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WHS Obligations – Improvement and Prohibition Notices

Improvement Notices

Under the Work Health and Safety Act 2011 (NSW), safety inspectors have a number of powerful tools at their disposal to ensure that employers, workers, and other persons comply with their work health and safety obligations.

A commonly used tool is an “improvement notice”, which is issued to an employer if a safety inspector has a reasonable belief that the employer is contravening or has contravened work health and safety legislation and is likely to do so again.

An improvement notice requires the employer to remedy the contravention or prevent a likely contravention from occurring again, and must include: [...]  READ MORE →

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UPDATE – The New Duty to Act on Psychosocial Risks for NSW Employers

Although employers have always had a duty to eliminate or mitigate health and safety risks in the workplace under work health and safety laws, there was a tendency to treat bullying and other  psychological risks differently to physical risks.

To combat this tendency, in September 2022 the NSW Parliament passed the Work Health and Safety Amendment Regulation 2022 NSW (the Regulation). The Regulation amends and reforms the Work Health and Safety Act 2011 NSW and makes explicit that ‘persons conducting a business or undertaking’ (PCBUs) and employers have a duty to eliminate or minimise psychosocial risks and physical risks in the workplace in the same way. [...]  READ MORE →

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New – Proposed Changes to Single Touch Payroll including Jail Terms

The Federal Government has recently proposed legislation which formalises new payroll reporting obligations and which imposes greater penalties on employers and other individuals who refuse to remit PAYG withholding tax and superannuation contributions.

By way of recap:

  • in 2016 legislation was passed introducing Single Touch Payroll (STP) reporting
  • STP reporting requires employers to report to the ATO payments such as salaries and wages, PAYG withholding and super information at the same time that wages are paid to employees
  • the legislation requires that all employers with 20 or more employees comply with STP reporting obligations from 1 July 2018
  • for initial purposes, the calculation of the number of employees is to be undertaken on 1 April 2018
    •  [...]  READ MORE →

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    Unfair Dismissal – Are Employers on their Own?

    A recent decision of the Fair Work Commission may force employers to fend for themselves in proceedings before the Commission, such as unfair dismissal, by denying them the right to even have legal assistance in the background.

    In Stephen Fitzgerald v Woolworths Limited:

    • section 596 of the Fair Work Act requires a party involved in a matter before the Fair Work Commission to seek leave to be represented by a lawyer or paid agent
    • the employer (a national supermarket chain with a dedicated HR department) wished to be represented by a lawyer at a contested unfair dismissal hearing
    • this request was refused, however, the Fair Work Commission stated this did not prevent the employer from obtaining background or shadow assistance from its lawyers prior to the hearing
    • on appeal, however, it was held that the concept of legal representation extends beyond mere advocacy at the final hearing and into the realm of advice and/or the preparation of documents beforehand

    Employers must be conscious that the right to legal representation in the Fair Work Commission is not automatic or guaranteed and can potentially exclude an employer from having the benefit of pre-hearing legal assistance.

    Thus, all employers are strongly encouraged to seek early and proper advice from an employment lawyer as to: [...]  READ MORE →