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DO SUPERANNUATION CHANGES FROM 1 JULY 2008 AFFECT YOUR BUSINESS?
Robert Stevenson
Business owners should be aware of changes to the superannuation guarantee legislation which took effect from the quarter commencing 1 July 2008. As you know, the superannuation guarantee legislation provides for compulsory employer contributions to employee superannuation (and for contractors in certain situations). The main basis used for working ...
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HOW TO ESTABLISH A CONTRACTOR RELATIONSHIP

1. Legal tests

Historically, a contract of employment is called a “contract of service” whereas an independent contractor relationship is called a “contract for services”. It is necessary to be careful when entering into a relationship with a contractor to ensure that they are a contractor at law rather than an employee. Just because someone calls themselves a contractor will not necessarily save an employer from being responsible for workers compensation premiums for that person for instance. The ideal example of a contractor is of a landowner engaging a builder to construct their home. The homeowner can give the builder plans for their home but it is up to the builder how they construct the home, their hours of work and they have to provide building supplies and tools.

CASE EXAMPLE

EMPLOYEES AND CONTRACTORS IN A NUTSHELL

Abraham Abdalla v Viewdaze Pty Ltd t/as Malta Travel, Australian Industrial Relations Commission, Vice President Lawler, Deputy President Hamilton and Commissioner Bacon, Sydney, 14 May 2003

In dismissing an application for relief in respect of unfair dismissal, a Full Bench of the AIRC helpfully summarised the principles to be applied in determining whether a worker is an employee or independent contractor in light of the High Court’s 2001 decision in Hollis v Vabu Pty Ltd (the Bicycle Couriers case). The fact situation here concerned a travel agent who worked under a document called an “Employment agreement” but with several features of a principal-contractor relationship. The AIRC Full Bench said the following approach should be taken in determining whether a worker is an employee or independent contractor:

The over arching question is whether the contract between the parties is a contract of service or a contract for the provision of services, i.e. is the worker the servant of another in that person’s business or does the worker carry on a trade or business on their own behalf?;
The nature of the work and the manner in which it is performed needs to be considered;
The terms and terminology of any written agreement must be considered. However, parties cannot alter the nature of the relationship just by putting labels on the agreement or particular terms which do not truly reflect the relationship. It is only if there is still ambiguity after considering the totality of the relationship that the written agreement might be decisive;
Consideration should be given to various indicia developed over the years by the courts such as:

To what extent the “employer” exercises or has the right to exercise control over the manner in which the work is performed, place of work, hours of work etc;
Whether the worker performs work for persons other than the “employer”;
Whether the worker has a place of work separate to the “employer” and/or advertises their services to the world at large;
Whether the worker provides and maintains significant tools or equipment;
Whether the work can be delegated or subcontracted;
Whether the “employer” has the right to suspend or dismiss the person engaged;
Whether the “employer” presents the worker to the world at large as an “emanation” of the business, i.e. as an integral part of the business (although the weight to be given to this factor will vary from case to case);
Whether income tax is deducted from remuneration paid to the worker;
Whether the worker is remunerated by periodic wage or salary or by reference to the completion of tasks;
Whether the worker is provided with paid holidays or sick leave;
Whether the work involves a profession, trade or distinct calling by the person engaged;
Whether the worker creates goodwill or saleable assets in the course of their work;
Whether the worker spends a significant portion of his remuneration on business expenses;

If consideration of the indicia does not give a clear result, then it is a practical matter of whether the worker was running their own independent business rather than as a representative of another business with little or no independence in their conduct;
If the result is still uncertain, then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” which include but are not confined to the above. In our view, this practically means a consideration of what is fair and just in the circumstances.

This summary highlights the difficulties in distinguishing between the two relationships. With the increasing deregulation of the labour market and consequent flexibility which is occurring in workplaces, the distinction can often be blurred and is not an easy one to make. However, it should be highlighted that the position cannot be changed by artificial labelling.

2. Comparative features

Employment relationships commonly display the following features:

The employer has the right to direct how work is performed;
The employer is responsible for any loss occasioned by the negligence of employees;
Work is usually performed at the employer’s premises and with the employer’s equipment;
Employees work standardised hours;
Employees receive annual leave, personal leave, long service leave, parental leave etc and superannuation;
Income tax is deducted from an employee’s gross pay;
Employees are paid regularly;
An employee is generally paid an hourly rate;
An employee is generally reimbursed for expenses;
An employee has no inherent ability to delegate tasks to others;
Employers must have workers compensation coverage for their employees;
Employees are exclusively engaged by an employer;
Dismissed employees can bring unfair dismissal and sometimes unlawful dismissal claims.

