Employment and Safety: proposed changes to paid family and domestic violence leave and other developments

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

Paid family and domestic violence leave – proposed changes

By Chloe Wilton, Alana Perna and Hannah Jorgensen

In brief

During Parliament's first sitting period under the new Government, Minister for Employment Tony Burke introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill). The Bill proposes to amend the National Employment Standards (NES) to replace the existing entitlement to five days' unpaid family and domestic violence (FDV) leave with a more generous entitlement to ten days' paid FDV leave for all employees.

Key takeaways

• If the Bill is passed, the entitlement to 10 paid days of FDV leave will commence on 1 February 2023 for most employers, and from 1 August 2023 for small business employers.
• Employers should consider how they will incorporate this entitlement into their payroll systems, HR practices and policy documents before the changes come into effect.
• If the Bill is not passed, we anticipate that the Fair Work Commission will reconsider introducing paid FDV leave into modern awards (for more information please visit our earlier Insight).

Understanding the new entitlements

The Bill proposes to amend the NES so that:

• all employees, including casual employees, will be entitled to ten days' paid FDV leave per year to deal with the impact of FDV (rather than the existing entitlement to five days of unpaid FDV leave per year);
• the full entitlement to 10 days of paid FDV leave will be available at the start of each 12-month period of the employee's employment and will not accumulate from year to year;
• for full-time and part-time employees, FDV leave will be paid at the employee's full rate of pay, worked out as if they had not taken leave (ie including loadings, allowances, overtime and penalty rates); and
• for casual employees, FDV leave will be paid at the employee's full rate of pay, worked out as if the employee had worked the hours for which they were rostered during the period of leave (ie including loadings, allowances, overtime and penalty rates).

Until the amendments take effect, all employees (including casual employees) will continue to be entitled to five days of unpaid FDV leave in a 12-month period.

When may an employee take paid FDV leave?

The Bill extends the circumstances in which an employee may take FDV leave.

Employees will continue to be able to take FDV leave to deal with the impact of FDV, where it is impractical for the employee to do so outside their working hours. This may include making arrangements to ensure the safety of the employee or a close relative, relocating, attending court hearings, accessing police services, attending counselling or attending appointments with medical, financial or legal professionals.

However, the Bill extends the definition of FDV to include behaviour by a member of the employee's household or a current or former intimate partner of the employee, in addition to behaviour by a close relative of the employee.

Do employers have any additional obligations?

Employers must take reasonably practicable steps to ensure any information provided by an employee about the employee taking FDV leave is treated confidentially.

How should employers prepare for the proposed changes?

Employers should take the following steps to prepare for the proposed changes to FDV leave:

• consider the process that will be followed when an employee makes an application for paid FDV leave;
• communicate to employees about the process to apply for paid FDV leave (ie through a policy) and make that information readily available;
• ensure that payroll can record paid FDV leave in their systems and on payslips in a way that protects the employee's confidentiality; and
• provide training to managers on their obligations to protect the confidentiality of any information provided by an employee about the employee taking FDV leave.

Confidential information, counselling and support is available for anyone impacted by FDV at the national sexual assault, domestic and family violence counselling service 1800 RESPECT (1800 737 732).

Sexual harassment update: Enough is Enough in Western Australia

By Veronica Siow and Kathleen Weston

Learnings from the Enough is Enough report on sexual harassment

The Community Development and Justice Standing Committee of the Parliament of Western Australia (Committee) has tabled its second report: 'Enough is Enough: sexual harassment against women in the FIFO mining industry' (Report). The Report is the result of a Western Australian senate inquiry, which was focused on investigating sexual harassment against women in the FIFO mining industry.

Both the inquiry and the Report exposed appalling instances of sexual harassment and assault in the industry. The Report has made it clear that, whilst individuals must be held to account for their behaviour, it is ultimately companies that must take the lead in addressing sexual harassment in the workplace.

