Keeping your employees safe is your job. Making sure you do it, is ours.

We're enforcing tougher laws to create safer workplaces.

Putting people's lives at risk in the workplace will not be tolerated. It's every employer’s responsibility to make sure their employees stay safe at work and return home every day.

With more inspectors out there, if you’re running an unsafe workplace you will be caught and held to account.

Role of WorkSafe Inspectors

The primary role of WorkSafe inspectors is to ensure employers and other duty holders comply with occupational health and safety laws. Inspectors do this by:

Insight from FIA legal partner Kingston Reid relating to the Construction industry and how it could affect your business.

The 2022 federal election has delivered a new Labor Government. Whilst it is yet to be determined, it looks like Labor will form a majority in the House and Labor and the Greens will form a majority in the senate. This is likely to lead to workplace and industrial relations reform. Although Labor’s ‘Secure Australian Jobs’, ‘Aged Care’ and ‘Equality for Women’ pre-election policies give us a fair idea of what these reforms will be, the presence of Greens and teal independents in our Parliament may see a reprioritisation of proposed reforms or the adoption of reforms which were not front and centre during the election campaign.

Although we will have a better insight into what the key ticket items for the new Government will be following the ‘Australian Jobs Summit’ (which Labor intends to convene with the business community and trade union movement as soon as practicable), we predict what major reforms will be trumpeted in the short to medium term future below.

Au revoir ABCC (again)

It is likely that Labor (with the support of the Greens) will quickly introduce a Bill into Parliament to abolish the Australian Building & Construction Commission (ABCC) and repeal the Building and Construction Industry (Improving Productivity) Act 2016 including the Code for the Tendering and Performance of Building Work 2016.

While the legislation and Code remain in place for now, it is unlikely that moving forward the ABCC will prosecute new matters, particularly those relating to union activities (such as union materials on building sites).

I am woman, hear me reform

As well as being the “climate change election”, the election was also fought and won on gender issues. Labor, the Greens and several teal independents campaigned on the adoption of all 55 recommendations of the Australian Human Right Commission’s (AHRC) Respect@Work. As such, these recommendations are likely to be implemented sooner rather than later.

As a recap, key reforms recommended in the Respect@Work report include:

• Introducing a positive duty for employers to “take reasonable and proportionate measures to eliminate sex discrimination, sexual harrassment and vistimisation, as far as possible”. This will require employers to take active steps to make sure that its workplace(s) are free from sex discrimination, sexual harassment and victimisation. Simply having a policy which states that your organsiation has a zero-tolerance to these things is unlikely to be enough in fulfilling this positive duty. Employers will have to introduce measures such as mandatory bystander training for all employees, appointing “Respect@Work Officers” (as you would appoint First Aid Officers) to be a points of contact within your organisation for affected employees and those who need further education, regularly surveying employees on their experience within the workplace and holding managers accountable if there is any failure to prevent, or intervene early in cases of, sexual discrimination, sexual harassment and/or victimisation.
• Give the AHRC broader powers to assess compliance with the positive duty outlined above and investigate workplaces over systemic sexual discrimination and harassment. The AHRC will be given investigative and enforcement powers similar to those of the Fair Work Ombudsman, including powers to:
  • require the giving of information, production of documents and examination of witnesses;
  • enter into enforceable undertakings with an organisation in breach of the positive duty; and
  • apply to the Court for an order requiring compliance with the positive duty.
• Amend the AHRC Act to insert a cost protection provision where a claim proceeds to the Federal Court. The report recommends that such a provision is consistent with section 570 of the Fair Work Act 2009 (FW Act). In this past, the absence of a provision in the AHRC Act similar to section 570 of the FW Act has deterred persons from making an application to the Australian Human Rights and instead, these persons have utilised the general protections provisions in the FW Act (where applicable). Thus, employers can expect to see an uptick in claims made to the AHRC. Particularly in circumstances where the report also recommends that unions and other representative groups should be given the right to bring claims under the AHRC Act to Court.

In addition to the reforms recommended in the Respect@Work report, it is likely that the following will be introduced:

• ‘gender pay equity’ as an objective of the FW Act, a statutory ‘Equal Remuneration Principle’ (modelled on the Queensland Equal Remuneration Principle) and the establishment of a ‘Care and Community Sector Expert Panel’ and ‘Pay Equity Panel’ within the Fair Work Commission (FWC). In practice, this may result in a higher number of applications for equal remuneration orders and equal remuneration orders made by the FWC.
• payment of superannuation contributions on paid parental leave. Although Labor appeared to abandon this policy during its election campaign, this policy formed part of the Greens’ platform and therefore, may re-enter the policy debate, particularly if the Labor government secure a second term in 3 years.