In contrast to the employment relationship, an ideal independent contract relationship will display the following features:

The contract should be for a given result, a specific task or a series of tasks;
The contractor should retain a high level of discretion/flexibility in how the work is performed;
The contractor will bear responsibility for poor workmanship or injury;
Contractors are required to carry their own income protection, professional indemnity and public liability insurance;
The contractor usually maintains a separate workplace;
Contractors provide their own tools and equipment;
A contractor is normally contracted for a set period of time or to complete a set task or sets their own hours of work;
Contractors do not receive leave or other statutory entitlements of an employee;
A contractor should be able to delegate their work;
Contractors pay their own superannuation/GST/tax (although note the 80/20 rule);
Contractors generally submit their invoice for completed work and are paid at the end of a project;
A contractor can carry out work for other persons as well as the principal and can advertise their services to the world at large;
Generally, contractor agreements contain a mechanism for giving notice to remedy breach to the contractor;
Contractors can bring proceedings under unfair contract legislation or the common law.

3. Issues to consider

When considering whether to engage an independent contractor, a business owner should consider a number of practical and strategic issues:

How closely does the business owner need to control the work carried out by the contractor?
How long is the contractor likely to be a part of the business?
Are there any substantive financial benefits to engaging a person as a contractor rather than as an employee?
Is the reduction in paperwork more imaginary than real?
Is the contractor really carrying on their own business?

If a decision is made to engage an independent contractor, there are some guidelines which should be followed:

Ensure the contractor delivers the services through a corporate entity;
Where possible, ensure the contractor provides their own tools;
Where possible, allow the contractor to subcontract and to set their own hours;
Where possible, ensure payment is by result rather than by salary or hourly rate;
Where appropriate, allow the contractor to contract to other businesses;
Pay the contractor only on receipt of an invoice and don’t deduct PAYG tax;
Don’t include any form of paid leave arrangement in a contractor agreement;
All contractor agreements should be in writing;
Ensure the contractor has adequate income protection and public liability insurance and workers compensation insurance for any workers engaged by the contractor;
It should be clear from the contract that the parties intend a contractor and not an employment relationship;
The contract tasks should be clearly spelled out;
The contract should contain commencement and end dates.

CONTRACTS AND POLICIES

A. Contracts

Every employment relationship involves a contract between an employer and an employee. This contract may be verbal or in writing or may sometimes involve a mix of the two. It is not necessary to specifically agree on a contract for one to exist. The fact that an employee starts work for an employer brings with it certain fundamental implied terms, such as the right to payment for work performed and a duty of mutual trust and confidence.

WORKPLACE HEALTH AND SAFETY

This material specifically applies to the law in the state of Queensland. The principles are of general application in other states but the detail of the law varies from state to state.

A. General duties

The starting point is that all employers have a general duty at common law to implement and maintain a safe system of work for both their employees and others. This is often expressed as a duty to take reasonable care to avoid exposing employees to reasonably foreseeable risks of injury. In assessing whether or not an employer has breached its duty of care to an employee, a court will generally consider several factors including:

Was the employer aware of the risk of injury and if not would a reasonably prudent employer have been aware of such a risk?

Did the employer take all reasonable steps to avoid or reduce the risk?

Would the injury have been prevented or minimised had the reasonable steps been taken?

The question of what is reasonable is ultimately determined by reference to community standards and expectations and given the demanding statutory workplace health and safety obligations, the standard is a high one. Where an employer breaches its common law duty of care, the employee can claim benefits under the statutory system of workers compensation and/or sue for monetary damages in the common law courts. Your work cover insurance will cover you for any statutory or common law claim in this regard.

However, your common law duties are only a starting point. In Queensland, legislation imposes onerous, indeed strict, obligations on employers and persons conducting a business or enterprise to ensure the workplace health and safety of persons coming into their workplace. In order to understand the requirements and your obligations for workplace health and safety you must consider and understand relevant legislation and codes of practice.

