16 Sep 2010

Round-up: occupational health and safety and employment law

by Maurice Baroni

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.

Under the new laws, employers cannot take adverse action against persons because they have a workplace right, because they have or have not exercised the right, or because they propose or propose not to exercise the right. An employee now has an unfettered right to make a complaint or inquiry in relation to his or her employment without fear of adverse action.

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 employees.

Employers' responsibilities under the NSW OHS law

Following the High Court decision in Kirk v Industrial Relations Commission [2010] HCA 1, employers are in a somewhat better position when defending claims of breaches under the Occupational Health and Safety Act 2000 (NSW).

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.

Proposed Federal OHS legislation

Disparity between OHS legislation in different states has led to a proposal by the Federal Labor Government to enact Federal OHS laws which will standardise OHS obligations in Australia.

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?

While the termination of employment is subject to the unfair dismissal provisions of the Fair Work Act, it has been a long-standing principle that termination due to OHS breaches will not be "harsh, unjust or unreasonable". A recent decision by Fair Work Australia, however, has determined that a dismissal due to OHS breaches can be just and reasonable but still harsh under the circumstances.

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.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.