Employment & Safety: summary of the Victorian sick leave pilot scheme; and other developments

The latest issues, decisions and proposed changes impacting business and workplace risk 7 min read

Victorian sick leave pilot scheme for casual and contract workers

By Kathleen Weston and Alana Perna

The Victorian Government has announced a nation-first pilot program that provides five days of personal / carer's leave pay to casual and contract workers in selected industries (the Pilot Program).

Key takeaways

• Under the Pilot Program, employers will generally not be involved with applications by workers for payment of leave.
• While employers don't need to make any contributions to the Pilot Program, the Victorian Government has stated that any ongoing scheme will be funded by an industry levy.

What is the Victorian Sick Pay Guarantee?

On 14 March 2022, the Victorian State Government announced the introduction of the fully-funded Victorian Sick Pay Guarantee Pilot Program which provides casual and contract workers with up to five days (or 38 hours) of personal / carer's leave pay per year.

Eligible employees can apply for payment from March 2022 through the Sick Pay Guarantee website. Leave will be paid at the national minimum wage of $20.33 an hour or $772.60 a week.

There are more than 150,000 casual workers within the following occupations who are eligible under the Pilot Program, including:

• hospitality workers;
• food trades workers and food preparation assistants;
• supermarket workers;
• retail and sales assistants;
• aged and disability care workers;
• cleaners and laundry workers; and
• security guards and officers.

The Pilot Program operates in a similar way to the temporary measures the Victorian Government implemented during the COVID-19 pandemic.

Impact for Employers

The Pilot Program is fully funded by the Victorian Government for its first two years. At the conclusion of the trial, it will be funded through an industry levy to be paid for by employers.

Employers will not be required to manage workers' applications or contribute to their payments. Employers may be required to provide proof of employment to the worker or the Department of Jobs, Precincts and Regions.

It's unclear at this stage whether other states and territories will follow Victoria's lead.

Criminal history and employment: issues for employers

By Andrew Wydmanski and Kathleen Weston

The Fair Work Commission (FWC) has upheld the dismissal of an employee who demanded that a colleague be dismissed due to their criminal record. The FWC found that the employee's behaviour when her demands were not met amounted to misconduct.¹

Key takeaways

• Employers should be careful when treating an employee, or prospective employee, differently based on their criminal history.
• In most Australian jurisdictions, it's against the law to discriminate against someone in employment based on certain types of criminal records (such as spent convictions), for example by not hiring them, engaging them on 'less favourable terms', or barring their access to job-related benefits due to their record.

Background

A worker at 'Supermarket A' entered a colleague's name into a search engine and learnt of a past criminal conviction, leading her to demand his dismissal. Absent misconduct on the part of the colleague with the criminal history, human resources staff offered to change the worker's shifts and duties to avoid conflict but refused to dismiss the colleague.

The worker became more and more aggrieved and was eventually dismissed due to her conduct towards management. The dismissal was upheld, with the Commissioner noting that the worker 'lacked insight' into the employer's position and had allowed her frustrations to, 'boil over into rude and insubordinate outbursts'.

The decision

This case emphasises the issues employers can experience when hiring people with criminal records. While it will sometimes be necessary for employers to consider past criminal convictions when hiring employees, in some cases differential treatment before and during employment can amount to discrimination.

Discrimination laws around Australia vary in respect of employees with criminal records. Legal advice should be sought before making any decisions.

Employer's duty of care: how far does it go in the case of psychological harm?

By Rachel Skevington and Sarah Lunny

The NSW Court of Appeal has awarded damages of $857,948 to a former police officer after finding her employer negligently breached its duty of care by failing to conduct a thorough mental health assessment following several traumatic events.

Key takeaways

• An employer's duty of care goes beyond reacting to an employee disclosing psychiatric concerns. Rather, the duty extends to proactively identifying employees who are (or are likely to be) at risk of psychiatric problems stemming from their work and taking reasonable steps to alleviate these risks.
• Employers should establish and utilise comprehensive systems to ensure an appropriate response is provided when dealing with workplace psychiatric injuries. Employers have a duty to identify and minimise hazards within the work environment in response to an employee's psychiatric injuries.

Background

Ms Skinner worked as a police officer from 1993 until 2010. Over the course of her career, Ms Skinner was exposed to several traumatic events, including attending distressing crime scenes, being involved in workplace conflicts, and the death of two colleagues from suicide. During this time, Ms Skinner received assistance for her psychological issues on several occasions, either initiated by herself or the police force. Ms Skinner also took numerous absences from work due to stress and was, at times, placed on restricted duties due to concerns about her physical and mental health.

In 2008, as part of an application process to join the Mounted Police, Ms Skinner was assessed by a police psychologist. During the assessment, she disclosed she was taking medication for depression but did not disclose she suffered from post-traumatic stress disorder (PTSD). No psychiatric diagnosis was given in this assessment.

Ms Skinner was medically discharged from the police force in 2010. At the time, she was suffering from major depressive disorder and PTSD. Ms Skinner subsequently commenced proceedings against her former employer for work injury damages, claiming that her employer had negligently breached its duty of care to her by failing to provide adequate supports for her psychiatric conditions.

