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June 2023 Newsletter & Cases Update

NEWS

Welcome to our latest newsletter, where we aim to keep you up to date with all that’s happening in the laws affecting workplaces, and with what we’ve been doing here at KJK Legal.

In this issue, we’ll summarise some of the recent and pending changes affecting workplaces under the Fair Work Act, take a deep dive into some recent cases under Section 18 of the Return to Work Act, and also comment of some interesting legal decisions the Courts have been making so far this year.

Firm News

Many of you will have dealt with our Practice Manager, Amanda Atkins, over the years, and as those of you who attended out 10 year anniversary event will remember, Amanda was away from work at that time as she faced some serious health issues. We’re pleased to have welcomed Amanda back recently, as we enter a new and exciting time for the firm!  News to follow.

Speaking of team members, we’ve expanded our admin support team this year, with the taking on of Fiona Feist in an finance role.  Fiona is a keen Crows supporter, which makes for interesting conversations with the firm’s Collingwood supporting MD!

We’re also pleased to let everyone know the KJK ‘family’ will be further expanding soon, as Suzana Jovanovic is expecting her first child in August, an event we are all excited to share with you.  You’ll spot Suzana and her baby bump in one of the photos to follow!

In terms of events, we have been active in presenting our continuing series of seminars/webinars again this year, with our latest event held in February now able to be viewed on our YouTube channel via this link.  Hear from all our team on a number of topics, including the Fair Work Act changes around leave entitlements, a review of recent Section 18 cases, and a look back at how the most recent changes to workers compensation laws made in 2022 have played out so far.

In recent times, SISA have been conducting a series of industry seminars on issues around self-insurance and its interplay with WHS.  Our Mark Keam sat on a panel of legal providers and representatives from RTWSA (moderated by SISA’s Wayne Potter), who gave their insights into current workers compensation and WHS issues.  In addition, Tracey Kerrigan presented to SISA members on the ins and outs of noise induced hearing loss claims.  You can watch the presentations on the SISA website if you are a member (see www.sisa.net.au), and in due course on the KJK YouTube channel (permission pending).

Speaking of events, our next seminar/webinar will be conducted at Uniting Communities venue on 12 July 2023, so please save the date.  An invitation has been sent out today to those on our mailing list. If you are not sure you are on our mailing list, or want to be added to it, then please email admin@kjklegal.com.au, or give us a call on 7324 7800.

We’re not just all about work though.  It is always great to catch up with our clients and it is becoming a bit of a tradition for us to do so on International Women’s Day.  This year, we were joined by the wonderful ladies from Lawson Risk Management.  The International Women’s Day luncheon was organised by our client Business SA, and took place at the Adelaide Oval.  The panel of speakers delivered a powerful and united front, by sharing stories about the challenges they have faced and achievements they have experienced in overcoming adversity.  The message these inspirational women had for us is to embrace and advocate for gender equity as there is still work to be done.  KJK Legal as advisors on employment issues support gender equity as a workplace initiative.

And finally, change is coming!  Our team is delighted to announce our new look website has officially launched!  Go to https://kjklegal.com.au/.

With better navigation, more information about our services and new team members being introduced, we hope you love it as much as we do.  We would love your feedback too.

Summary of the recent changes to the Fair Work Act 2009 and other industrial instruments

Commentator: Matilda Wise

Over the last 6 months or more, there have been a number of notable changes to the industrial relations and employment law landscape that we consider you need to know about.  Please find below a brief summary of the recent changes and when they have already or will become effective from.

Employers Positive Duty to eliminate sexual harassment – Effective as of November 2022

Employers will now have the positive duty to prevent employees from being sexually harassed or harassed on the grounds of sex, from being exposed to a hostile workplace and from being victimised.

Prohibiting Pay Secrecy Clauses – Effective since December 2022

Employees are now able to share information with others about their pay, employment terms and condition without fear of adverse action being taken against them.

From June 2023 it will also be a civil offence to include a term in an employment contract that attempts to prevent employees from discussing their remuneration or employment conditions with others.

Job Adverts – Effective as of January 2023

All pay rates being advertised must not contravene the Fair Work Act 2009 or any fair work instrument (e.g. a modern award). Although this may seem obvious, this protection has been specified to protect those in our community who are not aware of their workplace rights.

