There have been some recent changes to the obligations of
transport and logistics employers under the Fair Work Act
and the Occupational Health and Safety Act (NSW).
Since the introduction of the Fair Work Act 2009 (Cth),
employment law has gone through significant changes which have
affected employers, including those in the transport and logistics
industry. The industry, which is known for its strong union
presence and safety concerns, has also been impacted by the recent
decisions relating to OHS.
In this article we'll outline the recent changes to the
obligations employers in the transport and logistics industry have
under the Fair Work Act and the Occupational Health and Safety
Act 2000 (NSW).
Adverse action under the Fair Work Act
Since the introduction of the new industrial relations
legislation, we have seen some changes to the "adverse
action" provisions under the Fair Work Act.
Furthermore, once an employee has established that adverse
action has occurred, the onus falls on the employer to prove that
the reason for the adverse action was not because the claimant had
a workplace right, engaged or refused to engage in a lawful
industrial activity, or because of unlawful discrimination.
Employers should note that the "adverse action"
protection is now extended to employees and prospective
The High Court in this instance found that WorkCover NSW will
now have to nominate with some precision what the employer should
have done to avoid breaches of the OHS Act, as a failure to do so
would render a defence under section 53 – namely, that
the required action was not reasonably practicable – near
impossible to establish.
The Kirk decision potentially represents a major shift in the
way OHS laws are applied in NSW, and while employers are in a
better position following the decision, the NSW legislation still
remains one of the strictest in the country.
The proposed legislation is due to be enacted in early 2012, and
the model laws bear close resemblance to legislation currently in
place in Victoria and Queensland.
Once the laws are enacted, employers who carry on business in
more than one state will be in a better position to ensure that
they meet their obligations under the legislation. It should be
noted that while the national laws will simplify compliance for
employers, stringent standards will continue to apply.
Can an employee be unfairly dismissed if they were terminated
due to OHS breaches?
The case in question turned on particular facts, and employers
should not interpret this decision to mean that employment cannot
be fairly terminated where there is a serious breach of workplace
safety policies and practices.
Employers should ensure that their organisation and their people
understand the obligations when terminating someone's
employment, and that the dismissal is warranted given the nature of
the breach and all the relevant circumstances.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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