Workplace Matters - Sparke Helmore Lawyers

Transcription

Workplace Matters
Sparke Helmore Lawyers
Issue 3 | November 2013
Inside:
High Court rules on hotel sex case
Social media
Covert recordings
Workplace bullying
Workplace Matters | Issue 3
Looking over the horizon
In this issue, we take a look at the High Court decision in
Comcare v PVYW, which many of you will have seen in the
media. We acted for Comcare in this matter and the case
considered whether an employee is acting “in the course
of employment”. The boundary between at work and
outside of work has become blurred and this decision has
brought this line back into focus.
Contents
Welcome3
By Matthew Smith, Workplace National Practice Group Leader, Sparke Helmore
High Court rules on hotel sex case 4
Work vs outside work and lessons from the High Court decision in Comcare v PVYW
Blurring the lines: social media and the implications for employers
6
Practical tips to manage the risks
Another use for mobile phones: self-protection or unlawful action? 8
Insights from two recent cases
Increase in WHS legal risks with workplace bullying
10
Insights into the snowball effect
Does my insurance cover this? 12
The impact of South Australia’s Hillman v Ferro Con case on WHS penalties
Recent developments
14
Seminars, training and recent legal developments that affect employers
We look at the various impacts on employers from
employees’ personal use of technology, including the need
to manage the risks associated with employees’ use of
social media. We also look at some recent decisions in cases where employees used
their mobile phones to covertly record conversations.
With the Fair Work Commission exercising new powers from 1 January 2014,
employers will be subjected to the powers of the industrial relationship umpire as well
as work health and safety regulators. We look at the potential issues for employers and
highlight precautions they can take.
We were a finalist in the Professional Services category at the 2013 NSW Mining
Suppliers Awards. Our NSW safety team were recognised for their innovative work on
GlencoreXstrata’s BlakefieldSouth underground coal operation in the Hunter region.
GlencoreXstrata wanted to increase the capacity of an armoured face conveyor (AFC)
to maximise the amount of product it could extract from its new 400 m wide longwall
face. To power the AFC, the mine needed to move from the industry standard 3.3kV
capacity to 11kV capacity. This was an ambitious project and the first of its kind.
Our firm built a “safety case” legal solution for the use of the 11kV to demonstrate
to the regulator that this equipment wouldn’t increase the risks of working within the
“hazardous zone” underground. The case addressed each of the regulator’s concerns
and provided supporting documentation to allow the introduction of 11kV.
I’d like to acknowledge Paul Cutrone, Joanne Flitcroft and Sarah Goodhew who all
contributed to the project. This project highlights what can be achieved when legal
safety expertise is combined with industry knowledge to solve a problem proactively,
rather than through litigation.
I’m also delighted that we have again been ranked in Legal 500—a comprehensive,
international directory that has reviewed law firms for more than 20 years.
If you have any questions or suggestions about Workplace Matters contact the editor,
Clayton Payne, on +61 7 3016 5023 or [email protected]
If there are any other topics you’d like us to explore in this publication, please email me
at [email protected]
If you would like to receive a soft copy of future issues, please send an email to
[email protected]
Sincerely,
Copyright 2013 © Sparke Helmore
This publication is not legal advice. It is not intended to be comprehensive. You should seek
specific professional advice before acting on the basis of anything in this publication.
Page 2 | November 2013 | Sparke Helmore Lawyers
Matthew Smith
Workplace National Practice Group Leader
Sparke Helmore Lawyers
Sparke Helmore Lawyers | November 2013 | Page 3
High Court rules on hotel sex case
By David Davies and Phil Lee
On 30 October 2013, the High Court handed
down judgment in Comcare v PVYW [2013]
HCA 41, which has been referred to as the
“hotel sex” case, in favour of Comcare.
Sparke Helmore Lawyers acted for Comcare
in this matter.
The case dealt with the issue of when
an employee is acting “in the course of
employment”. This has been a difficult issue
for employers for many years, as the once
reasonably clear boundary between at work
and not at work has become blurred.
The background
intercourse in an interval, or interlude, in an
overall period of work was an ordinary activity,
like showering or sleeping, so should be
compensable.
The AAT rejected the claim on the basis that
the employee’s activity at the time of injury
was not associated with her employment and
was not at the direction or request of her
employer. The employee successfully appealed
that decision in the Federal Court, which found
she was entitled to compensation. Comcare
appealed the Federal Court’s decision to the
High Court.