Higher wages and ending insecure work

If Labor commands a majority in the House of Representatives in its own right, it is likely to be in a position to implement its ‘Secure Australian Jobs’ policy. Obviously, the composition of the Senate will have a baring on just how aggressive the policy position is pushed.  We consider that there are four key policies that Labor will prioritise.

• Casual definition – Labor will amend the definition of casual employment to enable post-contractual conduct to be taken into consideration (e.g. patterns of work) in assessing whether a casual employee is a “true” casual employee.
• Independent contractors – following the High Court decisions in Jamsek and Personnel Contracting, Labor will also likely introduce legislation which restores the ‘multifactorial test’ (or similar) previously applied by Courts and Tribunals in determining whether a person is an independent contractor or employee. Labor will also likely move to give the FWC new powers to deal with “employee-like” relationships (i.e. relationships in the gig economy), including powers to make orders for these workers and powers to resolve disputes between these workers and the platforms through which they perform work.
• Same job, same pay for labour hire employees – Labor will introduce legislation to ensure workers employed through labour hire companies receive at least the same pay as workers who are employed directly.
• Fixed term contracts – the FW Act will be amended to ‘cap’ fixed term contracts for the same role to two consecutive contracts or to a maximum duration, including renewals, of two years with some limited exceptions.

In addition, as promised during the election campaign, the Albanese-led Government will make a formal submission to the FWC (as part of its annual wage review this year) in support of an increase to the minimum wage. It is unclear what percentage increase the Government will be supporting, however, it is likely to be somewhere between 5% and 5.5% (an increase of 5.5% is contended for by the ACTU). Although any submission made by the Government to the FWC will not necessarily result in an increase higher than 5%, any position taken by the Government will likely impact on current and upcoming enterprise agreement bargaining rounds as unions shift to demand increases in line with any minimum wage increase contended for by the Government.

‘Unstacking’ of the Fair Work Commission

There has been a lot of talk from Labor this election about fixing the “stacking” of the FWC by appointing more “Labor representatives” to the FWC, before returning “half/half appointments”.

Labor will likely seek to justify making its new appointments by extending the powers of the FWC to include:

• the powers of the new expert ‘Care and Community Sector Expert Panel’ and ‘Pay Equity Panel’ (as outlined above).
• powers to deal with “employee-like” relationships (as outlined above).
• (potentially) powers to set minimum pay and standards for owner-drivers as previously done by the Road Safety Remuneration Tribunal. It is unclear whether there will be separate legislative provisions introduced into the FW Act including these powers or whether owner drivers will simply be covered by the new “employee-like” work jurisdiction. It is also possible that Labor will seek to set up a tribunal separate to the FWC to deal with minimum pay and standards for owner drivers, as currently pushed for by the Transport Workers Union.
• powers to regulate registered organisations. Labor will abolish the Registered Organisations Commission and refer serious contraventions of regulatory laws by registered organisations to the Australian Securities and Investments Commission for investigation and prosecution.
• (potentially) powers to conciliate and arbitrate (by consent) underpayment of wages claims.

It is also possible that Labor will introduce a ‘Fair Work Court’, an independent judicial division of the Fair Work Commission determining matters such as unlawful dismissal, general protections claims and underpayment of wages claims.

Criminalising wage theft and industrial manslaughter

The new Government is committed to legislate to make wage theft and industrial manslaughter criminal offences. It will consult with unions, States and Territories and employer groups to ensure federal wage theft and industrial manslaughter laws will not override existing state and territory laws in operation.

Employers need to start considering how they are currently managing these issues and how current policies could be strengthened. Apart from any Government policy, the Election results provide employers with helpful insights into what issues matter most to their employees which presents an opportunity to reflect on how your organisation fairs in relation to these issues.

We will continue to keep you updated as these post-Election issues develop. Please reach out if you have any questions.

 

Emily Strachan Associate +61 2 9169 8417 emily.strachan@kingstonreid.com	Christa Lenard Partner +61 2 9169 8404 christa.lenard@kingstonreid.com
Shelley Williams Partner +61 7 3071 3110 shelley.williams@kingstonreid.com	Katie Sweatman Partner +61 3 9958 9605 katie.sweatman@kingstonreid.com
Michael Stutley Partner +61 8 6381 7060 michael.stutley@kingstonreid.com

On 1 April 2019 a steel modular scaffold collapsed at a construction site in Sydney, crushing two workers. Christopher Cassaniti was fatally injured while Kahled Wehbe suffered permanent life changing injuries.

The scaffold was a wedge-lock type birdcage scaffold, originally used as a bridge between a personnel and materials hoist and the building under construction. At the time of collapse the hoist had been removed and the scaffold was being used to store material and to complete the remaining façade work on the exterior of the building.

