Our project was finished. With grins on our faces, my colleague and I walked towards each other, hands sailing through the air in synchronised arcs. Onlookers shouted, “No, don’t! It’s not COVID-safe….” Our grins faded, but it was too late. We high fived. Cringed. And hand sanitised.

There’s going to be an awkward adjustment period while we all figure out how to interact with people at work again. Unfortunately, the timing overlaps with both the predicted ‘summer of love’ and the new Roadmap for Respect changes to Australian sexual harassment and discrimination laws, which commenced operation on 1 September 2021.

The Roadmap for Respect didn’t account for the fact that people who have been in extended lockdowns may be out of practice at reading the room or have different thresholds for what is acceptable, normal, welcome, offensive, humiliating or intimidating conduct. It’s easy to see how water-cooler conversation may run dry. Pauses could be filled with overly personal stories or awkward banter. Physical proximity could be much more confronting now than it has been in the past.

This creates a ‘perfect storm’ of risk, noting that:

  • There is now a broader range of conduct that will amount to unlawful ‘sexual harassment’ under the Sex Discrimination Act 1984 as well as a new type of unlawful conduct (‘harassment on the grounds of sex’).
  • A larger population of people are now covered by these laws. Claimants also have a longer period of time in which to bring claims to the Australian Human Rights Commission.
  • All “persons conducting businesses or undertakings” (or PCBUs) are covered and can also be liable as an accessory if they cause, instruct, induce, aid or permit sexual harassment and sex-based harassment.
  • The Fair Work Commission can also now hear applications for orders to ‘stop sexual harassment’ (which is similar to the existing ‘stop bullying’ framework).

To navigate these risks, leaders may need to recalibrate. Key points to check off the list are:

  • Policies and procedures should be dusted off to ensure that the standards are clear and companies have the tools needed to respond to any claims of inappropriate conduct. Consider reminders and training, particularly as we head into the festive season.
  • If office attendance is down, how do you ensure leaders oversee interactions, spot any red flags and respond swiftly to prevent sexual harassment and discrimination, if needed?
  • Invest in support for anyone who is struggling, including drawing on some of the great tools we have all been using while working from home.
  • Have genuinely open dialogues (and sometimes hard conversations) about the line between acceptable and unacceptable behaviour, focusing on the practicalities of interpersonal interactions and the nuanced ways workplace sexual harassment and discrimination can arise depending on the dynamics and power imbalances between those involved.
  • Ensure people know they can and should ask questions or raise issues – and that the employer values and supports input on how it can continue to create a productive, respectful and inclusive workplace where people can thrive.

All the modelling done and released by our governments to support the roadmaps out of lockdowns tell us the same thing: as our businesses and borders reopen, the COVID numbers will increase. We will need to learn to live with the virus. Given this, it is likely that a lot more workers will get COVID and transmit it to others.

The key question for every business leader to consider is how will you plan now to be ready for this next phase?

Many or all of the COVIDSafe measures that businesses have now respond to a pandemic with low community transmission. Reopening with higher community transmission rates presents a different risk profile for businesses. Vaccination has formed a key part of the public debate about how to keep workers safe. But it is not the only issue here that employers will need to navigate (particularly in those states, including Victoria, where industrial manslaughter is a criminal offence).

Some of the other bigger picture issues that Boards and business leaders should be thinking about now include:

  • Ensuring sufficient resourcing and processes are put in place to support the challenge of remaining up to date with changing and varied government requirements, public health advice and best practice guidance as things change quickly. Already stretched HR and Operations teams are likely to need additional support, to assist with changes and deal with employees who object or fail to comply, particularly given the myriad of other people challenges that have been triggered by the pandemic.
  • Planning for a localised outbreak as for any other business interruption as part of the risk register. This includes contingency planning if a large number of employees are forced into self-isolation (as we have seen recently among large employers and in some country towns).
  • Taking a rigorous and broad risk assessment and mitigation approach to protecting the health and safety of employees and contractors that includes environmental factors that could contribute to outbreaks with unknown sources. For example, several outbreaks have been linked to ventilation system issues in hotel quarantine, which has also been highlighted as an issue by the ACTU. How many employers have included building design and ventilation as potential infection sources in the planning to date or considered what (if anything) can be done?
  • Identifying commercial tensions and how they will be managed. What happens if a key client of a business says ‘we’re not happy to have our confidential information at employees’ homes’? Will the business’s response be to require on-site work (where permitted by law) or is that a relationship issue to be addressed with that client?
  • Mental health will need to be a continued area of focus as we know that all the predicted changes (higher case numbers, more hospitalisations, changing government requirements which are likely to result in uncertainty about work arrangements) can all contribute to mental health concerns.
  • Anecdotally, many companies have experienced spikes in employee grievances during the pandemic. Employees who raise concerns about COVIDSafe arrangements at work could be making legally protected whistleblowing disclosures, even if that is not how the complaint is described by the employee. Managers and senior business leaders who might receive these complaints should ensure that they know how to spot them, how to deal with them and what their (personal) obligations are as the recipient of a legally protected whistleblowing disclosure.

Employers who work through the above issues will be best placed to support their people, take advantage of opportunities to implement new systems and processes now (before community transmission increases further) and protect their business and the safety of their people and clients. We know that those that get this right will position themselves well for the future.

We recently had the pleasure of hearing from Futurist Ross Dawson in an exclusive conversation about the powerful drivers that are reshaping work at a dramatic pace in the coming years.

Join us for the second of a two-part series on the future of the world of work. During this discussion-based session, our US and International Employment team will address the high-level legal issues and implications of the key themes that Ross discussed in Part 1, including technology, society, structure, work, location, performance, and leadership.

The discussion will address critical questions employers should consider when it comes to employment in the future, including:

• What does the move to distributed work models and the gig economy mean for employment protections and representation across the globe?
• How do talent acquisition and performance management models keep up with “any time, any place” working?
• Where the law does not reflect the new reality, how do employers balance compliance with keeping their competitive edge, and how do employers take advantage of the new possibilities that Ross outlined?

The speakers are:

Dave Baffa, Partner, Labor and Employment
Rachel Bernasconi, Partner, International Employment Law
Ana Cid, Partner, International Employment Law
Chelsea Mesa, Partner, Labor and Employment

If you missed out on Part 1 of this series, you can view the recording here or read our recap here.

Register here for the webinar.

The future of work is in the process of being created. The leaders who seize the immense opportunity to attract and leverage the best talent in a swiftly changing world will excel. Interestingly, our own data shows that more people are hopeful about the future of work than they were five years ago.

You are invited to join Seyfarth co-hosts, David Baffa and Jesse Pauker, for a conversation with Ross Dawson, futurist and one of the world’s leading thinkers on the future of work. This keynote will explore the powerful drivers reshaping work at a dramatic pace in coming years, including:

  • Technology such as pervasive data capture, AI, and 3D videoconferencing that will shift the role of humans in work
  • Rising expectations from employees, investors, and customers that will shape business practices
  • The shift to platform business models which is reshaping the nature of value creation

As a result of the pandemic, companies will have to make fundamental strategic decisions among a diverse array of location-focused or hybrid work configurations, and optimise work practices for the reality of distributed workforces.

As organisations redesign work to focus on the unique human capabilities that complement AI, the war for talent will intensify and job roles will become more fluid. These shifts will accentuate uncertainty and risk in workforce management, but also offer the potential to build exceptionally effective organisations.

If the timing doesn’t work for the first live webinar, you can get a recording to watch in your own time by registering.

Register Here for the webinar and to secure your recording.

Stay tuned for information for part two of the Future of the World of Work, for insights on the legal implications and issues that organisations should consider as workplaces evolve.

 

 


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The first time a global client asked me for a template employment diversity form, I didn’t know what they were after.

They wanted to track their workforce’s diversity attributes (asking every person about race, gender identity, sexual orientation, disabilities, etc.) so that they could track performance on their broader diversity targets. This is typical practice in the US, where both discrimination and data privacy considerations are different.

When I flagged there were restrictions in Australia, they patiently explained to me “this is for diversity” and were incredulous when I had to give them the bad news that it still might be unlawful here.

In Australia, it is generally not sufficient for an employer to simply seek to achieve workforce diversity. Discrimination is prohibited at Commonwealth and state level. Under many of these laws, positive discrimination is only lawful if an employer can demonstrate that there is currently substantive inequality which will be remedied by the proposed measure.