PVYW (the employee) was a Commonwealth
Government employee who was injured while
engaging in consensual sexual intercourse in
her motel room during an overnight work trip.
The High Court decision
The employee argued before the
Administrative Appeals Tribunal (AAT) that
because she was at the motel at the instigation
of her employer, her injuries were suffered “in
the course of her employment”.
A majority of the High Court decided that for
an injury to be considered to have occurred in
the course of employment, it is necessary to
ask: did the employer induce or encourage that
employee to engage in that activity?
It was not suggested by either party that the
employee’s actions amounted to misconduct
and the employee claimed that engaging in
On the facts of this case, the majority of
the High Court held that the answer to that
question was “no”. In doing so, the majority
maintained that a previous High Court decision
in Hatzimanolis v ANI Corporation (1992)
173 CLR 473 did not broaden the scope
of employment to allow mere “presence
at place” to be sufficient for an injury to
be sustained in the course of employment.
The majority agreed with Comcare that the
decision in Hatzimanolis required consideration
of both presence at place and the activity being
undertaken.
“While the High Court’s decision
relates specifically to a workers’
compensation matter, it appears
as though its decision relating
to the concept of ‘in the course
of employment’ also has the
potential to impact on an
employer’s decisions about more
general employment law issues.”
The High Court allowed the appeal and
held that Comcare was not liable to pay
compensation to the employee.
Specifically, the majority stated that “for an
injury occurring in an interval or interlude
in a period of work to be in the course of
employment, the circumstance in which an
employee is injured must be connected to
the inducement or encouragement of the
employer”.
Relevance to employment law
While this issue arose in the context
of a workers’ compensation claim, the
judgment may have broader implications
for the employer and employee relationship.
Employers are entitled to take an interest in
their employees’ activities when they are in the
course of employment. The range of activities
that occur outside the normal hours of work
or between shifts can give rise to numerous
employment law issues. These include matters
such as workplace bullying, sexual harassment,
discrimination and termination of employment.
Sexual harassment
Employers have previously been held liable for
sexual harassment claims that have occurred
outside working hours and away from the
working premises, unless the employer can
provide evidence that it took “reasonable
steps” to prevent the harassment.
The High Court judgment may provide a
glimmer of hope that employers may be able
to argue that a harasser was in fact outside
of their employment when the harassment
took place. If there was no inducement or
encouragement from the employer that relates
to the harassment, then an employer may
attempt to argue that it is not liable for the
acts of its employees.
Equally, an employer who wants to take an
interest in employees out of hours conduct
may now be more constrained in their ability to
do so. This has already happened in the unfair
dismissal case of Streeter v Telstra Corporation
Limited [2007] AIRC 679. In that matter, a
group of employees privately organised and
paid for hotel accommodation for the night
of their Christmas party. Following the party,
the employees returned to the hotel room
where an employee (Ms Streeter) engaged in
sexual activities with two of her co-workers.
Complaints were made to the employer by
co-workers who did not engage in the sexual
activities and, as a result, Ms Streeter was
dismissed for sexual harassment.
justify termination of employment. The fact
that Ms Streeter’s conduct occurred outside
working hours, after a work function and in a
hotel room that was privately paid for removed
her conduct significantly from the workplace
and, consequently, her dismissal was held to
be harsh, unjust or unreasonable.
Social media
Many employers are implementing social
media policies as the use of social media
as a forum to express opinions about their
workplace and colleagues can have significant
consequences. In O’Keefe v William Muir’s
Pty Ltd [2011] FWA 5311, an employee (Mr
O’Keefe) was dismissed for making disparaging
comments about his employer making payroll
errors. In ruling that his dismissal was fair,
the Commission held “the fact that the
comments were made on the applicant’s
home computer, out of work hours, does
not make any difference…The respondent
has rightfully submitted, in my view, that the
separation between home and work is now
less pronounced than it once used to be.”
We can’t help but wonder if the High Court
judgment may affect that finding in similar
cases in the future.
Lessons for employers
While the High Court’s decision relates
specifically to a workers’ compensation matter,
it appears as though its decision relating to the
concept of “in the course of employment” also
has the potential to impact on an employer’s
decisions about more general employment law
issues.