Key takeaways: extensive reform is needed in the FIFO sector

The Report ultimately made 79 findings and 24 recommendations.¹

Key takeaways from the findings of the Report include:

• Gender inequality in the FIFO workforce is a key driver of sexual harassment. To combat this, the Report recommends a holistic approach, including greater female participation, improved training for all employees about inappropriate behaviour and the development of an industry-wide framework to address cultural factors that allow discrimination and sexual harassment to persist.
• Both internal (victim/bystander to company) and external (company to regulator) mechanisms for reporting sexual harassment suffer from critical failings.
• For large companies, the problem is not that they do not have internal reporting mechanisms in place, but that the culture and organisational response does not encourage reporting, support victims or deter inappropriate behaviour.
• The external reporting regime is not fit for purpose—companies have overwhelmingly failed to report sexual harassment to the regulator, and the regulator has not established adequate, industry-wide processes for dealing with sexual harassment.

Background

The inquiry was triggered in June 2021, following several public reports of sexual assault and sexual harassment in FIFO workplaces in WA. The terms of reference for the inquiry included consideration of whether:

1. there is a clear understanding of the prevalence, nature, outcomes and reporting of sexual harassment in FIFO workplaces;
2. existing workplace characteristics and practices—including but not limited to workplace cultures, rosters, drug and alcohol policies and recruitment practices—adequately protect against sexual harassment;
3. current legislation, regulations, policies and practices are adequate for FIFO workplaces in Western Australia; and
4. any actions are being taken by industry and government to improve the situation, and whether there are any examples of good practice.

The Report found that the resources industry, and the FIFO sector in particular, exemplified key risk factors that are widely understood to result in a culture of sexual harassment. These key risk factors included large gender inequality in the workforce, hierarchical power imbalances and misuse of alcohol.

Recommendations

We summarise some of the key recommendations and findings below.

Reporting avenues

Recommendations 10, 14, 16 & 18: several of the key findings related to issues experienced with current reporting processes. The Report recommended companies establish a number of reporting options for employees, both internal and external. The Report also made recommendations around regulator involvement in reporting, such as suggesting the development and management of third-party reporting platforms.

Repercussions for perpetrators

Recommendations 2 & 3: another key recommendation related to the need to ensure there are serious employment repercussions for perpetrators of sexual harassment, including any attempts to seek sexual favours in exchange for advantage.

The Report proposed the establishment of an industry-wide workers' register, or other similar mechanism, through which to track serial perpetrators.

Recommendation 17: the Report recommended that regulators investigate and monitor the use of non-disclosure agreements (NDAs) and private settlements relating to circumstances involving allegations of sexual harassment.

This is also a focus area in Victoria, being a key recommendation from the Ministerial Taskforce on Workplace Sexual Harassment. You can read more about the Victorian developments in this space here.

Framework to promote gender equality

Recommendation 5: the Report noted that improving gender equality in the workforce, especially in supervisor or management positions, would be key to addressing the widespread cultural issues in the resource sector.

Recommendation 6: the Report drew a link between certain types of 'insecure labour', such as labour-hire and sub-contracting, and issues with power dynamics. To combat this, the Report suggested considering proportions of such employment, reviewing information-sharing protocols with any third parties and establishing clear guidelines of workplace standards with all workplace participants.

Recommendations 7 & 9: the Report recommended that large companies in the sector should develop and share best practice processes and procedures across the industry, and that all companies should ensure targeted training is delivered consistently to all employees.

Legislative change

Recommendation 20: the Report recommended that the Equal Opportunity Act 1984 (WA) be reviewed, with a view to making it consistent with other jurisdictions, including by reversing the onus of proof on victims of sexual harassment and removing the 'disadvantage' test.

Recommendation 21: harmonise the definition of sexual harassment.

What does this mean for employers in the resource sector?

The Report emphasised the role expected of companies—take the lead in reforming workplaces. Whilst no legislative changes have yet been enacted, WorkSafe WA has released its updated information sheet on Gendered violence: Sexual assault indicating that the regulator is on top of (and interested in) these issues in the industry.