Further, some laws (such as the NSW Anti-Discrimination Act 1977) require a formal exemption from a Tribunal, with limited or no capacity for unilateral positive discrimination. There are around 750,000 Australian business with NSW as their main state, but fewer than 150 organisations have current exemptions permitting positive discrimination. If information will be used for discrimination, it can be a separate breach of some state laws to collect it, raising the prospect that even asking for diversity details can result in risk for an employer.

This is a concern given that many diversity goals seem like aspirational rather than reachable targets. For example, 2017 research showed that there were fewer Australian companies run by women than by men named Peter or John. By 2020, there had been some improvement for gender diversity, but only around 5% of board directors in the ASX300 came from non-Anglo-Celtic backgrounds.

Australia is not alone in these issues. In Europe, positive action is only allowed within narrow limits. In the UK, the Equality Act 2010 allows positive action where there is demonstrated under-representation or disadvantage for a protected group and, specifically, the individual concerned. The employer also has to show that the positive action is proportionate – another hurdle to get over. For hiring and promotion, the exemption is even narrower – essentially allowing under-representation to be a “tiebreaker” only where candidates are equally qualified.

Ultimately, positive action which goes beyond target-setting and into practical steps is a risk for employers. For example, a UK police force recently lost a case for selecting a minority candidate over a white candidate to improve its diversity, on the basis the candidates were “not equally qualified”.

There are complex reasons for lack of diverse representation in many companies, and we do not suggest the discrimination laws are a cause. However, they result in complexity, risk and difficulty instead of making it simple or easy for businesses to implement diversity initiatives.

Many global companies are increasingly looking at diversity as a commercial issue, and seeking to partner with business that meet various diversity targets. Some employers are willing to take these risks, for example by insisting on all women shortlists for board roles, in order to speed up the pace of change. In countries where discrimination laws create complex hurdles to navigate, we might miss the opportunity to get on board.

Is it time to diversify our discrimination laws so that we can all do better?

 


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The original idea

A worker stands at the gates of the docks hoping for work. The boss approaches the fence separating dozens of huge containers from those milling outside wanting to unload them.

“30 workers!” is the call.

The first 30 file inside, heads counted as they pass; a day’s work in front of them. There are no guarantees for tomorrow, just as there were none yesterday, but at least today is taken care of.

In 2021, the concept of casual employment is starkly different to the purist idea that started out – that of ad hoc work, no promises or expectation that it would continue, with a modest premium on the hourly rate. It is now not unusual to hear stories about casual employees engaged consistently over many years by the same employer and later claiming permanent employee entitlements. It is telling that, in the mid-1980’s, legislation was amended in a number of States and Territories to give casuals long service leave entitlements.

 

Problems emerge concerning increased use of casual employment

In its 2015 report on Australia’s workplace relations framework, the Productivity Commission found that the rate of casual employment nearly doubled between 1980 and 2000. In some industries the use of casual employment is endemic.

What accounts for this significant increase over time? The reasons are various, with some employers using these arrangements to try and maintain some flexibility and variable cost within their labour model. In many cases, workers simply prefer casual employment and the premium that comes with it. There are many situations in between.

Over time some limited employment protections for long-term casual workers have been put in place, such as protection from unfair dismissal for casuals with systematic employment and a reasonable expectation the employment would continue.

Until now, the term “casual employee” was not defined in the legislation for general purposes and took its meaning from the common law. This called for an assessment of the substance and totality of the employment relationship. There were a number of problems with this lack of definition and the law concerning casuals more generally.

