Articles

In the last few years, the Fair Work Ombudsman (FWO) has become increasingly vigilant in pursuing small to medium sized employers who are not compliant with their obligations in relation to employee entitlements, in particular the payment of wages. The FWO is increasingly willing to take Court action against employers who are failing to comply with their obligations arising under the Fair Work Act 2009 (Cth) and any applicable awards. Recent judgments from the Federal Courts also show that Judges are prepared to hand down orders for large penalties where there have been serious contraventions. Given the increasing vigilance in this area of employee entitlements, employers and their directors and managers are strongly encouraged to conduct regular compliance audits and staff training to avoid exposing themselves to civil penalties and back payment orders.

One of the features of the Model Work Health and Safety Act is the imposition of duties on persons who are in a position to control or influence safety in workplaces. The legislation contemplates that more than one person can have a work health and safety duty in relation to the same matter. One of the first convictions under this consultation provision was handed down in May. The case involved an employee who was injured, when the guttering he was handling came into contact with power lines. The employee had been placed in his position by an apprentice placement organisation, was being supervised by a self-employed roofer and was working at a site under the control of a construction company. All three of these defendants had their own separate duty to ensure the safety of the employee, as well as a duty to consult, co-operate and co-ordinate with each other about safety arrangements, which they failed to uphold. This decision has particular significance for training and placement organisations and host employers.

Traditionally, Australian Courts have been cautious about claims brought by employees alleging breach of statutory prohibitions against misleading and deceptive conduct in trade or commerce. The frequently occurring hurdle in such cases is that Court’s have not considered conduct, which occurs during the course of ongoing employment, to be “in trade and commerce”. The position, however, has been that misleading or deceptive conduct in pre-employment negotiations may support a statutory cause of action for misleading and deceptive conduct. Courts have taken a more limited view with respect to representations made to an existing employee with a view to retaining the services of that employee. The Federal Court of Australia recently ordered an insurance building company to pay its former senior insurance executive more than $330,000 in damages for misleading and deceptive conduct, in breach of the Australian Consumer Law.