Addressing workplace sexual harassment is not just a key focus area for the WA resource sector; it is a key focus area across the country, with the Federal Government indicating it is reconsidering the Respect@Work report and looking to legislate to strengthen laws that prevent sexual harassment.²

The Report drives home that stagnant policies and procedures, as well as investigatory measures that are reaction-based, have obviously not been adequate in addressing sexual harassment in the resource sector. The Report suggests that what is actually required is widespread cultural change; and its suggestions carry weight. Employers in the resource sector should carefully consider the Report's recommendations, especially in relation to reporting, gender imbalances and training.

Can I get that in writing? FWC applies Rossato to determine casual was not entitled to claim unfair dismissal

By Katherine Polazzon and Andrew Wydmanski

Liting Gu v Geraldton Fishermen's Co-operative Pty Ltd [2022] FWC 1342

FWC applies Rossato

The FWC has applied Rossato in finding that the employment contract of a casual employee who worked every week for 14 months helped show she was not employed on a regular and systematic basis and that she could not have had a reasonable expectation of continuing employment, barring her from making an unfair dismissal application.

What do your contracts say?

• The High Court's decision in Rossato highlighted the central importance of written employment contracts in determining the legal relationship between an employer and employee. The contract is also essential in determining whether an employee could reasonably expect ongoing employment on a regular and systematic basis.
• Companies should carefully review employment contracts to ensure they accurately capture the parties' intended relationship and minimise the risk of post-contractual conduct being taken to create a reasonable expectation of ongoing employment on a regular and systematic basis.
• Although courts and tribunals may still consider post-contractual conduct in determining if the expectation was 'reasonable', the contract remains key. Employers should include clauses making the casual nature of the engagement clear, and that the agreed terms and conditions of employment are exclusively covered by the written contract.

Employee worked every week for 14 months – but was not regular and systematic

Mrs Gu was employed by Geraldton Fisherman's Co-operative Pty Ltd (GFC) for approximately 14 months. On 24 January 2022, Mrs Gu lodged an unfair dismissal application. GFC objected to the application on the basis that Mrs Gu was a casual employee and was not eligible to make an unfair dismissal claim.

GFC submitted its staffing was largely dependent on what was caught each day and as such, it maintained a pool of casual staff. Mrs Gu's employment contract specified she was employed as a casual employee. In practice, she was generally offered shifts the day before the shift; and while she had no fixed hours or days of work, she had worked every week over a 14-month period.

GFC argued that Mrs Gu was not a regular casual employee and, in the alternative, that she could not have had a reasonable expectation of continuing employment on a regular and systematic basis.

As part of this argument, GFC said that the words in Mrs Gu's employment contract, including a clause stating 'nothing in this letter is intended to give rise to a permanent employment relationship, or an expectation of regular, ongoing engagements' meant Mrs Gu could not have held any expectation of ongoing employment.

GFC then pointed to the High Court's decisions in Rossato (see our previous Insight on the Rossato decision), Personnel and Jamsek (see our previous Insight on the Personnel and Jamsek decisions) to support its argument that Mrs Gu's employment contract, as a 'true, reliable and realistic' statement of the employment relationship, showed that the parties did not intend for Mrs Gu's employment to be regular and systematic, nor give rise to an expectation of continuing employment.

Decision

The FWC was ultimately not convinced that Mrs Gu was employed on a regular and systematic basis; nor that she had a reasonable expectation of continuing employment on a regular and systematic basis.

In reaching this decision, the FWC found the words in Mrs Gu's employment contract 'negated' any expectation of continuing employment on a regular and systematic basis and that there was no other evidence to suggest Mrs Gu and GFC had departed from the arrangement described in the contract.

The FWC added that, in addition to the contract, the context of the employment relationship, including the work Mrs Gu was engaged in, GFC's industry and the organisational structure of its operations meant that any expectation of continuing employment on a regular and systematic basis could not have been reasonable.