At this time of year, one of those issues is
whether conduct around annual Christmas
parties or other work-related functions is
within the course of employment or not. We
suggest that it is time to consider the rules you
establish for your functions. It would be wise to
be very clear that, as an employer, you do not
in any way induce or encourage inappropriate
workplace behaviour.
In Streeter, it was noted that the less direct
the relationship with the workplace, the more
serious the misconduct would need to be to
Blurring the lines: social media and the
implications for employees
By Dianne Hollyoak and Dominique Mayo
Australia has some of the highest per capita
use of social media in the world. While social
media offers a range of communication
channels locally and internationally that
are without cost to users, it is increasingly
encroaching on our working lives; an effect
its creators might never have contemplated
becoming a legal issue.
The most significant legal challenge that
social media presents to employers and
employees alike is the blurring of personal and
professional lines when employees use social
media. It has been recognised by the courts
that the “separation between home and work
is now less pronounced than it used to be”
(Deputy President Swan in Damian O’Keefe v
Williams Muir’s Pty Ltd.)
Facebook—upcoming privacy change
A recent development by Facebook to
implement the removal of a privacy setting
“Who can look up your Timeline by name?”,
which allows users to prevent their individual
profile from being searchable on Facebook,
has sparked discussion surrounding the
future degree of privacy protection afforded
to Facebook users. The change will be
implemented in the coming weeks according
to Facebook’s Chief Privacy Officer,
Michael Richter.
While users can currently opt in to hide their
profile in Facebook search results, the change
means their profiles will become searchable
on Facebook and likely be searchable through
external search engines, for example, Google.
The issue appears to have created a divide
between users. Some users argue that due to
the service being “no cost”, they must simply
abide by the terms and conditions of use that
are subject to change at the whim of the
service provider. Other users argue that the
service, since its inception, has had an inbuilt
privacy feature providing control over what
users may consider to be sensitive personal
information, or information that they do not
wish to be publicly available.
On 10 October 2013, Richter posted on the
“Newsroom” component of Facebook that
“the best way to control what people can find
about you is to choose the audience of the
individual things you share” and, regarding
posts pre-dating the privacy change, “with
one click, you can limit the audience of posts
you’ve shared in the past”. Another option
for users concerned about the impact of the
privacy change is to cease using and delete
their Facebook account.
Recent development in the law
A recent case heard in the Federal Circuit
Court, Banerji v Bowles [2013] FCCA 1052,
touches on the issue of “blurring” when it
comes to social media use by employees.
In this case, a public servant argued that her
social media activity (tweets made to some 700
followers) was “protected by the constitutional
right / freedom of political communication”
and was a “simple expression of political
opinion, made in her own time away from
work”.
Justice Neville made the finding that there
is no unfettered right or freedom of political
expression, and that politically charged
comments on Government policy coming from
an anonymous Twitter account constituted
a breach of the Government’s social media
policy.
This case serves as a reminder that even in
circumstances where social media use is
external to the workplace, away from the
employee’s place of employment and outside
working hours, the consequences may impact
an employee’s employment.
Opportunities and challenges
Social media offers opportunities for both
personal and professional growth and enables:
• improved communication, participation,
collaboration, openness and connectedness
within the workplace
• recruitment opportunities
• business development and marketing
opportunities
• professional development of employees,
and
• information dissemination.
While the use of social media can be
beneficial to employees personally, as well
as the workplace, it can also have potentially
negatively impacts on:
• professional and commercial activities
• brand and reputation
• client information, and
• confidentiality.
“Confidential information” is any information
provided by a client in confidence. It is critical
that employees understand their obligations
arising under their employment contract and
the employer’s confidentiality policy.
Workplace bullying and possible harassment
allegations may also arise as a consequence
of social media usage. While employees
are personally liable for their actions, those
actions may result in adverse action claims
or, in circumstances where an employee has
been “let go” following a social media-related
incident, an unfair dismissal claim against the
employer.
Social media policy
Employers should clearly articulate what does,
and does not, constitute appropriate social
media use in a social media policy. This extends
to the timing of any employee’s use of social
media, for example, an employer can prohibit
social media use or limit the channels that can
be used during working hours.
Ultimately, the degree of intrusion on workers’
privacy contemplated by any social media
policy should reflect the employer seeking to
protect its business interests and reputation.
