Q&A - Victorian Public Sector Employment and OHS Year in Review 23-24

25 Mar 2024

On Wednesday 6 March 2024 our annual Year in Review webinar was presented by the VGSO's Workplace Relations and Occupational Safety Team.

Many of the important ER/IR/discrimination and OHS decisions of 2023 as well as key workplace developments that should be on your radar in 2024 were discussed. Following this presentation we had a number of questions that we have consolidated and answered below.

If you would like to view this webinar, the recording can be accessed on Innovation Network's VGSO Community of Legal Education.

Have there been any cases or reflections in general protection applications brought from contractors/labour hire staff?

There is certainly case law where such applications have been made. The FWC bench book is good initial resource to consider such cases. A key case in this area is Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345. The key takeaway in this case is that a host employer can be in breach of the general protections provisions if it ceases the engagement of a labour hire worker, even though there is no contractual relationship between the host employer and the labour hire worker.

Is there any information available from the Commonwealth on the amendments to model WHS Regs to ensure strengthened protections for those exposed to crystalline silica in all industries? (Training, air monitoring, and reporting workplace exposure standard exceedances to regulator).

On 13 December 2023, Work Health and Safety Ministers representing the Commonwealth, States and Territories agreed to prohibit the use of engineered stone in Australia. Safe Work Australia is responsible for drafting the relevant amendments to the Commonwealth's model Work Health and Safety Regulations 2011 and has published information about this topic on their website.

How can an employee say contact from an employer is unreasonable if the employee does not know the nature or reason for the contact? i.e. if the employee does not answer calls, they will not know the nature of the contact.

Because the nature of the contact is only one aspect that is considered when assessing whether the refusal to monitor emails (for example) was unreasonable, it acts "retrospectively". In other words, the right here is for certain employees not to monitor that contact but if it is found that, in not doing so, that refusal was unreasonable then the employer may consider next steps.

How often can we raise to our employers and activate the review that our role has moved outside of casual and into ongoing?

This also depends on which enterprise agreement applies to you. We suggest that you review your enterprise agreement in answering this question.

Is there any guidance as to the 'personal circumstances' that might make a refusal to connect outside of work hours 'reasonable'?

The only real guidance so far on this is if someone has caring/family responsibilities however that is not exhaustive. We also note that the level of disruption the contact or attempted contact causes the employee is also an important factor.

What about the proactive seeking of medical information where an employee refuses to provide medical information and any advice you may have in relation to this?

We suggest reviewing your relevant enterprise agreement and policies as this must be considered on a case by case basis. Broadly an employer may issue an employee a reasonable and lawful direction to receive this information however we suggest seeking specific advice. Please reach out to our team if needed (our contact details are within the PowerPoint and at the bottom of this web page).

With respect to Workplace Manslaughter, do you have a view on the likelihood of a similar outcome for workplace manslaughter due to a case where work-related psychosocial hazards lead to suicide?

The offence of Workplace Manslaughter is still a relatively new offence, and will only apply to fatalities which occurred on or after 1 July 2020. It requires proof, to the criminal standard of beyond reasonable doubt, that there was conduct that was negligent and caused the death of a person who was owed a duty.

There is a high bar to establishing proof of this offence beyond reasonable doubt, and requires a direct link between the negligent conduct and the death. Negligence in this context refers to the criminal negligence, namely that there was a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct occurred, and there was a high risk of death, injury or serious illness.

The particular circumstances which gave rise to the person's death would therefore be critical to ascertain whether the elements of the offence have been (or could be) made out.

In Victoria would a medical condition be considered a disability for the purposes of the Disability Discrimination Act?

Yes it is possible due to the term "disability" in both State and Federal legislation being broadly defined.

What implications do you foresee the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Bill 2023 will have on psychological health regulations and management of mental health in the workplace?

In a legal sense, they are mutually exclusive legislative proposals, and duty holders in Victoria are already required to manage the risk of workplace psychological hazards. The introduction of the proposed Regulations would not diminish this duty and, if passed, would in fact, augment it. All of this is separate and distinct from changes to WorkCover compensation scheme, which relates to how a workplace insurer manages accepted claims.

Contact our team

Frances Anderson Assistant Victorian Government Solicitor
M 0475 834 049 E frances.anderson@vgso.vic.gov.au

Dana Wintermantel Lead Counsel
M 0428 634 405 E dana.wintermantel@vgso.vic.gov.au

Kerry Maikousis Acting Lead Counsel
M 0438 722 619 E kerry.maikousis@vgso.vic.gov.au

Veronica Belot Acting Lead Counsel
M 0429 810 754 E veronica.belot@vgso.vic.gov.au

Access past events

To view this or other past webinars, please go to the resources section Innovation Network's VGSO Community of Legal Education.

This is a great place to catch up and obtain CPD points. Note the Innovation Network is for the VPS employees only - you will need to create a new account using your Vic Gov email if you haven't already.