Don’t judge an award by its cover

By Tegan Ayling and Mikaela Heise

Health Services Union v Catering Industries (NSW) Pty Ltd [2022] FCA 754

Award interpretation is a moving feast

In a recent decision, the Federal Court of Australia determined that a catering company providing catering services for an aged care facility is covered by the Hospitality Industry General Award 2020 (Hospitality Award), and not the Aged Care Award 2010 (Aged Care Award).³

This case is a timely reminder of the complexities of modern award coverage and that employers should carefully consider the words of potentially applicable awards when determining coverage.

Background

An aged care facility provider decided to contract out its catering services performed by its own employees to an external catering company, Catering Industries Pty Ltd (Catering Industries). The employees subsequently had their employment transferred to Catering Industries, although they continued to perform catering services for the aged care facility and were covered by a pre-existing enterprise agreement.

When the Health Services Union (Union) sought to negotiate a replacement enterprise agreement, a dispute arose as to the underlying modern award that covered the employees. The Union argued the Aged Care Award was applicable. Catering Industries, on the other hand, took the view that the Hospitality Award applied.

Change of employer meant change in award

The court decided that the Union had failed to demonstrate that Catering Industries was an employer in the aged care industry covered by the Aged Care Award.

In reaching its decision, the court noted:

• the wording of the coverage clause in the Hospitality Award indicates that the Fair Work Commission (Commission) was aware of the overlap of the two awards and the nuances in the provision of catering services to the aged care industry;
• the Commission intended that the Hospitality Award would extend to a caterer providing catering services 'for or within an aged care facility' that was not the owner or operator of the facility, and where a caterer does so the coverage clause recognises that it will still be within the hospitality industry; and
• the natural and ordinary meaning of the two awards, when read together, is that the Hospitality Award covers the provision of services by Catering Industries, instead of the Aged Care Award.

Be reasonable: employer restrained from relying on wide restraints

By Andrew Wydmanski and Alana Perna

United Petroleum Pty Ltd v Barrie [2022] FCA 818

Further than reasonably necessary

In this case, the Federal Court considered the enforceability of two post-employment restraint clauses. The clauses sought to limit the employee from starting a role at a competing business in the field of petroleum products, but which did not sell the same types of fuel. The court dismissed United Petroleum's application for interlocutory relief on the basis that the restraints went further than reasonably necessary to protect the company's legitimate commercial interests.

Key takeaways

• Courts are likely to err on the side of the employee even if the employer has an arguable case, particularly with interlocutory injunctions where the balance of convenience often favours the employee given they are likely to suffer the greater hardship.
• Courts may be reluctant to consider detailed evidence of whether an employee was privy to strategic discussions about competing products at the interlocutory stage.

Background

The employee worked at United Petroleum as the Queensland Wholesale State Manager, where he was involved in the marketing and supply of automotive and other fuels to businesses nationally. In December 2021, he gave notice of resignation to become Sales Manager, Aviation at a competing petroleum product provider, IOR Services Pty Ltd (IOR). His new role was to be focused on aviation fuel, which was not sold at the time by United Petroleum.

The terms of his employment agreement with United Petroleum included a restraint from engaging in certain types of work after his employment with United Petroleum was brought to an end. Clause 7.1 of the contract provided that the employee would not:

(a) be involved in any activity substantially the same kind as he performed during his employment with United Petroleum in which the use or disclosure of confidential information may be useful or advantageous;

[…]

(e) be involved in a business involved in any business activity that is competitive with any business carried on by United Petroleum.

United Petroleum sought to enforce the restraints in his employment contract. It applied for interlocutory relief in January 2022. This hearing was adjourned upon the employee's undertaking that he would not commence his new role with IOR.

Court findings

As a general proposition, restraint of trade clauses are presumed void. This presumption may be rebutted where circumstances render a particular clause reasonable as between the parties and not unreasonably contrary to the public interest. In order to be reasonable, at the date of the contract the clause should:

• be imposed to protect a legitimate interest of the employer; and
• do no more than is reasonably necessary to protect that legitimate interest in its duration or extent.

The court considered this in the context of clauses 7.1(a) and (e).