B. Obligations under the Workplace Health and Safety Act 1995 (Qld)

The Act establishes a framework for preventing or minimising exposure to risk by:

imposing workplace health and safety obligations on people who may affect the health and safety of others by what they do, or fail to do;

establishing benchmarks for industry through the making of regulations and codes of practice;

establishing a workplace health and safety board that encourages industry participation and cooperation;

appointing workplace health and safety officers to help employers and principal contractors manage workplace health and safety;

encouraging workplaces to have workplace health and safety committees involving workers and management;

supporting worker involvement through the establishment of workplace health and safety representatives in the workplace;

appointing accredited providers to assist industry in managing particular risks; and

appointing inspectors to monitor and enforce compliance with the Act.

To understand your obligations and safety requirements you must be familiar with the:

1. Workplace Health and Safety Act 1995 (Qld) which imposes obligations on people at workplaces to ensure workplace health and safety;

2. Workplace Health and Safety Regulation 1997 which describes what must be done to prevent or control certain hazards which cause injury, illness or death; and

3. codes of practice (or prior to 18 November 2004, advisory standards) which are designed to give practical advice about ways to manage exposure to risks common to industry.

Under the Workplace Health and Safety Act 1991 (Qld) an employer has a general obligation to ensure the workplace health and safety of each of its workers in the conduct of the employer’s business or undertaking. These obligations include an obligation to:

1. Provide or maintain plant, equipment, substances or systems of work which are safe and with out risk to health;

2. Provide a system of work for the safe handling, use, storage and transport of plant, equipment and substances;

3. Provide all information, instruction, training and supervision necessary to ensure health and safety;

4. Provide and maintain a means of entry and exit from the workplace that is safe without any risks to health or safety;

5. Provide adequate facilities to ensure health, safety and welfare;

6. Provide for adequate monitoring of health and safety in the workplace to the extent that monitoring is relevant to the prevention of work related injuries (eg quality and temperature);

7. To keep adequate information and records relating to work related injuries.

It is important to note that in addition to the traditional obligations on employers, the legislation also imposes obligations on self employed persons, persons conducting a business or undertaking, persons in control of workplaces or relevant workplace areas, principal contractors, persons involved in the design, manufacture, supply, erection and installation of plant and substances, persons in control of fixtures, fittings or plant as well as workers and anyone else at the workplace. An employee is under an obligation to ensure their own health and safety at work generally and specifically;

To use protective equipment provided by the employer in accordance with the employers instruction; and

Not to wilfully or recklessly interfere or misuse anything provided for workplace health and safety.

1. What a person with an obligation must do

If the Workplace Health and Safety Regulation 1997 describes how to prevent or minimise a risk at your workplace you must do what the regulation says.

If there is a code of practice (or prior to 18 November 2004, an advisory standard ) that describes how to prevent or minimise a risk at your workplace you must do what the code says or adopt and follow another way that gives the same level of protection against the risk.

If there is no regulation or code of practice about a risk at your workplace you must choose an appropriate way to manage exposure to the risk. People must, where there is no regulation or code of practice about a risk, take reasonable precautions and exercise proper diligence against the risk.

2. Who has obligations?

Everyone has a part to play in ensuring their workplace health and safety and the workplace health and safety of others in Queensland. The Workplace Health and Safety Act 1995 (Qld) specifies workplace health and safety obligations for individuals in their various roles. This means that a person may have multiple obligations. For example, a person may be an employer, principal contractor and supplier of plant at the same time. In this case, the person has obligations in each of these capacities. The Workplace Health and Safety Act 1995 specifies the obligations for:

People who conduct a business or undertaking primarily employers and self-employed people;

People in control of a workplace, including owners and particular areas in the workplace;

Principal contractors;

People in control of fixtures, fittings or plant included in workplace areas, including owners;

Designers of plant;

Manufacturers of plant and substances used in the workplace;

Hirers, importers and suppliers of plant and substances;

Owners of plant;

Erectors and installers of plant;

Designers of structures, including building designers;

Workers ;

Workplace visitors;

Volunteers.

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3. How to meet WHS obligations

A person can meet their workplace health and safety obligations by following the law. You must:

Comply with a regulation or ministerial notice stating how to prevent or minimise exposure to a risk, or prohibiting exposure to the risk;

Adopt and follow the approach provided in a code of practice stating a way of managing exposure to a risk, or one that gives at least the same level of protection against the risk;

Take reasonable precautions and exercise due care in work activities if there is no regulation, ministerial notice or code of practice to guide you in managing a particular risk or preventing exposure to it. It is important to note that you still have a workplace health and safety obligation.

