pty Ltd sought (and was granted) leave to appeal to the Full Court of the Federal Court (the Full Court), maintaining that the applicable award was the Retail & Wholesale Award.

The Full Court observed that it was generally undesirable for more than one award to apply in a single establishment.4 It held that, when more than one award might apply, a 'dominant nature of the establishment' test should be used to determine which should prevail.

The Full Court considered that the following matters were relevant to the 'dominant nature of the establishment' test:

  • the predominant activity undertaken at the establishment;
  • the dominant means by which the employer derives a profit;
  • whether the establishment is in fact a single establishment, or a series of multiple, adjacent establishments; and
  • whether the words used to describe the establishment have acquired a special meaning within the relevant industry.

The Full Court did not decide which award applied most aptly but instead referred the matter back to the IRCSA for further consideration.

Footnotes
  1. WorkCover v AGL Gas Networks Limited [2005] NSWIRComm 188.
  2. Styles v Murray Meats Pty Ltd (Anti-Discrimination) [2005] VCAT 914.
  3. See Focus: Workplace Relations, March 2004.
  4. Following the decision in Metal Trades Industry Association of Australia v Electrical Trades Union (1991) 44 IR 141.

Return to top

For further information, please contact:

Return to top

Tweet or bookmark with
Tweet this article

What are these?

 

Recent Workplace Relations publications