Clause 7.1(a)

The court found that clause 7.1(a) was drafted to prevent the employee from undertaking employment regardless of whether he actually possessed information that could be used to undermine United Petroleum's otherwise legitimate commercial interests. This was because the restraint was enlivened not by the employee's possession of such information, but by the advantage that it might afford a new employer if possessed. The court considered on balance that this restraint was not reasonable.

Clause 7.1(e)

The court found clause 7.1(e) was wider still, seeking to prevent the employee from being concerned or interested in any business activity that is competitive with United Petroleum, which would, on its face, restrict activities regardless of whether they have the capacity to inflict relevant harm upon United Petroleum.

The employee gave evidence that United Petroleum was not involved in the marketing or supply of aviation fuel, and if it was, that those were functions in which he had no involvement. In contrast, United Petroleum maintained it was involved (and intended to expand its involvement) in that market, and as a senior employee, the employee was aware of commercial strategies to that end.

Again, the court held that the restraint went beyond what was necessary to protect the legitimate commercial interests of United Petroleum. It was unclear how the clause could be properly read down to just protect those legitimate interests.

Duties under the Corporations Act

The court commented that, for interlocutory purposes, it seemed unlikely that the employee possessed, or might have occasion to use, confidential information in a manner that offended against his duties under the Corporations Act.

Balance of convenience

On the balance of convenience, the court decided against granting interlocutory injunction relief. This is because the relief would only have precluded the employee from joining his new employer for another month, and the court considered it was unlikely enough time to cause adverse or significant consequences for United Petroleum. Any harm he could cause would be possible after the one-month period without any restriction. Further, any possible harm and impact would be very difficult to quantify at trial.

The employee also gave evidence that his inability to work in his new role for a number of months pending this hearing posed economic hardship for his family. This tended in favour of refusing interim relief against him.

The court dismissed the application and reserved costs.

Post-Jamsek and Personnel Contracting: application in the Federal Court of Australia and FWC

By Laura Miller, Tegan Ayling, Emily Grutzner and Katherine Polazzon

Fair Work Ombudsman v Avert Logistics Pty Ltd [2022] FCA 841; Searle v Luxwood Homes Pty Ltd [2022] FWC 1688

The Federal Court of Australia and the Fair Work Commission have separately delivered two judgments applying recent High Court authority (reported here) to resolve the employee or independent contractor question.

1 - Federal Court finds logistics company drivers are independent contractors

The Fair Work Ombudsman has lost an appeal in the Federal Court against a decision that four drivers working with transport company, Avert Logistics, were independent contractors rather than employees.

Key takeaways

• Incorporation or engagement through a separate legal entity is not determinative of whether an individual is an employee or independent contractor, although it remains an important consideration.
• The decision also highlights that to minimise the risk of independent contractors being regarded as employees, contractual arrangements should reflect that the contractor has some responsibility for the provision of required equipment and associated insurances.

Background

Avert provides transport, distribution and logistics services, pursuant to contracts with customers such as Toll, StarTrack and UPS.

Avert contracted separately with four drivers to perform work that Avert was obliged to perform under its customer contracts. One driver contracted with Avert through a registered company, two drivers were engaged through partnership arrangements and the remaining driver was engaged directly as an individual. Pursuant to the contracts, the drivers were required to operate vans to pick up and deliver packages to homes and businesses. The vans were supplied by Avert, but the drivers were responsible for registration of the vehicles and maintaining comprehensive insurance.

The FWO argued that various clauses in the contracts, such as those requiring the drivers to comply with directions, were indicative of an employment relationship and sought to prosecute Avert in respect of contraventions of the Fair Work Act 2009 (Cth) arising from its failure to pay the drivers employment entitlements.

The FWO was unsuccessful in the Federal Family and Circuit Court of Australia (FFCCA) and appealed to the Federal Court.

Decision

While the Federal Court acknowledged that the arrangements in this matter were much more ambiguous than those in Jamsek (particularly because the drivers did not provide their own vehicles), it ultimately concluded that the contracts between Avert and the four drivers were properly characterised as independent contractor arrangements.