First, at common law, the concept of a casual employee was vague and complex, evolving as it did with each decision considered the best and latest precedent. Second, the common law failed to assist in the identification of when an employee’s legal status which started as casual later became permanent – a major problem given a lot hangs off the difference. Third, when an employee, at some indeterminate point in time became permanent, logic dictated that he or she would be entitled to additional conditions (such as annual leave, sick leave and redundancy pay) under the NES or another source such as an enterprise agreement. However, along the way the casual employee had been paid a casual loading of 25% intended to cover these same entitlements. The principle that an employee should not receive the same entitlement twice (the so-described “double dip”) clashed in these cases with a complicated body of case law concerning the law of offsetting payments. These issues gained public attention recently with cases such as Workpac Pty Ltd v Skene [2018] FCAFC 131 and WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

 

Three major changes to casual employment rights

The passage into law this week of the Government reforms is the next step in a regulatory evolution of casual employment rights. The Fair Work Act (“the Act”) makes three major changes by introducing:

  • a statutory definition of “casual employee” into the Act which gives primacy to the parties description of the relationship when the employment commenced;
  • a limited entitlement to convert from casual employment status to permanent employment under the National Employment Standards (“NES”); and
  • a statutory power obliging a court to offset any casual loading paid against any shortfall amount being claimed by an employee where it is later determined that the employee should have been treated as permanent.

 

Casual employee defined

The Act defines a casual employee as an employee who accepts an offer of employment in circumstances where the employer made “no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”. Codifying factors developed by the common law, the Act provides an exhaustive set of considerations which must be taken into account in determining whether the offer meets the definition of casual employment, which changes the position where Courts would consider an unconfined universe of potentially relevant factors and it was never certain which would win the day.

Now, a regular pattern of hours will not determine the issue, and the question of whether a person is a casual employee is assessed based on the offer and subsequent acceptance, not by the subsequent conduct of the parties. By putting heavy emphasis on the terms and parties’ own characterisation of the employment relationship at the start, the Act will have the effect that employment offered on a casual basis will later be considered casual even if subsequent conduct is characteristic of permanent employment. Subsequent conduct is irrelevant which means a person’s employment status cannot unintentionally change over time.

Importantly, the new definition has retrospective effect – it applies to offers of employment given before the amendment became law, unless there is a pre-existing determination by a Court that an employee was not a casual, or an employee exercised a “casual conversion” right under an award or agreement before the amendments take effect.

 

Casual conversion to permanent employment

The Act gives various rights to casuals including that an employer (other than a small business employer with fewer than 15 employees) must offer a casual employee conversion to permanent status if the employee has been employed for a period of 12 months, and during at least the previous 6 months, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, could continue to work as a full-time or part-time employee. An employer need not make an offer if there are reasonable grounds to decline, such as:

  • where the employee’s position will cease to exist within 12 months; or
  • there will be a significant change in the days on which, or times at which, the employee’s hours of work are to be performed which cannot be accommodated by the employee’s availability.

Should a dispute arise it will be governed by any procedure for settling disputes that applies to the employee contained in the employee’s contract, a fair work instrument (including importantly an enterprise agreement) or a separate written agreement. If none of these apply a default procedure is set out in the legislation which provides for conciliation and/or consent arbitration. There is a sleeper issue here where, for example, an enterprise agreement made before these amendments provides for arbitration as the final dispute settlement step. It appears that procedure, including arbitration, will apply to a dispute about casual conversion rights and the “reasonable refusal” issue – disputes clauses invariably apply to disputes arising under the NES, which will contain the new conversion mechanism. There is also a small claims procedure set up giving access to a Court.

We can expect to see many “unreasonable refusal to convert” cases in the future, particularly in circumstances where an employer uses large pools of casuals consistently and over regular work patterns. The employer requirement to provide new casuals with a Casual Employment Information Statement setting out their rights will see that casuals are fully informed about their options.

 

Offset of casual loading

Following the uncertainty created by the Skene and Rossato decisions mentioned above, the Attorney’s General Department estimated that employers could be liable to pay approximately $18 billion to $39 billion (over a six-year period) to employees who, while initially engaged as a casual, may have become permanent over time and subsequently entitled to be paid entitlements such as annual leave.

The Act seeks to address this liability in two ways. The first is the retrospective application of the “casual employee” definition in most cases. The second is that where this does not apply, where a claim is made by a person who has been employed and paid on the understanding that he or she is a casual employee, but is later found to be a permanent employee entitled to additional entitlements, the court must reduce (or “set off”) any amount payable by the employer by an amount equal to the casual loading already paid.

This change also has retrospective effect, applying to entitlements accrued before commencement of the amendment. Employers can rely upon this legislation to defend existing claims where the new definition of casual employment does not apply retrospectively.