C. The Workplace Health and Safety Regulation

The regulation sets out the legal requirements to prevent or control certain hazards which might cause injury or death in the workplace. It prohibits exposure to a risk and prescribes ways of preventing or minimising exposure to a risk. If a regulation exists for specific risks at your workplace in order to meet your obligations under the Act you must do what the regulation says to prevent or minimise the impact of the risk. Things covered by the regulation include:

how to apply for:

a certificate of registration of registrable plant;

a certificate of registration of registrable plant design;

a certificate to work in a prescribed occupation;

a certificate of authority to appoint a workplace health and safety officer;

a certificate of appointment as an accredited provider;

a certificate to perform a prescribed activity;

what to do if a certificate is denied, cancelled or suspended;

how to renew certificates;

restrictions for working in ‘prescribed occupations' such as crane driving;

restrictions for ‘prescribed activities' such as demolition work or asbestos removal;

training requirements for people working in prescribed occupations or doing prescribed activities;

training requirements for workplace health and safety officers;

when notification needs to be given for building and construction work;

what to do if there is a workplace health and safety incident;

what is required of construction workplace plans and work method statements in high risk construction and demolition activities;

safe housekeeping practices for construction work including specific requirements for principal contractors;

safe work practices around excavations and underground services;

ways to prevent falls from heights;

ways to prevent things falling on people;

prohibited substances;

how to safely manage:

hazardous substances;

excessive noise;

asbestos materials and asbestos removal;

lead materials;

requirements for underwater diving work and ways to make recreational snorkelling safer;

designing, manufacturing, modifying, supplying and working in confined spaces;

the use of roll-over protective structures on tractors;

availability and maintenance of amenities such as toilets, dining facilities and drinking water;

building requirements including ventilation, floor space and lighting;

first aid requirements;

limits on atmospheric contaminants.

D. Codes of Practice

Codes of practice exist for the following;

Abrasive blasting	Asbestos
Cash in transit	Concrete pumping
Construction industry	Compressed air recreational diving and recreational snorkelling
First aid	Forest harvesting
Formwork	Foundry
Hazardous substances	Horse riding schools, trail riding establishment and horse hiring establishments
Manual tasks	Manual tasks involving the handling of people
Noise	Occupational diving work
Plant	Prevention of workplace harassment
Recreational technical diving	Risk management

This advisory standard is a generic risk management document. It describes a five-step process (known as the risk management process) for managing exposure to health and safety risks that can arise from workplace hazards.

Rural chemicals	Rural plant
Safe design and operation of tractors	Sugar industry

E. Reporting an incident

Part 7 of the Workplace Health and Safety Regulation 1997 requires certain people to notify Workplace Health and Safety Queensland of a:

serious bodily injury	work caused illness
dangerous event

Written notification is required within 24 hours of an incident in the event of any of the above occurring. If the incident involves a death, immediate notification is required on 1300 369 915. A Workplace Health and Safety Queensland Inspector is on call 24 hours. You can either print the approved form and fax it to the department or fill in the form online. You must also keep a copy of the form for your records for 1 year after the event.

Employers, self employed persons and principal contractors (at a construction workplace) have a legal obligation to report particular workplace incidents not causing death. If the workplace incident occurs at a construction workplace, the employer or self-employed person must:

immediately notify the principal contractor for the workplace that the workplace incident has happened; and

give the principal contractor any help the principal contractor may reasonably require to complete an approved form.

In the event of a death occurring, the following persons must report the incident:

if the death is the employer - the person next in charge;

if the death is anyone other than the employer - the employer or self-employed person;

if the death occurred at a construction workplace - the principal contractor.

There could be some instances when more than one person needs to report the incident. The maximum penalty for failing to notify Workplace Health and Safety Queensland is 2 penalty units or 0 for an individual, and 4 penalty units or 0 for a corporation/ company. Failing to make a record of an incident incurs the same penalties.

Employers, self-employed people and principal contractors who fail to notify Workplace Health and Safety Queensland or make a record of a particular incident at the workplace will not commit an offence if they:

did not know about the incident

were incapacitated by the work caused illness or work injury; and

notify WHSQ or make a record as soon as possible after recovery.