Paid family and domestic leave – Effective since February 2023 for non-small business and August 2023 for small business

All employees, including casual and part-time employees will have access to 10 days of paid family and/or domestic violence leave within any 12-month period by August 2023.  Prior to this change, employees were only able to access 5 days of unpaid family and domestic violence leave in a 12-month period.  Employers must ensure that when this leave is taken it is not recorded on the employee’s payslip for privacy reasons.

Prohibiting Sexual Harassment in the workplace– Effective as of March 2023

There are now strict prohibitions against engaging in any kind of sexual harassment in the workplace and an application can be made to the Fair Work Commission to investigate and prosecute any instances of this kind of conduct from March onwards.

Changes to Flexible Work Arrangement Requests – Effective as of June 2023

The number of eligible employees that can request flexible work arrangements has now been expanded to include those who are pregnant, caring for a family member over 55 years, or experiencing domestic violence.

Employers will also need to be able to show they have a very strong business case for refusing a request for flexible work arrangements. The Fair Work Commission will now have the power to deal with disputes over Flexible Work Arrangements.

Enterprise agreements and enterprise bargaining – Effective as of June 2023

A number of changes have been made to the bargaining framework to make it more efficient and attractive for employees and employers.

The multi-employer bargaining stream has been renamed the Co-Operative Bargaining stream and has now been made available to all businesses.

The Act has also been reworked to remove unnecessary limitations on common interests’ on employers entering into single interest employer agreements.  However, small business employers (less than 20 employees) cannot be compelled to enter into a Single Interest Bargaining Stream, but they can volunteer to join the bargaining if they want.

Small claims process – Effective as of July 2023

The monetary cap for recovering unpaid entitlements via the small claims process has now been increased from $20,000 to $100,000.  This change will make this process more readily available to a greater number of workers.

Fixed term contracts – Effective as of December 2023

Starting December 2023, it will be an offence for an employer to enter into a fixed term contract with an employee that:

However, there will be a number of exceptions to this rule including if the employee has a skill that the employer does not have or needs, or if the contract is part of a training arrangement.

For more in depth summary of these recent changes, join us on 12 July 2023 for our Winter Seminar/Webinar where Neville John and Matilda Wise will be discussing everything you need to know.

A deep dive into recent Section 18 cases

Commentator: Mark Keam

For employers, the obligation to provide ‘suitable employment’ to a work injured employee can transcend the employee’s compensation entitlement period under the Return to Work Act (the Act), and also impact on their employment arrangements.  In that case, all employers need to be mindful of complying with their obligations under section 18 of the Act.  There have been three decisions of note made by the South Australian Employment Tribunal in this area in recent times:

Giehr’s case

Ms Giehr was employed as a Personal Care Attendant at the Strathalbyn and District Health Service and employed within the Barossa Hills Fleurieu Local Health Network.

A succession of injuries sustained by Ms Giehr in the course of her employment meant she could only perform modified duties on an ongoing basis.  The scope of her modified duties was quite restricted, and at one point in time it was clear the need for other employees of the organisation to effectively cover for her was creating a risk to those other employees, such that the applicable union was called in support of other employees.

The evidence in Ms Giehr’s case was that work as a Personal Care Attendant was most likely going to create a risk for her in terms of further injury, a risk to other staff, and also to residents.  Therefore, alternative paths were looked at, including work as a Leisure and Lifestyle Co-ordinator and then administrative work of a largely receptionist nature.  The employer supported work trials for the worker, and she underwent further training.  Ultimately however, she could not perform more than about one third of any of the expected roles that were provided and particularly without supervision.

In seeking suitable employment as a Leisure and Lifestyle Co-ordinator, the worker conceded there were restrictions on what she could perform in that regard, and that the role was not actually available at the time she was seeking suitable employment (if being predominantly a role created during the Covid-19 pandemic).  She asserted she was fit to undertake administrative work, but did concede she lacked the overall training and experience to undertake the position.  Nonetheless, she identified both roles as being suitable.

In giving consideration to Ms Giehr’s application, Deputy President Gilchrist confirmed that assessing what might be suitable employment is an

“….evaluative judgment that takes into account a range of factors.  These factors include:

What is the extent of the worker’s incapacity for work?

Does the worker require reconditioning or retraining to undertake the identified employment and if so, for how long will the reconditioning or retraining take?

If retraining is required, is it on the job training or training that must be conducted away from the job and if so, is it internal or external and at what cost?

Has the worker demonstrated that he or she is really ready, willing, and able to undertake the retraining and how likely is it that it will succeed?

What is the size of the employer?

What are the implications for the employer if the application succeeds?What are the implications for the worker’s work colleagues and those that the employer serves if the application succeeds?”

