Carol Louw from CCH reports on the latest workplace developments and cases.
Employer penalised for AWAs under duress
The Federal Court has handed down a series of penalties to an employer that forced its workers to sign AWAs under duress.
The workers were casual staff employed at the Mornington Inn in Hobart. The employer, who already operated five establishments, took over the operation of the hotel in 2005.
At the time the employees were employed under the terms and conditions of the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award 1995.
After becoming concerned that the hotel's food operations were not profitable, in June 2006 the employer began distributing AWAs among staff, without explain their terms.
The AWAs sought to introduce a flat rate of pay.
Previously, staff had been entitled to penalty rates and a 25 per cent casual loading under the terms of the award.
The employer forced employees to lose remuneration and choose between signing an AWA and thereby taking a pay cut or suffering a reduction in working hours.
A workplace inspector brought a claim before the Federal Court alleging that the employer had applied duress contrary to s 400(5) of the Workplace Relations Act (the Act), and had affected the position of the staff prejudicially for the prohibited reason that they were entitled to the benefit of the Australian Fair Pay and Conditions Standard, contrary to s 792(1)(b) and (c) and s 793(1)(i) of the Act.
The court noted that it was important when determining an appropriate penalty to send a general deterrent to employers who contravened the Act and forced vulnerable employees to give up their entitlements. Moreover, it noted that although the employer had admitted guilt, it still sought to portray one of its managers as having applied duress to staff, whereas the reality was that the policy was approved by the employer's managers.
For these reasons, the court held that the employer's offences were 'somewhere between a half ($15,000) and two-thirds ($20,000) of the way along the spectrum of seriousness'. It therefore imposed a penalty of $17,000 for each of the 10 breaches.
Directors liable for electrocution death
Three company directors were held liable after a 13-year-old boy was electrocuted at a hotel swimming pool.
The boy was not a hotel guest but lived locally and was swimming in the pool without permission. While climbing the pool fence to retrieve a tennis ball from the semi-enclosed area around the pool, the boy placed his foot on a corroded pipe that contained electrical cables supplying power to the pool filter and a pool deck light. He received an electric shock and later died from his injuries.
The hotel and its three directors were prosecuted for breach of the Occupational Health and Safety Act 2000 (NSW), for failing to ensure that:
the electrical cable had been maintained to ensure people could not come into contact with a live electrical current
a residual current device (RCD) had been fitted
an adequate risk assessment had been conducted on the cable and control measures implemented to prevent any risk to people using the facility
The company pleaded guilty but the three directors pleaded not guilty. The case against the company was stood over pending determination of the case against the directors.
The pipe and the cabling had been installed in 1971 and had deteriorated due to a complete lack of maintenance. The directors took over the company in February 2002 and had no experience in running a hotel/motel business.
For the day-to-day management, they appointed qualified and experienced managers and assumed that the managers would attend to everything.
In this case, the directors had the authority to enquire into the cable maintenance, identification and assessment of risks, and whether the cabling needed to be made safer, for example, by the fitting of a safety device such as an RCD. None of this would have required any prior knowledge or expertise. Not having taken any such steps proved that the directors had not exercised all due diligence and therefore had no defence.
The three directors were each found guilty.
Tasmania introduces on-the-spot fines
Workplace Standards Tasmania inspectors have been given the power to issue on-the-spot fines for workplace safety breaches, bringing the state into line with most other Australian jurisdictions.
On-the-spot fines of up to $2500 will enable inspectors to immediately reinforce the message about maintaining a safe work environment to workplaces which allow their safety standards to slip.
Under the existing regime, offenders must be charged and taken to court for breaches of the Workplace Health and Safety Act. The time between the behaviour occurring and a matter coming before the courts has the potential to dilute extremely important safety messages.
The introduction of infringement notices will quickly highlight unacceptable behaviour and encourage offenders to change it.