A non-notifiable incident is one that does not result in a person suffering from a serious bodily injury or death and is not a dangerous event. While you do not have to notify Workplace Health and Safety Queensland about non-notifiable incidents, it is important to record and investigate all incidents including "near misses" so action can be taken to prevent similar incidents occurring in the future. It is recommended that the record be made on the approved form within three days of the person making the record becoming aware of the incident. The record must be kept for one year after the record was made. Employers, self-employed people and principal contractors who fail to make a record of a particular incident at the workplace will not commit an offence if they:

did not know about the incident;

were incapacitated by the work caused illness or work injury; and

make a record as soon as possible after recovery.

If the incident is a work caused illness, or work injury, the following persons must make a record of it:

if it happened to a worker - the worker's employer;

if it happened to an employer - the employer;

if it happened to a self-employed person - the self-employed person;

if it happened at a construction workplace - the principal contractor;

If the incident is a dangerous event, the following persons must make a record of it:

if it happened at a workplace - the employer or self-employed person;

if it happened at a construction workplace - the principal contractor.

F. Relevant definitions

A notifiable incident is:

an incident resulting in a person suffering a work injury that is a serious bodily injury, including a fatality;

a work caused illness; or

a dangerous event.

A work injury is:

an injury to a person that requires first aid or medical treatment if the injury was caused by work, a workplace, a workplace activity or specified high risk plant; or

the recurrence, aggravation, acceleration, exacerbation or deterioration of any existing injury in a person if:

first aid or medical treatment is required for the injury; and

work, a workplace, workplace activity or specified high risk plant caused the recurrence, aggravation, acceleration, exacerbation or deterioration; or

any serious bodily injury, if the injury was caused by work, a workplace, a workplace activity or specified high risk plant.

A serious bodily injury means an injury to a person that causes:

the injured person's death; or

the loss of a distinct part or an organ of the injured person's body; or

the injured person to be absent from the person's voluntary or paid employment for more than four normal working days.

A work caused illness is:

an illness contracted by a person to which work, a workplace, a workplace activity or specified high risk plant was a significant contributing factor; or

the recurrence, aggravation, acceleration, exacerbation or deterioration in a person of an existing illness if work, a workplace, a workplace activity or specified high risk plant was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration.

A dangerous event is:

an event caused by specified high risk plant; or

an event at a workplace caused by workplace activity

if the event involves or could have involved exposure of persons to risk to their health and safety because of:

collapse, overturning, failure or malfunction of, or damage to, an item of specified high risk plant; or

collapse, or failure of an excavation or of any shoring supporting an excavation; or

collapse, or partial collapse of any part of a building or other structure; or

damage to any load bearing member of, or the failure of any brake, steering device or other control device of, a crane, hoist, conveyor, lift or escalator; or

implosion, explosion or fire; or

escape, spillage or leakage of any hazardous material or dangerous goods; or

fall or release from a height of any plant, substance or object; or

damage to a boiler, pressure vessel or refrigeration plant; or

uncontrolled explosion, fire or escape of gas or steam.

G. Defences

It should be clear from the above that the legislation creates a position of almost strict liability. However, it is a defence to any charges which may be made under the workplace health and safety legislation if the defendant can prove:

If a regulation or ministerial motive has been made about the way to prevent or minimise exposure to a risk, that the person followed the way prescribed in the regulation or notice to prevent the contravention;

If an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk; and

The person adopted and followed a stated way to prevent the contravention; or

The person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention;

If no regulation, ministerial motives, advisory standard or industry code of practice has been made about the exposure to a risk, that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention;

That the commission of the offence was due to causes over which the person had no control.

H. Corporate entities

The general position is that where an employer is a corporate entity able to sue and be sued in its own name, the directors and other officers of the company will not generally be liable for the company's actions. This immunity applies to both the civil and criminal liability of the company. However, the workplace health and safety legislation makes specific provision for the prosecution of a corporation’s executive officers. In Queensland, the reverse onus of proof requires the individual to establish a defence in order to escape liability. It is a defence if the officer proves that:

if he or she was in a position to influence the conduct of the corporation in relation to the offence that he or she exercised reasonable diligence to ensure the corporation complied with the provision; or

he or she was not in a position to influence the conduct the corporation in relation to the offence.