Practical tips
To effectively manage the risks associated with
social media, employers should:
• implement a social media policy and ensure
it remains up-to-date with technological
advances by nominating a review timeframe
• consider restricting use of social media
channels during working hours to maintain
workplace productivity
• identify social media platforms to encourage
in the workplace and acceptable uses of
those platforms for business purposes
• highlight to employees the risks to their
employment regarding their personal
use of social media channels, including
that posting offensive, derogatory and
discriminatory comments about the
employer or threatening or insulting
comments about other employees
constitutes serious misconduct, which may
lead to termination of employment
• monitor social media activity to guard
against brand-damaging posts appearing
on social media—it is particularly important
to monitor employee activity when the
employer is featured in the media
• ensure the social media and IT policies make
it clear that employees waive their right to
privacy regarding anything created, stored
or received via the company’s IT system, and
• advise employees that their failure to
remove a post, tweet or other comment,
when reasonably directed to do so, will
constitute a valid reason for termination of
employment.
Another use for mobile phones:
self-protection or unlawful action?
By Roland Hassall and Ian Bennett
Many employees have their own mobile
phones in the workplace; but not all employers
have policies that regulate the use of personal
or employer-supplied mobile phones.
that the recordings, which she made covertly
and without the knowledge of the managers
involved, showed that she was forced to
resign.
Recent legal decisions involving employees
who covertly recorded conversations on
their mobile phones considered whether the
evidence recorded on their phones could be
used in hearings before the tribunal or court
involved, with different results. They also
discuss the impact of this type of conduct on
the employment relationship.
She asked the Fair Work Commission to admit
this evidence. Her employer opposed this.
Surveillance devices legislation
All Australian jurisdictions have legislation
intended to restrict the use, communication
and publication of information obtained
through the use of surveillance devices, such
as the Surveillance Devices Act 2007 (NSW).
Under these laws, “devices” include mobile
phones that can record conversations.
Generally speaking, the legislation provides
that devices cannot be used to overhear,
record, monitor or obtain private information
or communications without the consent of
the people involved. These provisions are not
limited to the workplace.
However, the legislation also provides that
such actions may be considered permissible if
covered by an exemption within the legislation,
for instance when it is “reasonably necessary”
for the protection of the person’s lawful
interests.
Contraventions of these acts may result in
penalties ranging from fines to imprisonment,
for example in NSW this is up to five years’
imprisonment.
Recent cases
In Haslam v Fazche Pty Ltd t/as Integrity
New Homes [2013] FWC 5593, Ms Haslam
sought to rely on recordings of meetings
with two managers of her former employer,
Fazche. Ms Haslam alleged that she had
been constructively dismissed and asserted
Commissioner Wilson noted that he would
start from the position that evidence
improperly obtained under the relevant South
Australian legislation would not be admitted,
unless he was convinced that the desirability
of admitting the recordings into evidence
outweighed the undesirability of admitting
them. The Commissioner concluded that, in
this case, while the recordings “may potentially
assist” in determining the claim, it was unlikely
they would solely determine the primary issues
in dispute.
The recordings were rejected as inadmissible.
In Wintle v RUC Cementation Mining
Contractors Pty Ltd (No 3) [2013] FCCA 694,
Mr Wintle similarly recorded a conversation
with a supervisor, Mr Hazell, without his
consent.
However, unlike Ms Haslam, Mr Wintle had
inadvertently recorded a meeting with Mr
Hazell when he had intended to covertly
record conversations with other people at
work whom he alleged had been subjecting
him to race discrimination. When Mr Wintle
was terminated for performance issues, he
considered that the inadvertent recording
involving Mr Hazell may assist in establishing
his breach of contract claim.
Unlike Ms Haslam’s matter, the employer
consented to the admission of the recording
and the court ultimately accepted it, despite
it being “the result of an impropriety or in
contravention of Australian law”. It was
admissible as it was:
• the best evidence of what was said at the
meeting
• likely to assist significantly with determining
a relevant fact in issue, and
• inadvertently (as opposed to intentionally)
obtained.
In Thomas v Newland Food Company Pty Ltd
[2013] FWC 8220, Mr Thomas covertly and
intentionally recorded numerous conversations
with human resources and management
representatives of his former employer,
Newland.
Newland did not object to the use of the
recordings and ultimately sought to rely upon
them in support of their position. However,
Deputy President Sams commented on what
he considered to be the “more serious issue”,
that is, the impact of covert recordings in the
workplace on the employment relationship.