Deputy President Gilchrist identified the extremes in the nature of employers (from the very small to the very large) and the expectations on them in helping a worker to be retrained, be subject to necessary supervision, be afforded the opportunity to come back to work in a supernumerary capacity and so on.  In effect, he acknowledged the larger the employer, the less difficult it is to address and deal with these issues but, even then, in a situation of a large employer it may get to the point where the expectations on an employer go past being reasonable.

It is noteworthy in this case, that while the employer was a putatively large one (under the umbrella of the Department of Health and Wellbeing) the actual health unit where the worker was seeking suitable employment was small, had a limited budget and a low head count, such that the ability of others to be on tap to assist the worker was minimal.  The worker’s request for suitable employment was declined.

Morphett’s case

Deputy President Magistrate Lieschke was asked to consider two broad issues in this case.  The first was an application for extended benefits payable to a government employee, who had been injured in the course of his employment and whose usual entitlement period for compensation benefits had expired.  Separately, the employee concerned was pursuing an application for suitable employment.

Dealing briefly with the first of those issues, it is noted the entitlement to extended benefits under the applicable enterprise agreement was available to the worker if he showed he was injured in a dangerous situation and dangerous employment.  He had been injured by a tree that fell on him while he was cutting it down.  System failures in the way in which the job was organised made it even more hazardous, and there was no significant surprise the worker succeeded in establishing he was involved in a dangerous occupational activity.

The main issues arising in respect of the Section 18 aspect of the matter surrounded the fact the worker at the time of his injury was on a fixed term contract, in which work was not then available on an ongoing basis.  Part of the main rationale for his employer declining to provide him with suitable employment was the fact they argued the obligation to provide such suitable employment only existed for the life of the contract (even if the life of that contract might have notionally been extended by periods of total incapacity that the worker experienced post the injury date).

The worker was certified as being permanently unfit for his pre-injury role, although he could perform a substantial number of the duties of the role, or indeed of a similar but subtly different role.  One of the roles was of a much more temporary nature than the other.

In dismissing the employer’s argument that the temporary nature of the contract of employment similarly limited the extent of the Section 18 obligation, Deputy President Magistrate Lieschke not unreasonably made the point that if the employer’s argument was correct then it would have quite capricious results.  Consider the position of an employee on a very short term contract, or indeed an employee subject to only casual employment, where that employment might only be from day to day.

Deputy President Magistrate Lieschke considered the provisions of Section 18 were also applicable in circumstances where a consideration of employment contracts might involve parties who were no longer in an employment relationship at all.  Deputy President Magistrate Lieschke noted the definition of a worker in Section 4 of the Act includes a ‘former worker’ and reference is also made to a ‘former employer’.  In other words, whether there is in place a current contract of employment at the time Section 18 rights are being litigated is not determinative.

What is also significant in this case is that Deputy President Magistrate Lieschke went on to further conceptualise Section 18 as not only imposing an obligation on an employer to create a role (more on this later) but also potentially creating a new employment situation altogether.

The case of Longyear Australia Pty Ltd v Workers Rehabilitation and Compensation Corporation [1995] SASC 4951 has long been quoted by members of the South Australian Employment Tribunal in various cases, to the effect that obligations in different ways under legislation from time to time might create an obligation of an employer to create a new role for an employee.  In referencing back to Longyear’s case, Deputy President Magistrate Lieschke in this case stated:

“….that an employer may have to create a new position, on a temporary or even a permanent basis, is consistent with the purpose and text of Section 18”. 

Is Deputy President Magistrate Lieschke opening the door to creating a new type of employment, where not only might an employer have to create a role that no longer existed previously, but in taking on board the need for an employee’s rights to be protected by being able to enforce an expectation of being provided with suitable employment, some form of new and permanent employment (or for so long as incapacity for work exists) might be imposed on an employer, even where the employee was previously a casual or contract employee?

In the case at hand, the fact the employer did not have a current vacancy in the role identified by the worker was not held to be determinative, especially where the evidence suggested there was a normal level of turnover of staff in any event.

Deputy President Magistrate Lieschke also found that although the role identified normally carried with it a selection process in determining who might be provided with the employment concerned, he felt this aspect did not trump the statutory obligation primarily existing under Section 18 to provide suitable employment.  In this regard, Deputy President Magistrate Lieschke has taken a view somewhat different to some of the other members of the South Australian Employment Tribunal and you can expect this aspect of the matter will therefore require some degree of higher level judicial determination.