I. Accident investigations

After receiving notification of an accident, a workplace health and safety inspector will attend the workplace to conduct an investigation. It is normal for there to be some delay between the incident and the investigation. Workplace health and safety inspectors have statutory powers to carry out their functions which are very wide and include:

Powers of entry, including the use of reasonable force;

Conducting searches;

Carrying out examinations and testing of plant equipment and substances;

Dismantling plant and equipment;

Taking samples for analysis;

Removing items from the premises;

Taking photographic or video evidence;

Obtaining statements;

Obtaining copies or originals of documents; and

Requiring the employer's or occupier's assistance.

Workplace Health and Safety Queensland uses witness statements as one of the primary means for obtaining evidence during investigations. These interviews should commence by the issuing of a formal caution to the witness to ensure the admissibility of the evidence. There is no excuse for answering a question on the basis the answer may incriminate the person or the company. All questions must be answered, unless there is reasonable excuse.

If, after carrying out an investigation, it appears to the workplace health and safety inspector that a breach of the legislation has occurred, the inspector will generally conduct a final interview with a representative of the employer before any charges are laid.

J. Prosecutions

Towards the end of an investigation, it is likely that the Workplace Health and Safety inspector will give some indication how the matter will progress. An inspector may:

Issue an improvement or prohibition notice; and/or

Issue a penalty notice;

Commence proceedings; or

Take no further action.

It is normal for prosecutions to follow all but minor workplace accidents. A formal prosecution may be commenced at any time up to two years after the accident.

K. Employer’s actions following an incident

An employer’s actions following an accident can have a critical impact on their ability to defend a prosecution or make a submission which will mitigate in the determination of any penalty. Employers should ensure the following.

1. Investigate thoroughly as soon as possible;

It is normal for accidents to have multiple causes. Accordingly, it is important that accidents are investigated accurately, avoiding the natural temptation to make assumptions, guesses or identify a single cause. It is important to gather evidence immediately given that there is normally a significant delay between an accident and the commencement of any prosecution. It is advisable for witnesses recollections to be recorded as soon after the accident as practical as their recollections will decrease as time goes on and may be influenced by intervening actions or assumptions. The statements obtained by the investigating workplace health and safety inspector should not be relied upon as they may result as only superficial picture.

2. Obtain legal advice and assistance

Where an accident occurs that is likely to result in a prosecution, it is always desirable for an employer to involve a solicitor at the investigatory stage. In addition to any advantages involved in having a solicitor present during workplace health and safety interviews, significant advantages may be gained through the use of legal professional privilege. Where external investigations or reports are required, these should be commissioned by the employer’s solicitor to ensure legal professional privilege attaches. Similarly, internal reports and witness statements should be prepared in conjunction with the solicitor with the report being addressed solely to the solicitor to maximise the prospects of privilege attaching to the documents.

3. Beware of providing opinions

During interviews, it is common for workplace health and safety inspectors to ask a witness for his or her opinion. A common question may be How do you think of this accident could have been prevented? Witnesses should avoid drawing conclusions, expressing personal opinions or making assumptions during interviews as the answers that are provided at this time will usually be used as evidence later. If a witness does not know an answer, or is unable to provide an answer with certainty, the witness should say so. If the witness is not certain of an answer, the witness may ask the inspector if he or she may check any records and provide the inspector with an answer at a later time. Witnesses should understand that accidents normally never have a single cause and it can take many months to determine the complete the understanding of what occurred.

4. Provide all relevant documentation

As part of their investigation, workplace health and safety inspectors will normally request documentation that may considered relevant and the employer should not hesitate to provide an inspector with any additional documentation that it considers relevant such as evidence of training, workplace risk assessments and service documentation. All documentation provided to the inspector will be used when determining whether a prosecution will commence.

However, caution should be exercised before obtaining any preliminary accident report so that it does not become part of the evidence in the case. Such reports if they are to be prepared, should be commissioned by your legal advisor so that they are likely to be subject to legal professional privilege and consequently copies may not be obtained form the prosecution.

In general terms, you should ensure that the employer, business or undertaking establishes and actively implements a workplace safety plan to ensure that the work it undertakes is conducted in a safe manner. This extends to satisfying yourselves that your sub-contractors are also undertaking their work in a safe manner. You should ensure that all sub-contractors have appropriate policies of insurance in place and their own detailed safety plans for conducting their work. You could perhaps establish a checklist system which could be regularly reviewed with your sub-contractors. In this way, you can minimise the likelihood of exposure to workplace health and safety charges and potential civil claims. It may be advisable to speak to a workplace health and safety consultant for advice on the detailed steps you should take.