DP Sams was of the view that “there could
hardly be an act which strikes at the heart
of the employment relationship, such as to
shutter any chance of re-establishing the trust
and confidence necessary to maintain that
relationship, than the secret recording by an
employee of conversations he or she had with
management”. While he conceded that “there
may be sound reasons why an employee (or an
employer for that matter) believes it is necessary
to secretly tape workplace conversations” he
maintained that such conduct is “well outside
the normal working environment and contrary
to the well understood necessity for trust and
fidelity in the relationship between employee
and employer”.
It was maintained that these circumstances
would generally demonstrate a complete
breakdown of the employment relationship
and militate against the employee returning to
work.
Practical guide for employers
These cases deal with the admissibility of
evidence obtained by mobile phones, with
differing outcomes.
The usual approach taken by the courts will be
that covert recordings in a work environment
will be inadmissible unless it can be shown
that the potential benefits of admitting the
evidence outweigh the undesirability or
prejudice that may be suffered. If both the
employee and the employer consent to the
use of such information in proceedings, it is
likely that a tribunal or court will include the
evidence.
Beyond the issue of admissibility in
proceedings, the cases may also have
implications for employees with defined
obligations under policies or codes of conduct
that require them to deal with others in the
workplace in an open and honest manner.
Arguably, a covert recording of a conversation
with a fellow employee or a supervisor may
breach such a policy or code, or even the
implied term of mutual trust and confidence
that exists between employer and employee.
Employers may want to consider whether
they require employees to attend meetings
without mobile phones (and other recording
equipment) or to declare that they are not
recording a meeting before it commences.
These requirements may be included in general
policies covering the appropriate use of mobile
telephones or audio-visual devices in the
workplace.
While the implementation of these policies may
not completely alleviate issues associated with
covert recording by employees, it would likely
improve the employer’s position in protecting
its interests. For example, a policy that states
the recording of private conversations without
consent is not permissible may assist an
employer in resisting the admission of this
information in proceedings. It may also warrant
disciplinary action against any employees
involved.
“...should [employers]
proactively take steps to
regulate the way mobile
phones may be used in
the workplace, particularly
during disciplinary or similar
meetings?”
Increase in WHS legal risks with
workplace bullying
The new anti-bullying powers to be exercised
by the Fair Work Commission (FWC) from 1
January 2014 will fundamentally change the
legal landscape and the way organisations will
manage instances of workplace bullying.
The new laws mean that, for the first time,
organisations will be subject to the powers
of the industrial relations umpire, as well as
work health and safety (WHS) regulators for
workplace bullying.
This article considers the impact of the new
laws and what organisations should do to
manage the increased risk.
having been dealt with by the FWC, will be
investigated by the WHS regulator.
By Alistair Talbert
The anti-bullying provisions
The new anti-bullying provisions in the Fair
Work Act 2009 (FW Act) enable a worker
who believes they have been bullied at work
to apply to the FWC for an order. If the FWC
is satisfied that bullying has occurred and
there is a risk it will continue, it can make any
order it considers appropriate to prevent the
worker being bullied. The only limitation on
the scope of the orders that can be made is
that an order cannot include the payment of a
pecuniary amount.
The type of orders that the FWC could issue
include requiring an organisation to:
• comply with its internal workplace bullying
policies
• provide necessary information, support or
training to the worker, and
• undertake a review of its workplace
bullying policies.
The FWC must start to deal with a bullying
application within 14 days.
Matters referred to the WHS regulator
Seeking an order from the FWC is likely to
be the first formal step a bullied worker
will take; however, the matter may not end
there. Under the new laws, as identified in
the Explanatory Memorandum (EM) for the
Bill that introduced the new measures into
the FW Act, the FWC “may refer the matter
to a WHS regulator where it considers this
necessary and appropriate”. The EM goes
on to clarify that “WHS regulators should
not perceive individual remedies [in bullying
matters] as a replacement for penalties
enforceable under WHS and criminal
legislation”.
As well as the referral of workplace bullying
by the FWC to WHS regulators, the worker,
colleagues or the union may also make
a complaint to the WHS regulators. This
could lead to an increase in the likelihood
that a worker’s bullying complaint, despite
If the FWC issues an order that bullying has
occurred, the WHS regulator could use this
as prima facie evidence of a failure to provide
the worker with a safe workplace in breach of
work health and safety legislation. This could
lead to a thorough and targeted investigation
by the regulator into the incident. If the
regulator determines that an organisation
has failed to take reasonably practicable
steps to prevent the bullying occurring, the
organisation, its officers and workers could be
prosecuted for the offence.