Decision

In 2021, the NSW District Court decided in favour of Ms Skinner, finding that her employer had breached its duty of care by not conducting a thorough mental health assessment of Ms Skinner from 2007 onwards. This failure and the subsequent lack of support was found to have exacerbated Ms Skinner's depression. The award of damages was reduced on the basis that the psychiatric conditions could have otherwise developed and Ms Skinner did not disclose her PTSD to the police psychologist.

The Court of Appeal upheld the decision on appeal, finding that from 2007 onwards her employer knew (or should have known) that Ms Skinner was suffering from depression, and that the psychological assistance provided to her was inadequate and not appropriately directed to her circumstances. The Court of Appeal noted that this case involved a failure to implement the police force's policies for dealing with traumatic stress. The Court of Appeal rejected the finding that Ms Skinner had also been negligent by failing to disclose her PTSD on the basis that the police psychologist should have made further enquiries at the time of the assessment.

Relying on the experience of an employee doesn't discharge WHS duty

By Andrew Wydmanski and Kathleen Weston

A NSW employer has been convicted of two safety offences under the Work Health and Safety Act 2011 (NSW), fined a total of $147,000 and ordered to pay $46,000 in costs, after an incident where a worker's hand was crushed by a press.² The employer failed to conduct a risk assessment in relation to the press, instead relying on an employee's previous experience with the press to manage the associated risks and hazards.

Key takeaways

• Employers must conduct risk assessments to properly identify all workplace hazards and introduce appropriate controls to eliminate (so far as reasonably practicable) or otherwise minimise the potential risk of harm to their workers. Simply relying on an employee's experience with a hazard is insufficient.
• It's essential to report any notifiable incidents to the safety regulator, as failing to do so will lead to additional penalties.

Background

The employer had acquired employees and equipment, including the press, from another business. The employer relied on one employee in particular, Mr Brown, in relation to maintenance, set up and training regarding the press.

In 2019, an inexperienced worker was operating the press without the safety guards in place. The worker's chair slipped, his foot hit the unguarded pedal and his right hand was crushed, resulting in partial amputation. The incident was not reported to SafeWork, but was reported to iCare.

The decision

The Court held that the risk of injury regarding the press was foreseeable, and the likelihood of the risk occurring was high.

Following the incident, the employer took a range of mitigating steps, including:

• replacing the press safety guards;
• introducing a formal lockout procedure for the press when maintenance was being performed;
• introducing, in response to an Improvement Notice, comprehensive work health and safety systems, making significant changes where opportunities for improvement were found, and formalising previously informal safety systems; and
• employing a manager for the NSW office to ensure safety of all personnel at the site.

The Court took the employer's mitigation measures into account in determining the penalties to impose.

The Court ultimately found that the offences were in the upper half of the mid-range for the injury and low range for the failure to report the incident to SafeWork NSW (as the employer did not deliberately evade its reporting obligation).

Whilst there were several mitigating factors, the Court placed the largest emphasis on the early guilty plea, which ultimately reduced the penalties by 25%.

Prado drives employee over high income threshold

By Hannah Jorgensen, Murigen O'Seighin and Tarsha Gavin

An employee's unfair dismissal claim has been rejected after the Fair Work Commission (FWC) decided that her income was over the high income threshold. In determining the employee's total income, the FWC took into account an annualised assessment of the benefit the employee received from a company supplied vehicle, despite the employee only having access to the vehicle for the 40 days immediately prior to her dismissal.³

Key takeaways

• This decision is a reminder that an employee's earnings for the purpose of the high income threshold include more than just wages.
• Non-monetary benefits such as a company-supplied motor vehicle, mobile phone plan, and health insurance can be taken into account when assessing an employee's earnings.

Background

The applicant, Ms Johnson, commenced working for Benex Civil Pty Ltd (Benex) in October 2017. She lodged an unfair dismissal application with the FWC after her employment was terminated in April 2021 for alleged serious misconduct. Benex objected to the claim and asserted that Ms Johnson's annual earnings exceeded the high income threshold at the time of her dismissal, being $153,600. Ms Johnson received a salary of $125,000 and other benefits, including a company-supplied vehicle provided to her 40 days prior to dismissal.

The decision

The FWC decided that Ms Johnson's annual earnings exceeded the high income threshold after making the following determinations in relation to the additional benefits she had received:

• the company-supplied vehicle was included in Ms Johnson's earnings. In the absence of an agreed monetary value of the vehicle to Ms Johnson, the FWC calculated the average daily kilometres travelled for private purposes by Ms Johnson during the 40 days she had access to the vehicle and used this average (multiplied by the estimated cost per kilometre for a vehicle of that type) to calculate the vehicle's total annual benefit to Ms Johnson;
• a mobile phone and data plan for services used entirely or almost entirely for personal use were included in Ms Johnson's earnings;
• a family health insurance plan was included in Ms Johnson's earnings assessment. The cost of this plan was not apportioned between family members;
• compulsory superannuation contributions were excluded from Ms Johnson's earnings assessment as required by the Fair Work Act 2009 (Cth);
• expenses related to the vehicle Ms Johnson used prior to receiving her company-supplied vehicle were excluded as the vehicle was not a benefit she received at the time of her dismissal; and
• fringe benefits tax in relation to Ms Johnson's personal vehicle was excluded from her earnings as there was no evidence she had forgone wages in return for the use of the vehicle.