Workplace Relations Update for Executive on-the-go

 Personal liability for owners of photography business for telling employee pregnancy “was not a good look

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In this edition:

  • family run photography business ordered to pay $235,000 for discriminating against a pregnant employee;
  • 350 site visits by Fair Work Inspectors announced as reminder to use good record keeping practices; and
  • amendments to work health and safety laws in Queensland now in effect.

 Personal liability for owners of photography business for telling employee pregnancy “was not a good look

The unfair treatment of pregnancy in the workplace continues to be condemned by the law as the owners of a photography business recently learnt when they were found by the Federal Court to be jointly liable to pay compensation of $174,000 plus penalties of $61,000 to a pregnant employee for her constructive dismissal.

The case was brought by Ms Sagona, a photographer, against the owners of the business where she had worked for 12 years.  Ms Sagona alleged that she had been constructively dismissed from her role due to the actions of her employer after she announced that she was pregnant.

Ms Sagona argued that after announcing her pregnancy she was told that she could not do photo shoots or have sales appointments beyond a certain time because it was “not a good look” for customers to see a pregnant woman in the business.  The business also decided that Ms Sagona should take a pay cut and work longer hours.  Ms Sagona described the owners’ concern and annoyance about the impact her proposed maternity leave and part time employment after the birth would have on their retirement plans.

Ms Sagona ultimately resigned four weeks after informing her employers of her pregnancy.

The Court agreed with Ms Sagona that the actions of her employers put her in a position where she had no choice but to resign and that those actions constituted adverse action in breach of the Fair Work Act.  The Court also found that Ms Sagona had been injured within the meaning of the Act due to the owners’ request that she work longer hours and their refusal to let her return to work on part-time basis.

In determining the amount of penalties payable by the owners the Court emphasised the need for deterrence to ensure that women should be able to continue with their career during and after pregnancy, particularly in respect to employees of small businesses.

Whilst the behaviour of the business owners in this case may seem outrageous, in our experience it is not unusual for small and medium sized employers to have a limited understanding of the rights of their employees or their own workplace responsibilities.

In this case the $200,000 order would be unlikely to be covered by insurance and an unbudgeted loss of this magnitude would be likely to cause financial distress to a lot of small businesses.

The lesson to be learnt is that employers need to be aware of their workplace relations obligations and implement appropriate human resources and workplace safety policies and procedures designed to manage such situations.

 

Fair Work Ombudsman plans site-visits to enforce good record keeping practices

The Fair Work Ombudsman has issued a reminder to employers on the importance of maintaining proper employment records and at the same time announced 350 site visits across Australia by Fair Work Inspectors.

The upcoming site visits will take place at selected business centres across NSW, Victoria, Queensland, Tasmania and the ACT.

The Fair Work Act requires employers to keep adequate ‘employee records’ of the kind prescribed by the Fair Work Regulations (e.g. time worked, leave taken and wages paid) in addition to issuing pay slips to employees. These records need to be kept for seven (7) years.

This may seem like a ‘no brainer’, however, many employers we talk to admit that they have a certain amount of leakage when it comes to their record keeping procedures.  Others struggle with identification and management of the awards that apply to their staff.

A failure to comply with the record keeping requirements of the Fair Work Act may result in an on-the-spot ‘speeding ticket’ or infringement notice in the amount of up to $510 per contravention for individuals and up to $2,550 per contravention for businesses.  Repeated, serious or wilful failure to meet your record keeping obligations may result in court proceedings which can result in higher penalties.

For more information on the powers and access rights of Fair Work Inspectors and your record keeping requirements visit the Fair Work Ombudsman website.

 

Amendments to work health and safety laws in Queensland: power to stop work and union right of entry

Amendments to Queensland’s Work Health and Safety Act (WHS Act)came into effect on 16 May 2014. These amendments implement findings from the Queensland Government’s review of national model WHS laws which commenced in Queensland on 1 January 2012.  The amendments remove the power of Health and Safety Representatives (HSR) to stop work and limit the rights of WHS permit holders (usually union officials) to enter and inspect worksites and records.

What were the issues under the previous laws?

Under the previous regime (and this still applies in NSW, SA, Tasmania, NT and ACT), WHS entry permit holders only had to give ‘reasonably practicable’ advance notice of their entry to a worksite.  Once there, they could inspect premises, equipment, records, and consult with “relevant workers”.  Similarly, a HSR could request that a WHS entry permit holder enter the premises to “assist” a HSR.

The breadth of powers given to permit holders ultimately led to allegations of abuse involving ‘surprise’ visits to worksites based on unsubstantiated health and safety concerns. Further disruption resulted from HSR’s then exercising their power to stop work.

What has changed?

The amendments aim to minimise unwarranted work disruptions. They also encourage greater direct engagement between employers and their workers on health and safety issues.

The changes include:

  • requiring WHS entry permit holders to give at least 24 hours’ written notice (but not more than 14 days) and outline any suspected safety contraventions before entering a workplace;
  • the same notice provisions apply where a HSR requests a WHS entry permit holder to enter the worksite to assist them;
  • doubling  maximum fines for breaches of entry permit requirements to more than $20,000; and
  • removing the power of HSR’s to direct workers to cease ‘unsafe’ work.

Note that workers still have a statutory right to stop or refuse unsafe work. HSR’s can still issue provisional improvement notices if they have WHS concerns and they have completed accredited training.

CompliSpace clients with employees in Queensland will receive updates to their WHS module to reflect these changes. An email will be sent to advise you.

How can CompliSpace help?

CompliSpace’s HR and WHS policies, procedures and training & testing modules, help managers and staff to know what is expected of them and ensures they have key tools and information at their fingertips at all times. This enables a business to meet its WHS obligations while building a positive corporate culture, capturing knowledge and saving time.

Compliance with Current and Future Child Protection Laws – Embedding a Child Protection Culture. How can this be achieved?

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