By way of example, an order requiring an
organisation to comply with its own internal
workplace bullying policies could be used
as evidence of an organisation’s failure to
properly enforce the policies. Likewise an
order requiring an organisation to review its
policies could be used by the WHS regulator
as evidence that the policies are inadequate to
ensure a safe workplace. Both could be used
by the regulator to demonstrate a breach by
the organisation of its WHS obligations.
Officer exposure
Officers in jurisdictions with harmonised
WHS legislation could be prosecuted over
bullying incidents where an investigation by
the regulator identifies the officer has failed
to exercise their due diligence obligations. An
example of a breach by an officer of their due
diligence obligations could arise from a failure
by the officer to ensure that the organisation:
• has available for use, and uses, appropriate
resources and processes to eliminate or
minimise the risks of bullying to health and
safety, or
“The new laws mean
that, for the first time,
organisations will be
subject to the powers of the
industrial relations umpire,
as well as work health
and safety regulators for
workplace bullying.”
enforced in the workplace. Human resources
and WHS personnel should work together to
ensure a coordinated approach to managing
workplace bullying complaints. Knowledge,
information and expertise should also be
shared to develop the best strategy for the
organisation.
Given the potential snowball effect of an
order issued by the FWC, organisations
should take all appropriate steps to avoid
the order being issued in the first place. This
means properly preparing and dedicating
the necessary resources to defend an FWC
workplace bullying application. Organisations
should endeavour to present evidence that
addresses the facts of the complaint and the
issue of whether there is an ongoing risk of
the bullying occurring. This could include
providing evidence of any investigatory and
disciplinary steps that have been taken.
• has, and implements, processes to enable
the organisation to comply with its WHS
obligations.
Precautions for employers
To minimise legal exposure arising out of
workplace bullying incidents, organisations
will need to take a “whole of business”
approach to managing workplace bullying.
Organisations should ensure that their
workplace bullying policies and procedures
are fit for purpose and communicated and
Does my insurance cover this? By Luke Holland and Dylan Steel
As penalties for work health and safety
(WHS) breaches have risen across the country,
company officers are increasingly asking
whether their insurance provides cover for
WHS offences.
The issue of insurance for WHS offences was
recently examined in Hillman v Ferro Con (SA)
Pty Ltd (in liquidation) and Anor [2013]
SAIRC 22.
In an unprecedented decision, a fine in
excess of $400,000 was handed down to a
South Australian company and its director for
breaches of the Occupational, Health, Safety
and Welfare Act 1986 (SA) (OHSW Act).
This case highlights the trend of increasing
penalties and the accountability of officers
for work health and safety breaches. It also
provides interesting commentary on the role
of insurance policies in the sentencing of
employers.
The incident
The defendants, Ferro Con (SA) Pty Ltd (in
liquidation) (Ferro Con) and its sole director,
Paolo Maione, were constructing part of the
Adelaide Desalination Water Plant. Brett Fritsch
and Craig Fowler were employed by Ferro Con
as riggers on the project.
The court heard evidence that, at the time of
the incident, a large crane was being used to
install a steel monorail beam to the rafters of a
partially built building. Mr Fritsch was required
to pull down heavily on a tag line to lower
the beam to a level position, which involved
standing under the beam and exerting force.
“...[the case has] sparked
an interesting debate in the
wider community about the
impact of insurance policies
on safety prosecution
penalties.”
The fabric or “soft sling” holding the beam
snapped and the beam dropped on Mr Fritsch,
tragically killing him. Mr Fowler was standing
on a nearby elevated work platform at the
time. His machine was struck by the falling
beam, which caused him to fall. He managed
to jump onto nearby scaffolding and escaped
without injury. The Court considered this a
“near miss”.
Following an investigation by SafeWork SA,
Ferro Con and Mr Maione, as the responsible
officer, were charged under s 19(1) and s 61 of
the OHSW Act respectively.
The decision
In the Industrial Relations Court, Mr Maione
and Ferro Con plead guilty to their respective
breaches of the OHSW Act. In sentencing
the Court made it clear that the basis of
Mr Maione’s prosecution was his role as a
responsible officer and not as the director
of Ferro Con. Mr Maione was found to have
failed to take positive steps to ensure that
adequate and appropriate systems were in
place and followed. His inaction induced Ferro
Con to commit a breach of the OHSW Act.