Federal, State and Territory legislation prohibits direct and indirect discrimination on a number of grounds as well as sexual harassment. Legislation also prohibits victimisation and vilification.

Most complaints of discrimination occur in a work context. The basic rule is that employers may not unlawfully discriminate in the arrangements made for offering employment, the selection of employees, or the terms and conditions of employment offered. Once an employment relationship exists, it is unlawful for an employer to discriminate on the basis of any of the prescribed grounds or attributes in the terms or conditions of employment, by denying access to promotion or other benefits (such as training), by subjecting an employee to any other detriment, or by subjecting an employee to less favourable working conditions resulting in harassment.

There may be an exemption from these requirements in limited circumstances, particularly where the nature of the role has some particular requirement. It is also necessary for employers to make clear to employees and contractors that they are also bound by this legislation as the employer can be held liable for the actions of their workers.

Complaints about discrimination can be made to either the state Anti-Discrimination Commission or to the federal Human Rights and Equal Opportunity Commission where the employer is a corporation. The following comments primarily reflect the provisions of the Queensland anti discrimination legislation but the federal legislation and other state legislation is similar in effect.

The Anti-Discrimination Act 1991 (Qld) says it is against the law to treat a person unfairly because of:

sex
marital status
relationship or parental status
race
religious belief or activity
political belief or activity
impairment/disability
trade union activity
lawful sexual activity
pregnancy
breastfeeding needs
family responsibilities
gender identity
sexuality
age.

It is also a breach of the legislation to treat a person unfairly because of their association with someone from one of these groups. For example, if you have to leave a café because your breastfeeding friend has been asked to leave, it is unlawful, and you, as well as your friend, could lodge a complaint with this Commission.

The legislation applies in the areas of:

work and work related areas including pre-work;
education;
the provision of goods and services;
superannuation;
insurance;
disposition of land;
accommodation;
club membership and affairs;
administration of state laws and programs; and
local government.

By way of example, discrimination comes within the legislation if a person is treated unfairly when they:

apply for a job, or try to get into a course;
are at work, school, college or university;
buy things in shops, hotels etc;
rent a flat, house, caravan or motel room;
apply for credit or a loan;
use any business, trade or professional services;
use services provided by your city or shire council or the state government;
deal with superannuation or insurance companies;
buy land.

In order to lodge a complaint with the Commission or HREOC, it is necessary for a person to show that they were treated badly or unlawfully on one of the grounds (e.g. race) and in one of the areas (e.g. at work) and also demonstrate how they were affected by it.

Not all discrimination is against the law. No matter how unfair the treatment is, it must be covered by the legislation before a complaint can be lodged with the Commission. For example, the Commission could not deal with a complaint if a person was treated unfairly because of their physical appearance or because of bullying in the workplace, unless these can be related to an attribute such as race or sex.

Complaints of discrimination must be lodged with the Commission within 12 months of the incident occurring. If the matter cannot be resolved by conciliation in the Commission, then the complainant can choose to refer his complaint to the Anti-Discrimination Tribunal Qld where the complaint is heard through a judicial process.

DIRECT AND INDIRECT DISCRIMINATION

Direct discrimination occurs if a person treats someone else less favourably than they would another person in comparable circumstances because of, for instance, age or race.

Indirect discrimination involves imposing a requirement, condition or practice that appears fair and neutral but can only be complied with by a higher proportion of people without the attribute or personal characteristic. The question is whether the issue is likely to have a proportionately different or worse impact on a particular class of persons.

Most unfair treatment is clear, for instance not getting a job because a person is told they are too old, or not being able to rent a flat because you and your partner aren't married, but sometimes it is less obvious. Sometimes, a policy or rule seems fair because it applies to everyone, but a closer look shows that some people are being treated unfairly. For example, an employer might have a policy of not letting staff work part-time. This policy could impact unfairly on people who have children and can't work full-time, and may be against the law. This is called indirect discrimination, and is against the law, where it can be shown that the rule isn't reasonable in all the details of the case.