The subsequent investigation by SafeWork NSW identified issues with the planning, design, management and modification of the scaffold, as well as a lack of clarity regarding its duty rating. It also identified a need for clear written guidance regarding:

The prosecution resulted in a WHS Project Order made under Section 238 of the NSW Work Health and Safety Act 2011, to develop a Scaffolding Industry Safety Standard to provide this guidance.

DOWNLOAD THE NEW SAFETY STANDARD HERE

SafeWork NSW inspectors are visiting construction sites to talk with principal contractors (PCs) and site supervisors about formwork and concrete placing equipment safety, as part of its state-wide focus on concreting in construction.

SafeWork takes a zero-tolerance approach to workers' lives being put at risk from formwork and concrete placing equipment.

On-the-spot fines of up to $3,600 apply for PCs and site supervisors who do not manage the risk of falls from heights, or workers who operate a concrete placing boom without a high risk work licence.

Risks related to formwork

The major risks related to formwork include falls from platform edges or through penetrations, being hit by falling timbers or crane loads, formwork collapse and contact with powerlines.

You can ensure safe systems of work are in place for the planning, design, erection, use and dismantling of formwork by:

Here are some useful resources:

Formwork Safety checklist for site supervisors - SafeWork NSW

General information about formwork - SafeWork NSW

Formwork Code of Practice - SafeWork NSW

Risks related to concrete placing equipment

The major risks involving concrete placing equipment include being hit by the hose or concrete, hitting a structure or powerlines and mechanical failure.

To enable safe concrete pumping operation onsite, you must ensure:

Concrete Placing Equipment Operations - SafeWork NSW fact sheet for PCs and site supervisors

Here are some useful resources:

Concrete Placing Equipment Operations - SafeWork NSW fact sheet for PCs and site supervisors

Guide to managing risk in construction: concrete pumping - SafeWork Australia

Plant item registration - SafeWork NSW

Concrete placing boom high risk work licence - SafeWork NSW

Verify NSW high risk work licence information - Verify.Licence

Verify Fair Trading occupational licence information - Licence Check

Throwback Thursday - How do you manage rising injury rates in a growing industry which employs more than 6000 people, with no industry body representation and no clearly recognised safety training programs that teach consistent safety standards and where workers are twice as likely to have a serious injury?

An article written by FIA in 2019 that featured in Build Magazine.

Find out what has changed in our next upcoming article.

Victorian employers are required by law to identify, eliminate or control safety risks in the workplace, in consultation with their workers.

A good way to help address these challenges is by establishing a Health & Safety Representative (HSR) network.

HSRs can help employers facilitate communication between employers and workers. They can make a real difference in assisting employers achieve better health and safety outcomes in the workplace.

Understand what HSRs can do for your workplace.

 LEARN MORE

The Cracks in the Foundation whitepaper by CreditorWatch has found the construction industry’s key credit metrics, such as late payment times and insolvencies, are set to worsen over the next 12 months as the impact of high-profile company collapses leaves a lasting impression.

This year has already seen the demise of several companies, starting with the voluntary administration of Probuild, one of Australia’s largest builders with a national pipeline of $5 billion, quickly followed by ABD Group, Privium Home, Condev and most recently Next Construction.

These failures were caused by an unfortunate storm of staff shortages, supply chain disruptions, cost blow-outs as inflation surges globally, and the gradual removal of COVID-19 government stimulus packages. Adding to these were inherent industry issues such as payment structures that disadvantage subcontractors, often operating on razor-thin profit margins.

The risk for Australia’s construction industry lies in the increasing likelihood of a domino effect collapse, which could have an extensive impact on economic recovery. A healthy construction industry is vital to a strong economy and ongoing growth, with the sector accounting for the employment of almost nine per cent of Australian workers and 7.5 percent of Australia’s GDP.

Equally, the indirect impact of construction cannot be underestimated.

“A crisis in the construction industry has the potential to flow through to wider industries,” adds CreditorWatch Chief Economist Anneke Thompson. “The importance of the sector to the economy cannot be limited to the physical build itself, but the ongoing financial benefit the end product provides. Failure to build enough hospitals, schools, roads and houses now because the industry is in crisis, will damage employment and economic growth years into the future.”

Rider Levett Bucknall’s Tender Price Index Series is forecasting significant increases in construction tender prices across Australian capital cities for the next three years. This, exacerbated by rising bank funding rates, means disruption in the sector will continue for the foreseeable future as contractors fail to meet their repayments.

“All key credit metric indicators from insolvencies to payment behaviours are pointing to some tough times ahead,” outlines CEO of Open Analytics James O’Donnell.

