Representation in the Fair Work Commission

The Fair Work Commission (Commission) has allowed a union officer to represent two employees in an unfair dismissal application, even though the employees were not members, and could not be members, of the union.

In a decision made on 28 May 2014,  the Commission allowed an officer of  the Construction, Forestry, Mining and Energy Union (CFMEU) to represent  two motor truck drivers, despite the fact that the CFMEU Rules state that motor truck drivers cannot be members of the CFMEU.

Commissioner Spencer noted that  the Fair Work Act 2009 (Cth) (FW Act) only requires a person to seek leave to appear on behalf of a party where that person is a lawyer or paid agent.  As the union official was not being paid, he did not need leave to appear on behalf of the employees.

State government employees excluded from anti-bullying laws

A school teacher employed by the Western Australian Department of Education (Department) was unsuccessful in her application for an order to stop bullying conduct that she alleged occurred at her workplace.  The Commission found that the Department was not a constitutional corporation and therefore fell outside  of the coverage of the anti-bullying provisions in the FW Act.  The decision confirms that state government employees are excluded from the anti-bullying provisions in the FW Act.

Bullying claims dismissed

On 26 May 2014, the Commission dismissed an employee’s claim under  the anti-bullying jurisdiction of the FW Act. This was following the employee’s dismissal on the basis that the claim had no reasonable prospects of success.

Under the FW Act, the Commission can make any order that it considers appropriate to prevent a worker from being bullied at work, excluding an order for damages.  Before the Commission can make an order though, it must be satisfied that there is a risk that the worker will continue to be bullied at work.

In this instance, the Commission held that there could be no risk of continued bullying at work where the employee had been dismissed, even though the employee argued that the dismissal was unlawful.  The Commission noted that if the employee was successful in obtaining reinstatement through other proceedings, he could make another application to prevent workplace bullying.

Superannuation - review of default funds on hold

On 6 June 2014, a Full Bench of the Federal Court declared invalid the direction given by Justice Ross, President of the Fair Work Commission, to appoint himself to the expert panel conducting the review of default superannuation funds in modern awards. It also declared that the purportedly reconstituted expert panel had not been correctly reconstituted in accordance with the requirements of the FW Act.

Justice Ross subsequently announced that the Commission’s expert panel would not deal with the four yearly  review in light of the Federal Court ruling.All applications for superannuation funds to be added as default options to modern awards are on hold until the panel is reconstituted.

First “officer” prosecution under WHS laws

In June 2014, the first prosecution  of an “officer” under work health and safety (WHS) laws commenced in the Australian Capital Territory (ACT).

Kenoss Contractors Pty Ltd and one of its senior employees, Mr al-Hasani, have been charged with WHS offences.  The charges arise from an incident where a truck driver was electrocuted when he made contact with power lines after his truck tipped over while unloading gravel at a dumping station in March 2012.

Kenoss has been charged with breaching one of its principal obligations under the ACT’s Work Health and  Safety Act 2011, while Mr al-Hasani has been charged with failing to exercise  due diligence.  Like Kenoss, he has also been charged with an additional Category 2 offence.  Accordingly, the company faces a maximum fine of $1,500,000, and Mr al-Hasani faces a maximum penalty of $300,000.

This case may be important in  determining the reach of the officer provisions under the harmonised WHS laws. It may also clarify whether officers who are considered to be “persons conducting businesses or undertakings” (PCBUs) under WHS laws can be prosecuted, even where there is no conviction or finding of guilt against the PCBU. Interestingly, Kenoss is presently in liquidation, however this does not appear to be an impediment to the charge against Mr al-Hasani being pursued.

Mr al-Hasani pleaded not guilty to both charges and the hearing of his case has been scheduled for 17-19 December 2014. Despite being in voluntary liquidation, Kenoss is required to face court with Mr al-Hasani later this year.

The Victorian safety regulator’s name change

From 1 July this year, Victoria’s peak workplace safety regulator will no longer use the “WorkSafe Victoria” brand in favour of returning to its legal name, being the “Victorian WorkCover Authority”.

Changes to movement of asbestos waste in NSW afoot

The NSW Environment Protection Agency (EPA) is set to introduce new waste-tracking requirements for the movement of asbestos in that state. The changes will require that movement of any load of asbestos materials greater than 80 kgs be tracked as part of the waste-tracking system. The move will bring NSW more in line with the Victorian position, where loads over 50 kg must  be tracked.  Non-compliance with waste-tracking obligations in Victoria is a regular source of enforcement activity by its state-based EPA.

The proposed changes are anticipated to come into force on 1 September 2014.