 

Other changes

The Act also contains several other provisions which have been less heralded than the marquee amendments, but are worth noting. Principally:

  • The Act amends NES provisions that refer to casual employment. Most significantly, it amends provisions relating to notice of termination and severance entitlements to clarify that service as a casual prior to converting to permanent employment does not count towards an employee’s length of service. This resolves an issue which has been of concern to employers since the Full Bench of the Fair Work Commission held that prior casual service should be factored into redundancy entitlements in AMWU v Donau Pty Ltd [2016] FWCFB 3075.
  • The Act’s transitional provisions require that within 6 months, the Fair Work Commission review modern awards’ provisions defining, regulating the engagement of, and allowing for the “conversion” of, casual employment. This is to ensure harmony with the new legislative provisions. Given the short timeframe, and that the ACTU and peak employer associations all supported the recent abolition of four-yearly award reviews, this may not be a welcome development for a Tribunal already dealing with a heavy workload.

 

Where to from here?

Of interest to many employers will be the new right to convert from casual to permanent employment. At a strategy level, this directs attention to whether casual employment is being used in a manner that creates exposure to conversion to permanent employment. Long term, this exposure will motivate greater employer discipline in proactively deciding upon the right labour mix (permanent, fixed term, casual, contractors, etc.). There will be less tolerance for bringing on large numbers of casual employees that are used as a flexible labour pool if a change in status can be brought about by a relatively inexpensive Tribunal application rather than a complex and expensive court case seeking unpaid permanent employee entitlements.

In the shorter term, there will be a need to manage the issue of casuals that are already on the books, and the potential for conversion disputes, particularly where resolution will be by compulsory arbitration.

The changes concerning offsetting are sensible. They are largely common sense – something the legal system does not always demonstrate. The Government’s efforts to fix this particular problem will be welcomed by many businesses.

 

 


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During the Australian summer, media reports have documented a tragic spike in drownings at unpatrolled Australian beaches, as people search for remote swimming spots they might not normally use during the ongoing COVID-19 pandemic. Millions of swimming lessons – a rite of passage to a core element of Australian life — have also been missed during the pandemic and associated lockdowns.

These statistics call up a related question about the ongoing effects of the COVID-19 pandemic on the perception and tolerance of other critical safety risks in Australian businesses, workplaces and workforces. Critical safety risks are those that can kill or seriously injure people.

In 2020, faced with a once in a 100 year pandemic, the lion’s share of attention (from regulators, governments, businesses, and the public at large) was unsurprisingly focused on the newly emerging (and continuing) risks associated with COVID-19 infection and transmission. Huge resources were diverted to controlling that risk, and devising and responding to entire new legal and regulatory schemes and ways of working and living which quickly evolved under Australia’s OHS/WHS laws and public health legislation to guard against that emerging threat.

But the emergence of a new critical safety risk (COVID-19) does not diminish the continuation or potential accentuation of critical safety risks in Australian workplaces that pre-date the onset of the pandemic. Resource implications and psychological impacts on workforces who had to adapt to new ways of working in the context of life during a global pandemic, may have created new and different health and safety risks which need to be identified, and managed in accordance with risk management principles under Australian OHS/WHS law.

Employers that have been managing the work health and safety risks posed by COVID-19 alongside their other health and safety risks have done so by considering the following questions:

  • Is there a potential for us to take our eyes off the ball in terms of identifying and managing critical health and safety risks because we are focused primarily on COVID-19 risks?
  • What, if any, new and different health and safety risks are we introducing by trying to manage health and safety risks associated with COVID-19?
  • What are the impacts on risk perception, risk tolerance and engaging in high risk behaviour for workforces who have now been working under an increased strain of a global pandemic for almost 12 months?
  • What are the potential impacts of winding back some of the COVID-19 control measures as workers head back to workplaces?
  • Does the change in these control measures impact or require amendment to existing health and safety controls or only those directed to COVID-19?

No doubt these questions are under current consideration by academics, safety professionals and regulators globally.

Work health and safety law – balancing competing risks and applying the risk management process to all critical safety risks

At its core, the risk management process is the practical way to facilitate compliance with safety duties imposed by OHS and WHS law.