“The industry specific challenges of late payment times is of particular concern for SME subcontractors and suppliers, which are looking to deal with builders that pay promptly, an increasingly difficult task with approximately 12 per cent of construction companies averaging more than 60 days in payment arrears. This blowout in repayment times is far greater than any other sector, representing the almost normalisation of late payments and razor thin margins in the industry.”

Get involved and have a voice!

With legal changes coming into government infrastructure projects and quotas that are impossible to reach - you need to take control of your destiny, not have others who have no idea about your business take control or dictate the terms.

Become a member and advocate for change and have industry support your business.

An individual contractor or a self-employed person can be both a worker who is owed WHS duties and a person conducting a business or undertaking (PCBUs) who may owe WHS duties to themselves and to other workers, according to Safe Work Australia.

Safe Work Australia recently published a new fact sheet WHS information for PCBUs and workers who are working as part of a contractual chain – which refers to the situation where, in relation to the same project or work matter, there are multiple contractors and subcontractors.

A contractual chain is common in industries such as building and construction, road transport and events management.

There can be several levels in a contractual chain. For example, a client may engage a head contractor to deliver a logistics project.

The head contractor may engage contractors to undertake parts of the project, and these contractors may engage subcontractors to carry out particular activities that the contractor is to deliver.

In a contractual chain, there will be multiple PCBUs who share the same WHS duties, and the fact sheet said PCBUs who share duties must each discharge their duty to the extent to which they have the capacity to influence and control the matter (whether that matter is a work activity, workers or the workplace).

“The PCBU with the most influence and control over a matter will be in the best position to manage the associated risks. Determining which person or persons have the capacity to influence and control the work depends on the circumstances at the time,” the fact sheet said.

For example, at a housing construction site, subcontractors have some capacity to directly manage the risks associated with their own work and the activities of any worker they engage to carry out the work.

The head contractor will also be able to influence and control the way work is carried out, and how risks are managed, by coordinating and monitoring the work and ensuring risk control measures are implemented.

Further, PCBUs at the top of the contractual chain can build work health and safety into contractual management and take the lead in coordinating work health and safety practices down the chain.

“These PCBUs have important responsibilities in seeking assurance that systems to ensure worker safety are in place along the contractual chain and are functioning effectively,” the fact sheet said.

“For example, although a head contractor may not be present on a housing construction site, they must still ensure the work is being carried out safely.”

The head contractor should check the subcontractor’s work procedures. The principal contractor (for construction projects over $250,000) must obtain any safe work method statements (for high-risk construction work) to ensure risks associated with the proposed work are addressed, and then visit the site as necessary to verify the work is being carried out safely.

“PCBUs, regardless of their place in a contractual chain, have a duty to consult, cooperate and coordinate activities with all other PCBUs who they share a duty with, so far as is reasonably practicable,” the fact sheet said.

“This helps avoid unnecessary duplication of activities, prevent gaps in managing health and safety risks and ensure that everyone’s WHS duties are met.”

Original article published in AIHS

CFMEU ACT has called for the state government to do more to protect workers from silicosis, the deadly lung disease. Zachary Smith, CFMEU ACT Construction Secretary, noted that silicosis is killing construction workers and added that the industry has been too slow to halt exposures.

The ACT Government’s newly announced work health and safety reforms for silica dust are critical to try to control the scourge of silicosis in the construction sector. The ban on uncontrolled dry cutting of silica-containing materials, the introduction of silica awareness training and reforms to air and health monitoring requirements are all critical steps to help combat this problem, according to the CFMEU.

“Silicosis is a horrific disease that destroys the lungs with a shockingly high mortality rate and the widespread presence of silica in construction materials means all workers face potential exposure. Unions have fought hard to combat silica exposure. It’s encouraging that some builders and subcontractors have worked with us but we need the whole industry to act together to reduce the risk posed by this deadly substance,” Smith said.

Smith acknowledged that the measures announced by the ACT Government are important, but noted that they will only work if the industry as a whole lifts its game. Smith called on the state’s construction industry to do more to protect workers, before adding that the CFMEU is currently considering if a complete ban on the use of engineered stone products in construction in the ACT is necessary.

“While some employers are doing the right thing, too many are failing to take silica exposure seriously and are cavalier about exposing workers to deadly harm. In NSW, recent safety data revealed almost one in four engineered stone workers who had been in the industry since 2018 were suffering from silicosis or another dust-related disease, prompting calls for a complete ban on high-silica products in that state,” Smith said.

Image credit: ©stock.adobe.com/au/pinkfloyd YilmazUslu

Original article from NSCA Foundation.