03 Dec HR LAW NEWSLETTER – NOVEMBER 2024

Welcome to the November 2024 HR Law Newsletter.  This month, we delve into some recent legislative and case law updates that have significant implications for employers.  First, we discuss some of Queensland’s changes to its workplace health and safety laws. Next, we analyse the proposed Commonwealth legislation to set gender equality targets for large employers, signalling a push for greater accountability in promoting workplace diversity and equality. Finally, we review two recent decisions: one addressing workplace bullying and another reinforcing the implications of work-from-home arrangements.

HR LAW ANNOUNCEMENTS

December Webinar – Managing Workplace Obligations during the Holiday Season

Getting ready for the festive season? Join us for our upcoming complimentary webinar, where we will guide you through some of the key considerations for managing workplace obligations during the holiday season.

The webinar will cover:

• Managing workplace Christmas parties and understanding potential risks;
• Planning and implementing shutdown periods; and
• Employee entitlements and obligations when working on public holidays.

Please join us via Zoom. The details are as follows:
Date: Wednesday, 4 December 2024
Time: 10:00 AM
Presented by: Olivia Sinnamon, Solicitor

Click on the link here to register.

QUEENSLAND LEGISLATION – HEALTH AND SAFETY PERMIT HOLDER RIGHTS REDUCED

In Queensland, the Crisafulli Government has reintroduced the requirement for workplace health and safety permit holders to provide a minimum of 24 hours’ notice prior to entering a worksite to investigate suspected safety breaches. These amendments now remove the automatic right of entry for permit holders to enter workplaces (except where there is an imminent or immediate health and safety risks).

These changes amend the Work Health Safety Act 2011 (Qld) through the introduction of the Brisbane Olympic and Paralympic Games and Other Legislation Amendment Bill 2024 (“Bill”). Additional amendments through this Bill include the simplification of cease-work directions and limitations on work health and safety representatives to record images and videos at worksites.

These right of entry changes have been introduced to counter what Industrial Relations Minister Jarrod Bleijie has described as the CFMEU’s “weaponisation of workplace health and safety.” Furthermore, these amendments realign Queensland’s right of entry requirements with the Fair Work Act 2009 (Cth), which impose a 24 hour notice period before right of entry is permitted.

To read the Media Release, click on the link here.

QUEENSLAND LEGISLATION – MORE ONEROUS OBLIGATIONS IN RELATION TO SEXUAL HARASSMENT

In Queensland, the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (“SH Regulation”) has amended the Work Health and Safety Regulation 2011 (Qld) (“the Regulation”) to address and manage the risk of sexual or sex/gender-based harassment in the workplace. The SH Regulation compliments the existing provisions in the Regulations regarding psychosocial risk, while recognising that the risk of sexual harassment and sex or gender-based harassment requires a specific regulatory response.

The SH Regulation requires Persons Conducting a Business or Undertaking (“PCBUs”) to be active in the prevention of sexual or sex/gender-based harassment in the workplace rather than relying on individual employees reporting the harassment once the harm has occurred.  The specific amendments are detailed below.

Amendment of s 55C

The SH Regulation has amended section 55C of the Regulations, inserting the following provision:

• “(2)Without limiting subsection (1), the person conducting the business or undertaking must manage the risk to the health or safety of a worker, or other person, from either of the following at work—
  • (a)sexual harassment;
  • (b)sex or gender-based harassment.”

What this means

From 1 September 2024, PCBUs must proactively eliminate or minimise these risks to promote the health and safety of all employees.

Insertion of s 55F

The SH Regulation has also inserted new provisions regarding the determination of control orders.  The new section 55F provides that when implementing control orders, PCBUs must have regard to “all relevant matters in relation to the risk of sexual harassment or sex or gender-based harassment”.  Inclusive in this decision is “matters relating to characteristics of the workplace and work environment such as:

• “(i) a work environment that may give rise to a workplace culture, or system of work, in which unacceptable or inappropriate behaviour is, or may be, permitted; and
• (ii) a lack of diversity in the workplace generally or in particular decision-making positions; and
• (iii) other matters about the workplace or work environment that may affect a person’s behaviour in relation to a worker.”

What this means

It is not enough for PCBUs to generally consider sexual harassment or sex/gender-based harassment when identifying risks and implementing control measures.  From 1 September 2024, PCBUs must consider characteristics of workers, the workplace and the entire work environment.

Insertion of s 55H

This provision requires “the person conducting the business or undertaking must prepare a plan (a prevention plan) in compliance with subsection (2), to manage an identified risk to the health or safety of workers, or other persons, from either of the following at work—

• (a)sexual harassment;
• (b)sex or gender-based harassment”

Section 55H outlines the specific requirements of prevention plans including the requirement of consultation and that the plan must be in writing and be readily accessible and understandable to workers.

Non-compliance means a maximum penalty of 60 penalty units.

What this means

Commencing in March 2025, this provision will require PCBUs to prepare and implement prevention plans to manage identified risks of sexual harassment or sex/gender-based harassment in the workplace. 

