Comcover Legal Services Information Forum Series Forum 1

Sparke Helmore Lawyers

Comcover Legal Services Information ForumSeries –Forum 1

This publication is not legal advice.

Wednesday, 23 October 2013Page 2 of 2

Sparke Helmore Lawyers

Work Health and Safety Act Crossover into Fair Work Act

Introduction

There is no legal progression or hierarchy between the Work Health and Safety Act 2011 (WHS Act) and the Fair Work Act 2009 (FW Act). However, safety issues arise in relation to a number of areas regulated under the FW Act, including:

bullying
unfair dismissal
general protections
right of entry, and
industrial action

This presentation is an overview of how a safety issue can found a multiplicity of claims under the FW Act.

New Bullying jurisdiction – Part 6-4B

Bullying can be the subject of a safety investigation under the WHS Act.

Part 6-4B of the FW Act commences on 1 January 2014 and provides the first dedicated avenue for complaints of workplace bullying.

Bullying occurs where:

while at workan individual or group repeatedly behaves unreasonablytowards the worker and that behaviour creates a risk to health and safety.

It does not include reasonable management action carried out in a reasonable manner.

The term worker has the same expansive meaning as under the WHS Act – includes more than employees.

The Fair Work Commission (FWC) may make any order to prevent the alleged bullying but not a pecuniary award.

Unfair dismissal – Part 3-2

Safety can arise in unfair dismissal applications in the following ways:

employer claims termination of employment was warranted due to safety breach, and
employee claims termination was because he/she raised a legitimate safety concern.

Wayne Chadwick v Woodside [2011] FWA 2890

Monique Neeteson-Lemkes v Jetstar [2013] FWC 5840 (on appeal)

General protections – Part 3-1

FW Act includes general workplace protections:

against adverse action because of a workplace right, and
relating to industrial activities.

Workplace rights include:

raising a safety issue, and
making a workers compensation claim.

Adverse action claim:

onus of proof is on employer not complainant (s 361), and
workplace right needs to be a reason for the action, not the only reason (s 360).

Civil penalty provisions.

AFMEPKIU v Visy [2013] FCA 525

Burke v Serco [2012] FMCA 1134

Right of entry

Area of direct cross-over between the FW Act and WHS Act.

Entry permits issued under FW Act and WHS Act.

Industrial action

Unlawful industrial action does NOT include action based on reasonable concern about safety (and where employee has not unreasonably refused to perform other duties).

Author

Janice Nand, Consultant
Sparke Helmore Lawyers
p: +61 2 9373 3517
e:

This publication is not legal advice.

Wednesday, 23 October 2013Page 2 of 2

Sparke Helmore Lawyers

You should seek professional advice before acting on the basis of anything in this publication

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