The key aspects of the contract that the court pointed to in reaching its decision were:

• that the vehicles (while owned by Avert) were effectively taken into the business of the drivers;
• the drivers were responsible for all insurance relating to the use of the vehicle, along with vehicle registration;
• drivers were responsible for finding replacement drivers, where necessary; and
• the contract contemplated that the services could be rendered by an incorporated entity.

The court noted that while control is a 'hallmark of an employment relationship,' a mere ability to give direction was not decisive of whether the drivers were employees.

2 - Fair Work Commission applies multi-factorial test

In the absence of a written contract, the Fair Work Commission applied the multifactorial test to determine whether a worker was an employee or contractor.

Since the High Court's decisions in Jamsek and Personnel Contracting, it is important to keep a close eye on the development of case law as it applies to the assessment of employment and principal and independent contractor relationships.

It is prudent to ensure that these arrangements are reflected in a comprehensive written contract.

Background

Mr Searle lodged an unfair dismissal application against Luxwood Homes Pty Ltd (Luxwood), following Luxwood ending his engagement via email. However, to succeed, Mr Searle needed to convince the FWC that he was in fact an employee of Luxwood and not an independent contractor, since independent contractors are not eligible to make unfair dismissal applications.

Luxwood said that Mr Searle was initially engaged as a volunteer, but after he started invoicing Luxwood on behalf of his financial software company, Anypoint Pty Ltd, it had little control over his hours, rate of pay and how he ran his business. According to Luxwood, Mr Searle did not work exclusively and could subcontract or delegate the work. Mr Searle disagreed, arguing that Luxwood had control over his work, including by requiring him to work outside of normal business hours and prioritise particular work.

Decision

As to whether Mr Searle was an employee or contractor, the FWC reiterated the decisions of the High Court in Jamsek and Personnel and the principle that the parties' legal rights and obligations will determine whether an individual is an employee or a contractor (see the decisions here).

In this case, there was no written contract and so the FWC conducted a multifactorial assessment of Mr Searle and Luxwood's relationship in the absence of comprehensive written terms and conditions. It also appears there was no evidence of an oral contract, as there was with the Federal Court decision of Pruessner, which we have previously written about here.

The FWC decided that Mr Searle was an independent contractor. Based on the available evidence, Mr Searle determined his own hours, location and work priorities and had the ability to work for others. Anypoint's software was also owned by Mr Searle and licensed by Luxwood. Relevantly, Mr Searle 'embedded' himself into Luxwood's business so much so that it let Mr Searle determine the needs of the business, so in the FWC's view Luxwood exercised little control before it took it back by ending the relationship.

Amendments to the Model WHS Laws: implementation of the Boland Review recommendations

By Maaike York and Andrew Wydmanski

Psychosocial risks, gross negligence, fine insurance and notice periods

The model WHS Act and model WHS Regulations have been amended, in part to reflect the findings of Marie Boland's Review of the model Work Health and Safety laws (Boland Review). The Boland Review included 34 recommendations, with the latest amendments taking up 20 of those recommendations.

The June 2022 amendments include (among other changes) changes to deal with psychosocial risks, the addition of gross negligence as a fault element in the Category 1 offence, a prohibition on insurance for WHS fines and removal of the 24-hour notice period for entry permit holders.

Interestingly, there has been no implementation of a new offence of industrial manslaughter, as recommended by the Boland Review.

Key amendments to the model WHS laws

• Model WHS Regulations to deal with psychosocial risks

Model WHS Regulations 55A-55D have been included to impose specific obligations in relation to psychosocial risks. It sets out the definition of psychosocial risk as a risk to the health or safety of a worker or other person arising from a psychosocial hazard. Psychosocial hazard, in turn, is defined as a hazard that arises from, or relates to (i) the design or management of work or (ii) a work environment or (iii) plant at a workplace or (iv) workplace interactions or behaviours and that may cause psychological harm (whether or not it may also cause physical harm). A person conducting a business or undertaking (PCBU) must manage psychosocial risks and must implement appropriate control measures to eliminate or minimise those risks, which requires consideration of all relevant matters.