CASE EXAMPLES

AGE DISCRIMINATION – TEACHING OLD DOGS NEW TRICKS

Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QCA 518, Court of Appeal, Davies, Jerrard JJA and Philippides J, Brisbane, 27 November 2002

The Queensland Court of Appeal has dismissed an appeal by an employer and confirmed an Anti-Discrimination Tribunal decision which found that the employer had dismissed two employees on the basis of their age and contravened s136 of the Anti-Discrimination Act 1991 (Qld). The facts were that the employer had hired the complainants as storemen for a period of approximately three months, before dismissing them both in March 2000 on the basis that there was insufficient work due to a down turn in trade. In April 2000 one of the two complainants became aware that two younger employees had filled their previous positions. The complainants had their matter referred to the Tribunal by the Anti-Discrimination Commissioner on 8 December 2000. The employer argued that there had been a downturn in the business which meant there was not enough work to retain the complainant’s services and the terminations were decided on a “last employed, first out basis”. However, the Tribunal found that there was no lack of work for the respondents at the time of their dismissal and the loss of business from a major customer did not give rise to a need to reduce the number of storemen employed, nor any need for cost-cutting. There was evidence the employer decided employ storemen who could later be trained as salespeople. The Tribunal accepted that the substantial reason for the respondents dismissal was their age, in contravention of the legislation. The employer was ordered to pay one complainant ,582 and the other complainant ,906. The Court of Appeal rejected the arguments on appeal that the Tribunal had failed to give adequate reasons and that there was insufficient evidence to ground the finding of discrimination and the appeal was dismissed with costs.

Employers should be extremely cautious about rejecting requests for carers leave, particularly where there are urgent circumstances. Under both state and federal law, employees have clear entitlements to carers leave and employers should ensure they are familiar with the legal requirements.

B. Minimum terms and conditions

The minimum conditions set out in the Australian Fair Pay and Conditions Standard for full time employees are:

Guaranteed basic rates of pay and guaranteed casual loadings;
Maximum ordinary hours of work limited to 38 ordinary hours of work per week (which can be averaged over a period of up to 12 months) and reasonable additional hours;
Four weeks paid annual leave per year (up to two weeks of which can be cashed out at the employee's written election if permitted in a collective agreement);
Ten days paid personal/carers leave per year with provision for an additional two days of unpaid carers leave per occasion and an additional two days of paid compassionate leave per occasion; and
52 weeks of unpaid parental leave (including maternity, paternity and adoption leave).

The references below relate to the Fair Pay Standard unless otherwise indicated.

i. Minimum Wage

The federal minimum wage is currently .47 per hour (as from 1 October 2007). Casual employees are entitled to a default loading of 20% ie .16 per hour. The minimum wage is reviewed at a federal level each year by the Australian Fair Pay Commission which was another creation of the Work Choices legislation. At a state level, the state industrial relations commissions generally hold an annual wage case to update the minimum wage in each state.

ii. Hours of work

Ordinary weekly hours of work under the Fair Pay Standard for full time employees are 38 hours per week. By agreement between an employer and employee, this period can be averaged over any period up to a year. In addition, an employee may be requested to work reasonable additional hours. If so, they are entitled to be paid at the rate of the federal minimum wage for such additional hours unless otherwise agreed. The Fair Pay Standard provides that the employee may refuse to work additional hours in circumstances where the working of such hours would result in the employee working hours which are unreasonable having regard to:

Any risk to employee health and safety that might reasonably be expected to arise if the employee worked the additional hours;

The employee's personal circumstances including any family responsibilities;

The operational requirements of the workplace;

The notice (if any) given by the employer of the additional hours and by the employee of his/her intention to refuse it;

Whether the additional hours are on a public holiday; and

The employee's hours of work over the four weeks ending immediately before the employee is required or requested to work the additional hours.

These provisions apply to all employees, including casual employees.

iii. Annual leave

Full time employees are entitled to four weeks annual leave each year. Part time employees have a pro rata entitlement. Casual employees do not have an entitlement to annual leave.

iv. Personal leave

Full time employees are entitled to up to 10 days paid personal leave per year (which includes sick leave and carers leave) and an additional two days unpaid carer’s leave per occasion. Part time employees receive a pro rata paid personal leave entitlement. The entitlement to paid personal leave can be increased by the employee taking paid personal leave at half pay.

In addition to paid personal leave, all employees (whether full time, part time or c