There were many other issues in the case identified on the evidence as to what needed to be considered in terms of providing suitable employment to the worker and whether that obligation should be enforced on the employer, including issues around interpersonal relationships, the worker’s safety or otherwise in performing the job identified and other matters.  Again, we go back to Walmsley’s case to see how far and wide an employer’s enquiry into elements of what might constitute suitable employment needs to go.

In late breaking news, the decision of Deputy President Magistrate Lieschke was appealed by the employer to the Full Bench of the SAET [2023] SAET 39.  While the appeal was unsuccessful, the Tribunal made some significant comments, including that:

Reimers case

Again, and there is a trend here, it was a government department that was resisting a request for suitable employment.

Close followers of Tribunal decisions will be well familiar with Ms Reimers’ case, as there have now been four separate judgments on the matter.

Ms Reimers had an unusual compensable injury, which meant that exposure to airborne particles of certain substances would cause her significant problems.  She effectively had to avoid strong smelling substances, particularly where they might have been recently “sprayed”.

The nature of the worker’s problem clearly created a difficulty insofar as she was ordinarily employed in a large workplace, where there were hundreds of people going about their daily activities, with many different substances being present in the workplace, either through items being used in a day to day sense, or because of the fact that people coming on to the employer’s premises from outside and might not be aware of the fact of the worker’s predilection to reacting adversely to certain things (e.g. strong perfume).

In essence, she was employed in a school, which by and large might be considered to be a large and generally uncontrollable workplace.

The worker identified two various forms of what she described as suitable employment.  One was as a School Service Officer, which has a generally accepted understanding of what is required of the role.  Her request for suitable employment also as a generality identified “other administrative type roles”.

The employer resisted the worker’s request for suitable employment, asserting it was basically impractical to be required to provide the duties concerned, involving the following as certified by the worker’s treating medical practitioner:

  1. That suitable employment is located at a primary school where the worker could see one to five students in a separate room with adequate ventilation and an industry standard air purifier;
  2. Staff and students should be advised not to wear perfumes or strong smelling cosmetics or hair spray;
  3. Only non-scented antiseptic wipes or hand sanitiser to be used in that room.

The two separate roles, as identified above, were suggested to constitute suitable employment.

While very much a case depended on its own facts, and with what might have otherwise been considered to be somewhat unusual circumstances and requirements, the South Australian Employment Tribunal still found the employer was capable of providing the suitable employment as identified.

In looking at the various restrictions that were proposed in the medical certification provided in support of the request for suitable employment, Deputy President Judge Rossi delved quite deeply into the evidence to assess to what extent some of the supposed objections to what was being asked of were more knee jerk than anything.  He was critical of the evidence led by the employer in the case, as not properly addressing the issues concerned, utilising not much more than anecdotal information, and putting forward as a witness to all issues in the case someone who was quite clearly not across all of the facts and circumstances that might apply.

The evidence, as was presented, also failed to touch upon many of the roadmap issues that Deputy President Judge Hannon talked about in Walmsley’s case, and particular reference was made to the lack of evidence put forward as to financial/budgetary considerations, which Deputy President Judge Rossi thought would have been likely to have been presented by someone far more senior than the witness who eventually gave evidence.

Deputy President Judge Rossi also referred back to Longyear’s case again, to effectively justify the obligation on an employer to create a position where one might not otherwise exist and especially in the case of a larger employer. An order for suitable employment was made.

Conclusion

Taking the recent line of cases as forming some joint and overarching propositions, it might be said that Section 18 cases:

  1. Are all about the incapacity for work, and whether there is an incapacity for work at the time suitable employment is to be addressed at trial;
  2. It is all about the availability of duties and not necessarily of a job at the particular time, although the duties must still constitute some form of employment, and not an ad hoc aggregation of tasks;
  3. It is all about the duties to be performed, the worker’s ability to do them, but also equally the impact of the worker’s restrictions on others in the workplace, including fellow employees and third parties;
  4. It is still all about the possible obligation to provide a role or potential combination of roles;
  5. Work health and safety considerations must still always apply, but the Tribunal is seemingly becoming more responsive to the expectation that employers will have to create “work arounds” in some circumstances;
  6. It can still all be about the potential effect on an employer in terms of dollars but equally it must be the case that persuasive evidence can be presented in this regard;
  7. It is all about the sustainability of ongoing employment for injured workers, whether old, new, created or otherwise, and where the primary emphasis is now being placed on the socially responsible need for employers to secure satisfactory ongoing employment for their injured employees (or even past employees);
  8. If the past employment featured short term contracts, e.g. seasonal work only, then an order for suitable employment might also reflect that situation where that is the only reasonably practicable suitable employment available;
  9. And finally, size does matter, in employer terms.