• Model WHS Act to include gross negligence as a fault element in the Category 1 offence

Section 31 of the model WHS Act now includes gross negligence as a fault element as an alternative to recklessness. This was the amendment agreed upon rather than introducing a new offence of industrial manslaughter. Unlike recklessness, gross negligence does not depend on the prosecution proving that the offender had a subjective awareness that their conduct posed a substantial risk of death or serious injury or illness and continued on with their conduct regardless. The Explanatory Memorandum notes that this is intended to lower the threshold for conviction. Each jurisdiction is able to replace 'gross negligence' with a term consistent with that jurisdiction's laws.

• Model WHS Act to prohibit insurance for WHS fines

Section 272A of the model WHS Act prohibits entering into a contract of insurance or other arrangement that covers (all or part of) the costs of a monetary penalty imposed under the model WHS Act, providing insurance or a grant of indemnity for the same or taking the benefit of such a contract of insurance, arrangement or grant of indemnity. The section also makes void any term of an insurance contract or other arrangement to the extent that it purports to cover a person for all or part of a liability for a monetary penalty under the model WHS Act. These changes reflect bans already introduced in several jurisdictions including NSW, Victoria and Western Australia.

• Model WHS Act to remove 24-hour notice period for entry permit holders

Under section 117 of the model WHS Act, a WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of the model WHS Act and is no longer required to provide at least 24 hours' notice to do so. However, under section 119, the WHS permit holder must give notice of the entry and suspected contravention as soon as practicable after entering the workplace.

How does this affect you?

The amendments to the model WHS laws do not have automatic effect; rather, these amendments will only come into effect once they are enacted in a jurisdiction.

NSW and WA have already implemented several of the Boland Review recommendations, including in relation to the prohibitions on insurance for WHS penalties. The new WA WHS laws came into effect on 31 March 2022; you can read our summary of the new law here.

Employers should be aware that other states and territories may soon implement the model WHS laws. We will publish updates as they arise.

Green light for Victorian employers to individually decide their approach to COVID-19 safety

By Alana Perna and Chloe Wilton

Employers to take the COVID-19 lead

Following the relaxation of government-imposed COVID-19 vaccination requirements in Victoria, employers must now determine whether they will impose COVID-19 vaccination requirements to ensure the health and safety of workers and others in their workplaces. To assist employers in that regard, there are new regulations in Victoria that, amongst other things, allow employers to collect COVID-19 vaccination information to enable them to comply with their health and safety duties. This Insight will provide a brief overview of the new regulations.

How does this affect you?

• In light of relaxed COVID-19 vaccination requirements in Victoria's Pandemic Orders, employers should conduct their own risk assessment to determine whether they will impose COVID-19 vaccination requirements to ensure the health and safety of workers and others in their workplaces.
• Employers in Victoria can collect, record, hold and use COVID-19 vaccination information about their employees, contractors and volunteers to determine and implement reasonably practicable measures to control the risks to health and safety associated with COVID-19 in their workplaces.

Stripped back pandemic orders

Despite soaring case numbers, the vaccination requirements contained in Victoria's pandemic orders have been stripped back. Under the current orders, only employers of workers in healthcare, residential aged care or specialist school facilities and employers of custodial, disability or emergency services workers are required to ensure their employees are vaccinated against COVID-19.

In light of these relaxed vaccination requirements, employers should conduct their own risk assessment to determine whether they will impose COVID-19 vaccination requirements to ensure the health and safety of workers and others in their workplaces.

To assist employers in that regard, the Victorian Government has introduced amendments to the Victorian Occupational Health and Safety Regulations 2017 (Vic). The amendments permit employers to collect, record, hold and use COVID-19 vaccination information from employees, contractors and volunteers, to enable the employer to determine and implement reasonably practicable measures to control the risks to health and safety associated with COVID-19 in their workplaces.