A summary of these concepts is outlined in Part 3.1 of the harmonised WHS Regulations and the approved Codes of Practice on How to Manage WHS Risks, which is modelled on the version published by SafeWork Australia.

The risk assessment process should not only identify critical safety risks (i.e. what could kill people), but other health and safety hazards, assess the risks, identify existing control measures and if any additional control measures should be introduced. Importantly, internal processes should include triggers for review of the hazards, risks arising from those hazards and the control measures to manage those risks. Those processes should align with workplace health and safety laws which require duty-holders to review, and if necessary revise, their control measures in certain circumstances.

COVID-19 no doubt falls into the category of a ‘critical safety risk’ and warrants continued focus. However, control measures that are introduced in response should not be at the expense of other critical safety risks in work processes or workplaces, nor should they introduce new, greater health and safety risks.

 

 


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Over five years ago, in 2015 we wrote a thought piece about the “gig economy” and where it might be headed. Given the gig economy was then only emerging as a part of the broader economy, the impacts, positive and negative, were not yet known. However, we observed that there was potential for workers and employers to successfully leverage technology as a complement or substitute for traditional ways of working.

In 2017, our colleague Ben Dudley, wrote about the continual rise and development of the gig economy. He observed that employment and industrial laws were slow to catch up with these developments but sophisticated businesses would be looking at their structures and operations to stay ahead of the movement.

Now, we come to the start of 2021.

The global pandemic has put a spotlight on gig work in a real and tangible way. On the one hand, platforms have helped us manage during lockdowns, supporting businesses to pivot to online delivery, providing work and allowing those in self isolation to access necessities. At the same time, tragically, a number of food delivery workers lost their lives on the roads, prompting the New South Wales Government to set up a taskforce to investigate the deaths and assess how to improve the safety of such workers.

The fact that contractors generally do not receive paid sick or carer’s leave was also highlighted in the pandemic response. It was reported that a number of ride-share and food delivery platforms moved to cover their partners’ lost income when required to self-isolate – to the benefit of both the individuals and their communities fighting a highly contagious virus. However, those platforms would understandably have been concerned about providing benefits associated with “employment” to those workers and potentially increasing their risk of misclassification claims.

In short, gig work and platforms are continuing to gain traction as a part of the economy, but governments have only recently recognised that the law must evolve to keep pace with them.

In the Report of the Inquiry into Victorian On Demand Work issued in June 2020, Chairperson Natalie James found a “compelling case for change” in relation to the regulation of gig work. The Inquiry’s recommendations included:

  • codifying work status in the Fair Work Act (rather than relying on “indistinct” common law tests),
  • allowing gig economy workers to bargain collectively with platforms, and
  • providing streamlined advice around work status.

The Victorian Government closed public consultations about the Inquiry’s recommendations in October 2020. It is now considering feedback on the Report.

Where to from here?

The correct classification of gig work is critical for both employers and workers because it determines the application of a broad range of entitlements and benefits. However, that issue is inherently uncertain in “borderline cases” where there are factors pointing in opposing directions.

The Fair Work Act currently applies in the main to employees, but leaves the definition of employee versus independent contractor to the common law. This requires employers to weigh up a series of factors, none of which are conclusive. In one case[1], the application of this multi-factor test resulted in a young backpacker engaged by a labour hire company to work on construction sites in Perth being found to be an independent contractor – an outcome which was queried but not overturned on appeal. One judge who sat on the appeal observed:

“It may be thought that the prevalence of trilateral relationships, the evolution of digital platforms and the increasing diversity in worker relationships has evolved in a way that the traditional dichotomy may not necessarily comprehend or easily accommodate“.

The “traditional dichotomy” between employee and independent contractor in the common law was once described by the High Court of Australia as “too deeply rooted to be pulled out”. However, with the growth of the gig economy and other innovative approaches to work it is now likely that the law will change to (at the very least) allow the provision of employment-like benefits to gig workers. There is a push to take the more radical step of defining “employment” in legislation to expand those rights and protections to gig workers. This would represent a marked shift in the law as we know it. Arguably, it could undermine the value of gig work – to provide workers with greater flexibility than traditional employment (for instance the right to set their own schedule and to accept or reject work). It would be preferable for a national approach to be taken rather than a state by state, piecemeal approach if this can be achieved. Whatever comes next, the gig economy will certainly be one of the most interesting legal and policy challenges for employment and industrial relations in 2021 and beyond.