PCBUs will be required to take reasonable steps to ensure workers are made aware of the prevention plan and know how to access it.

In the prevention plan, a procedure for dealing with reports of sexual harassment or sex/gender-based harassment must be included.  Specifically, PCBUs must make it clear to employees

• How to make a report;

• How the report will be investigated

• How the results of the investigation will be relayed

• The opportunity for representation when making a report

• The opportunity for access to dispute resolution processes

It is a requirement to review these plans every three years or in the event a report is made.

PROPOSED LEGISLATION – GENDER EQUALITY

The Albanese Government has introduced the Workplace Gender Equality Amendment (Setting Gender Equality Targets) Bill 2024, which will amend the Workplace Gender Equality Act 2012 (Cth) (“the WGEA Act”).

The Bill will introduce a new requirement that relevant employers with 500 or more employees (“Relevant Employers”) select and meet gender equality indicators (GEIs) to promote and improve gender equality in employment and in the workplace.

The GEIs are as follows:

• gender composition of the workforce;
• gender composition of governing bodies of relevant employers;
• equal remuneration between women and men;
• availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
• consultation with employees on issues concerning gender equality in the workplace;
• sexual harassment, harassment on the ground of sex or discrimination.

Whilst Relevant Employers are already required to lodge an annual report to the Workplace Gender Equality Agency Australia (WGEA) relating to the GEIs under the WGEA Act, the Bill intends to raise “the bar in the obligation on large employers, who may also be publicly named as non compliant if they do not set, improve upon, or meet the targets without reasonable excuse“, says Assistant Minister for Women, Kate Thwaites.

The Bill will allow the Minister to set gender equality targets and specify rules, including numeric and action targets for each GEI. Once targets have been set, employers will report to the WGEA on progress as part of their normal reporting submission. Achievement will be assessed at the end of a three-year cycle. 

If an employer is found non-compliant with the WGEA Act, they may be publicly named by the WGEA and will not be eligible for a certificate of compliance.  Whether an employer holds a certificate of compliance affects its eligibility to contract with the Australian Government through its procurement processes.
To access the Bill, click here:

CASE BRIEF: BULLYING APPLICATION IMPLICATIONS

In the recent decision of Application of Kavita Sharma [2024] FWC 2634 (24 September 2024), the Fair Work Commission (“FWC”) has highlighted the consequences that an Application for an order to stop bullying pursuant to section 789FC of the Fair Work Act 2009 (Cth) can have on both the alleged ‘bully’ and the employer.
In this case, the General Manager of Winfer Protection Pty Ltd T/A SAI Security (“the Company”) had engaged in bullying behaviour against the Chief Financial Officer (“CFO”).

The behaviour of the General Manager included:

• undermining the CFO’s authority;

• sending hostile emails;

• imposing impossible deadlines; and

• trying to reduce the CFO’s role to debt collection despite the task being assigned to another employee.

The General Manager then went on stress leave and whilst absent from the workplace, continued to bully the CFO.

The CFO claimed the “relentless bullying and harassment” began after the Company had acquired Bluestar Security in July 2023. The bullying behaviour led to the CFO suffering from severe anxiety, sleep issues and “immense mental pressure.”

During the hearing, the CFO’s director advised the FWC that he was “torn between retaining a key employee” whilst also maintaining the CFO, who had been employed for more than seven years.

The Decision

The FWC found that the General Manager’s actions amounted to bullying, including unreasonable management decisions that posed ongoing health risks to the CFO.  The FWC also noted that the General Manager’s behaviour persisted, even whilst he was on leave.

As a result, the FWC directed the General Manager not to communicate directly with the CFO if he returned to work, and to act professionally. In addition, the Company was ordered to implement a comprehensive anti-bullying policy and provide training to all employees.

Furthermore, as the General Manager did not attend the FWC Hearing, claiming he was recovering from “stress and anxiety” within the workplace, the FWC referred the matter to the Australian Federal Police due to the Manager’s failure to attend.

To read the Application, click on the link here.

CASE BRIEF: WORKING FROM HOME IMPLICATIONS

In the recent decision of Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91 (18 October 2024), South Australia’s Employment Tribunal found that a Council worker, who broke her arm and injured her knee after tripping over a pet fence in her home office, was eligible for worker’s compensation.

The Council worker was approved to work from home while pet-sitting a colleague’s puppy. The Council worker erected a temporary fence to keep the puppy and her rabbit separated and inadvertently created a hazard. The worker then fell over the fence whilst walking to the kitchen to make herself a cup of coffee. The tribunal found that the physical hazard (the pet fence) was a “significant contributing cause” of the worker’s injuries. In addition, it was found that the worker’s employment was deemed a “significant contributing cause,” given the worker’s autonomy in managing her work-from-home setup approved by her employer.

This decision reinforces that an employer’s obligation around work health and safety extends to work performed outside of traditional office spaces, including an employee’s home. With work from home becoming a permanent fixture in many workplaces, employers should review their safety protocols for remote work to ensure they adequately ensure that each employee’s workspace is a safe work environment.

To read the case, click on the link here.

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The content of this newsletter is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.