Penalties
During sentencing, the Court considered that
it had to penalise Ferro Con and Mr Maione to
provide general deterrence to other companies
and responsible officers, as well as specific
deterrence to Mr Maione who continued to
run a steel erection business.
A fine of $200,672 was imposed on both
Ferro Con and Mr Maione. This is the most
significant monetary penalty in the history
of South Australian safety prosecutions. Mr
Maione was also ordered to:
• pay an additional $20,000 in compensation
to the victim’s wife and family, and
• publish notices giving information about
the circumstances of the offence. The
notices were to be provided to employees,
displayed at Mr Maione’s business premises
and published in the weekend newspaper.
The insurance policy
Of particular interest to the Court was that
Ferro Con had an insurance policy, which
covered Mr Maione and the company for
any fines resulting from the prosecution.
Industrial Magistrate Lieschke stated that
this “undermined the Court’s sentencing
powers” and sent a message “to employers
and responsible officers…that with insurance
cover for criminal penalties for OHS offences,
there is little need to fear the consequences
of very serious offending, even if an offence
has fatal consequences.” Industrial Magistrate
Lieschke went so far as to suggest that
insurance policies for safety breaches should be
outlawed but that this was a consideration for
Parliament.
The defendants argued that they should
receive a reduction in penalty because they
had shown contrition and acceptance for
their criminal conduct. This was common
practice in South Australia. However, Industrial
Magistrate Lieschke felt that neither Ferro
Con nor Mr Maione could genuinely express
remorse without real acceptance of their
criminal responsibility, which they had avoided
by calling on an insurer to pay the impending
fine. This brought the value of their remorse
into question. As such, Industrial Magistrate
Lieschke refused a reduction in penalty.
Importantly, Industrial Magistrate Lieschke
noted that an insurance policy does not
aggravate the charge before the Court and
add to the penalty. However, the existence of
an insurance policy may prevent the employer
from being granted a reduction or discount in
penalty.
Final comments
This case has been the first of its kind in South
Australia and is likely to set a precedent for
future safety prosecutions. It has also sparked
an interesting debate in the wider community
about the impact of insurance policies on
safety prosecution penalties.
Recent developments
About the contributors
Seminars and training
Recent legal developments
Ian Bennett, Lawyer
Millennials and baby boomers: different
generations, different WHS risks
NSW Parliament introduces important
amendments to the WHS Act
Ian is a Sydney-based lawyer who advises clients, across various industries and fields, in both
employment and work health and safety law.
Join us for our national seminar series in
November and December. Find out what work
health and safety obligations you have to
older and younger workers in your workplace,
practical work health and safety steps for
dealing with these workers and how to avoid
claims of discrimination.
On 16 October 2013, the NSW Government
introduced the Work Health and Safety
Amendment Bill 2013. If made into law,
the Act will overcome two significant issues
that have held up more than 160 existing
prosecutions under the Occupational Health
and Safety Act 2000 (NSW).
These free sessions will be held in Adelaide,
Brisbane, Melbourne, Newcastle, Perth and
Sydney. Registration is essential, so email
[email protected] to find out
more information and to book your spot.
If the Bill is enacted, defendants will need to
be ready to indicate how they intend to plead.
It is also likely that more prosecutions will be
commenced once the Bill is passed. Click here
to find out more.
Roland Hassall, Partner
Conducting investigations
Record 40% reduction for SA employer
following OHS breach
Luke Holland, Partner
Clients have been asking for help to conduct
their own investigations. One factor driving
these enquiries is an increase in bullying and
harassment complaints.
We have developed a training course that
focuses on the skills you need when deciding
when to investigate, planning the investigation,
conducting the investigation and preparing the
investigation report. The training usually takes
half a day and is tailored to each organisation.
The interactive session includes mock
interviews based on factual scenarios. It covers
the organisation’s policies and attendees can
participate in practical exercises. Investigations
will become more important as bullying and
harassment complaints are likely to increase
once the changes to the Fair Work Act
allowing applications to stop bullying begin on
1 January 2014.
If you’d like to know more about this training,
please contact Roland Hassall, Partner, on
+61 2 9260 2449 or email him
[email protected]
In September 2013, we acted in a matter
where our client received the maximum 40%
reduction in penalty after being prosecuted by
SafeWork SA for OHS breaches.