Vaccination information can be derived from:

1. an immunisation register kept under the Australian Immunisation Register Act 2015 (Cth);
2. a letter from a registered medical practitioner; or
3. a certificate issued by Services Australia relating to a contraindication or acute medical illness.

In a statement, the Victorian Government confirmed that the regulations do not require workers to be vaccinated, but ensure employers have the information they need to make decisions on necessary control measures at their workplace, which may include vaccination.

The amendments took effect on 12 July 2022 and will apply for 12 months.

Uber and the Transport Workers' Union sign to support minimum standards for gig workers

By Madeleine Andreopoulos and Laura Miller  

In brief

In a landmark agreement on 28 June 2022, Uber and the Transport Workers' Union (TWU) signed a Statement of Principles to protect the flexibility of workers in the on-demand economy and support the creation of minimum standards in their favour.

Key takeaways

• Businesses within the sector in which the TWU operates should be mindful of the increased pressure they may now face to enter into similar agreements regarding the minimum standards of gig workers.
• Employers who engage independent contractors should also be cognisant of how the Federal Government's intention for legislative reform may impact their current arrangements with these service providers.

Background

Workers in the on-demand economy are rarely able to access the same entitlements that they would otherwise be eligible for as formal employees. Based on the following principles, Uber and the TWU have signed to support the establishment of an independent body that can create industry-wide standards for these workers. The objectives of this agreement will likely be facilitated by the Government's proposed legislative reform to provide the Fair Work Commission with expanded powers to set new minimum standards for 'employee like' forms of work.

What are the principles?

The agreement supports the creation of new minimum standards for gig workers regarding:

• minimum and transparent earnings and benefits/conditions for platform workers;
• a cost-effective and efficient mechanism to resolve disputes, such as the deactivation of relevant platform worker accounts;
• the rights of platform workers to join and be represented by the relevant Registered Organisation that will afford them an effective collective voice; and
• appropriate enforcement mechanisms to meet these standards and objectives.

In addition to these principles, the TWU and Uber have further committed to participate in good faith discussions aimed at reaching set industry standards with other participants in the on-demand economy, provided they agree to do so.

This agreement echoes the Statement of Principles signed by food delivery platform DoorDash and the TWU in May 2022 (see our Insight). Whilst both statements emphasise the need for reform of a similar nature in the on-demand economy, the DoorDash agreement additionally called for appropriate resources to be allocated towards education and training facilities for drivers. Both agreements highlight the TWU's intention to collaborate with industry leaders and drive effective change in this space.

Payroll compliance update: employment-related class actions

By Veronica Siow and Kathleen Weston

A Federal Court Justice has held that a class action application is too complex to run without lawyers, leaving that matter in limbo unless legal representation is obtained.

Employment-related class actions

Whilst fewer class actions were filed overall in the Federal Court of Australia (FCA) in 2021 as compared with 2020, the percentage of employment-related filings rose by 9% in that same period.

There are currently 33 'open' employment-related class actions in the FCA—this makes employment-related claims the second-largest type of class action for the first time in five years, just one matter behind commercial and corporations claims.

At the same time, the Government has promised greater funding for the FWO, which could signal an increase in enforcement proceedings by the FWO.

Can you have representative action without legal representation?

Wilkinson v Wilson Security Pty Ltd [2022] FCA 756

A FCA judge recently handed down an interlocutory decision in a class action proceeding against Wilson Security that means the proceeding cannot continue as a class action without legal representation.

The unrepresented lead applicant in the Wilson Security class action commenced and ran the class action claim for over a year until Wilson Security put on application seeking to have the claim dismissed.

In coming to his decision, Justice Colvin noted that lay people do not have the right to act as an advocate for another without leave of the court. His Honour indicated he had real doubts as to whether, without leave, a representative applicant would be able to take an active role in the making of submissions and otherwise undertaking the forensic conduct of representative proceedings on behalf of group members.

His Honour suggested that the appropriate course to be followed was that a self-represented lead applicant should seek leave at the earliest opportunity. If leave is refused, as he indicated he expected it would be in almost all instances, then the proceedings will come to an end if legal representation is unable to be obtained.