[1] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806; and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122 (appeal judgment).

 


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Some time ago, we queried whether punitive enforcement action against duty holders was the best approach for improving health and safety outcomes for Australian workers.

Since then, Australian Parliaments have been busy creating yet more offences for the statute books, that carry even more serious penalties. Industrial manslaughter is just one example. Cynics might interpret this as an attempt by Australian Governments to “be seen to be doing something” in respect of high work-related traumatic injury fatalities data.

Perceived (and actual) failures in numerous regulatory settings have been laid bare over recent years. The Financial Services Royal Commission and the ongoing Royal Commission into Aged Care Quality and Safety are just two examples of this. Those lessons have arguably informed current practices of Australian workplace safety Regulators.

As it is with the majority of the criminal law, discretion also underpins Australia’s patchwork of workplace health and safety laws. Just because something can legally be done, does not mean it should be done from a public policy perspective. As the old adage goes, ‘bad facts make bad law’.

Responsive regulation underpins most regulatory programs in Australia. It is an approach where a Regulator escalates or deescalates its response to duty-holders or issues on a sliding scale from ‘persuasive’ efforts to explain or encourage compliance, to a ‘mid-range’ of issuing notices, through to applying the ‘full force of the law’ – including commencing criminal prosecutions or revoking licences and permits. Responsive regulation is synonymous with the Enforcement Pyramids that form the basis of most Australian Regulators’ regulatory and enforcement policies.

As Professor Jeroen van der Heijden from the Victoria University of Wellington recently observed “[r]esponsive regulation asks regulators what it means to be responsive at different levels of the regulatory system, and how to be responsive”.

Those questions are devilishly tricky to answer. As Professor van der Heijden alludes to, those questions require Inspectors to be given adequate training and guidance to facilitate them exercising their discretion in an appropriate and consistent way. They also require Regulators to explain clearly to their stakeholders what “responsiveness” means under their regulatory and enforcement or prosecution policies.

The field of responsive regulation theory and practice is too vast to cover in this short blog.

No one denies the importance of enforcement action in the Courts for seriously deficient conduct that exposes persons to risk to their health and safety, as part of a broader regulatory response toolkit. The general and specific deterrent principles of the criminal law do have a proper application in a WHS context.

However, surely there is much to be gained through an informed discussion about:

  • how much “value add” specific categories of regulatory conduct contributes to improved health and safety outcomes in Australian workplaces, or furthers the statutory functions and roles of Regulators under WHS legislation; and
  • what different regulatory programs or approaches (aside from prosecutions) might be developed with limited tax-payer funds that better improve the health and safety of Australians at work.

The starting point may be asking the questions:

  1. what does “responsive regulation” in the safety space look like in 2020 and beyond; and
  2. how is that to be achieved?

A more pointed observation may be whether the current political climate in Australian jurisdictions sufficiently enables safety Regulators to ‘engage with risk’ and discuss these important questions in a meaningful way with their stakeholders.

 


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Seyfarth is excited to announce that Penny Stevens has joined the firm as a partner in Melbourne. Penny is a leading health and safety lawyer with more than 25 years’ experience advising on all aspects of work health and safety and criminal law.

Penny is known nationally for her expertise in both proactive risk mitigation as well as responding when an incident has occurred. Clients turn to Penny when it matters for representation and advice on prosecutions, coronial inquests and investigations.

“Penny is acknowledged as a market leading workplace health and safety lawyer who further enhances our reputation for high stakes litigation and advisory work for leading employers”, said Australia Managing Partner and co-chair of the International practice, Darren Perry.

“Penny’s extraordinary capability is well known to many of us at Seyfarth and to our clients. Her knowledge and experience in workplace health and safety is a fantastic addition to the firm as we continue to focus on responding to the complex workplace law needs of our Australian and international clients.”

Joining Penny at Seyfarth is Gina Carosi as a Senior Associate. Both Penny and Gina will work closely with the dedicated workplace health and safety team that includes partners Paul Cutrone and Sarah Goodhew, who was promoted to partner earlier this year.

 


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