This was the first time that the maximum
discount had been applied to an OHS offence
following the recent changes to the State’s
sentencing provisions. The case demonstrates
the benefit an early guilty plea can have in
significantly reducing the penalty employers
may face following OHS prosecutions. Click
here to find out more.
David Davies, Partner
David is a senior employment law partner with exceptional litigation and advocacy skills. He
has represented clients in the public and private sectors in hundreds of unfair dismissal, sexual
harassment, discrimination and adverse action cases. David is based in Sydney.
Roland is a senior employment law partner based in Sydney who assists managers and
executives to address employment issues across a wide risk spectrum. He has a practical
approach to issues that complement employment law matters, including bullying and
harassment, out of work behaviour, social media, WHS issues and workers’ compensation.
Luke is one of South Australia’s leading experts in the areas of work health and safety and
employment law. He provides pragmatic advice on how to best manage workplace issues and
deal with regulators and is known for his practical and balanced approach.
Dianne Hollyoak, Special Counsel
Dianne is an experienced industrial relations and employment lawyer with particular skills in
negotiating and developing enterprise agreements with unions as well as resolving a range of
disputes. She is based in our Brisbane office.
Phil Lee, Lawyer
Phil assists senior lawyers to resolve a broad range of employment law issues, particularly in
the area of managing injured workers. He is based in our Sydney office.
New Industrial Court for the ACT
On 29 October 2013, the ACT Legislative
Assembly passed the Magistrates Court
(Industrial Proceedings) Amendment Act 2013,
creating the ACT Industrial Court.
The new Court will have a wide jurisdiction to
deal with industrial and work safety matters.
Importantly, the new Industrial Court will have
jurisdiction to hear arbitration applications
arising under the Workers Compensation Act
1951, associated common law claims under
the $250,000 jurisdictional limit that are
currently heard by the Magistrates Court and
industrial prosecutions. Click here to find out
more.
Dominique Mayo, Lawyer
Dominique is part of our team in Brisbane and assists senior lawyers with employment and
safety matters. Before joining us, Dominique spent three years as a Judge’s Associate at state
and federal level and she is well-versed in tribunal and court processes.
Dylan Steel, Senior Associate
Dylan has acted in general, product and public liability and professional indemnity matters for
more than 10 years. He appears in state, federal and appellate courts and also practised in the
UK. Dylan is experienced in alternative dispute resolution practices and is based in Adelaide.
Alistair Talbert, Special Counsel
Alistair is experienced in employment, industrial relations, occupational health and safety and
discrimination law. He helps CEOs, executives and legal counsel in the mining, logistics, retail,
manufacturing and government sectors. Alistair is based in our Perth office.
Want to know more?
Call Matthew Smith, Workplace National Practice Group Leader, Sparke Helmore Lawyers
on +61 7 3016 5027, +61 404 056 879 or [email protected]
Call Paul Cutrone, Safety National Service Line Leader, Sparke Helmore Lawyers
Call David Davies, Employment National Service Line Leader, Sparke Helmore Lawyers
Key contacts
Adelaide: Luke Holland, Partner | t: +61 8 8415 9875 | e: [email protected]
Brisbane: Matthew Smith, Partner | t: +61 7 3016 5027 | e: [email protected]
Melbourne: Brendan Charles, Special Counsel | t: +61 3 9291 2352 | e: [email protected]
Newcastle: Catherine Wilkinson, Partner | t: +61 2 4924 7212 | e: [email protected]
Perth: Alistair Talbert, Special Counsel | t: +61 8 9288 8040 | e: [email protected]
Sydney: Paul Cutrone, Partner | t: +61 2 9373 1434 | e: [email protected]
Sydney: David Davies, Partner | t: +61 2 9373 1431 | e: [email protected]
Sydney: Roland Hassall, Partner | t: +61 2 9260 2449 | e: [email protected]
Sydney: Carlie Holt, Partner | t: +61 2 9373 1412 | e: [email protected]
Sydney: Bill Kritharas, Partner | t: +61 2 9373 1423 | e: [email protected]
Sydney: Janice Nand, Consultant | t: +61 2 9373 3517 | e: [email protected]
www.sparke.com.au
adelaide | brisbane | canberra | melbourne | newcastle | perth | sydney | upper hunter

Workplace Matters - Sparke Helmore Lawyers

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