While there is a pending review underway of section 18 and how it is working (where the unions perceive it as failing workers’ interests), the cases above suggest the provision does indeed have teeth.

A selection of other workplace cases of note

Paterakis v RTWSA [2023] SAET 7

Topic: Use of Tribunal resources – Application for Review (“AFR”) disproportionate to dispute
Commentator: Tracey Kerrigan

President Justice Dolphin has recently criticised a worker and his solicitor for maintaining an AFR, which in his view was a ‘disproportionate use of this Tribunal’s valuable resources, compared to the amount of compensation at stake’. It is often frustrating to compensating authorities and their solicitors when workers insist on every medical account submitted being formally determined and, if rejected, being grounds for the filing of an AFR.

In this case the worker’s claim for a back injury had been rejected outright and was in dispute.  After the rejection, he incurred a medical account of $90.  He sought a decision on the account which seemed pointless, as presumably once the claim was rejected then all further medical accounts were in essence rejected.  But nevertheless, the worker required a decision on the account, which was also rejected, and his solicitor then filed an AFR.

The disputes were referred to President Justice Dolphin who required the worker’s solicitor to make submissions as to why the AFR in respect to the medical account should remain on foot.  President Justice Dolphin was particularly critical of the submissions made and the failure to address his main concern, namely that the Application was an abuse of process.  The judge was concerned that allowing a multiplicity of medical expense applications on work injury claims already in dispute, with the associated costs liabilities, would bring the Tribunal into disrepute. President Justice Dolphin dismissed the AFR as an abuse of process and noted the worker could still recover the medical expense as part of his primary dispute.

Key Takeaway

If you have rejected a claim for a work injury and the worker has filed an Application for Review, and then continues to submit medical accounts for determination, it is not open to the worker to file ongoing Applications.  Advise the worker (and his representatives) that any accounts incurred post the rejection can be included in the original dispute by way of an application to enlarge the scope of the proceedings. The SAET is looking to reduce a multiplicity of applications clogging up the list and efforts should be made to prevent this happening.  If a worker is insisting on separate determinations on small claims, then invite them/their representatives to agree to enlarge the scope of proceedings, and if they refuse then consider putting them on notice as to costs.

Woolworths Group Limited v Jackermis [2023] SASCA 31

Topic: Construction of section 56(6) of the RTW Act
Commentator: Suzana Jovanovic

Many of you will be familiar with the facts of this case.  In summary, the worker injured her right shoulder in 2016 and suffered consequential injuries of mastication and deglutition.  Her injuries, including scarring, were assessed at 17% WPI and gave rise to an economic loss lump sum payment of $76,762.

In July 2017, the worker sustained a further injury, this time to her left shoulder which was assessed at 13% WPI.  An economic loss lump sum payment based on a 2017 injury, equated to $45,188.72.

When assessing her lump sum compensation under section 56(6), the Compensating Authority determined that the 2017 injury was a “new work injury” for the purposes of section 56(6)(b)(ii) and that the prior payment of $76,762 was to be deducted from $45,188.72.  In turn, this gave rise to a nil lump sum entitlement.

The primary issue on appeal was what is meant by a “new work injury” under section 56(6)(b)(ii)?

The Trial judge held that “a new work injury” refers to any new work injury in accordance with its plain language, which warranted a deduction of the previous economic loss lump sum payment.  The Full Bench disagreed and interpreted “a new work injury” as a “further work injury that occurs subsequently in time to an earlier work injury that gives rise to an entitlement to a lump sum under section 56 where a portion of the impairment is due to a previous injury which gave rise to an entitlement under the section”.

The Court of Appeal held that a “new work injury” means any subsequent work injury.  It is therefore not limited to cases where the impairment from the later injury is also partly due to an earlier injury.  As a result, the worker’s 2017 left shoulder injury was held to be a “new work injury” within the meaning of section 56(6)(b)(ii), and therefore, a deduction of a prior economic loss lump sum payment was to be made.

Key Takeaway

The decision of the Court of Appeal confirms that a deduction of a previous lump sum payment is to occur in the event of a new injury, irrespective of its relationship to any prior injury.

Heir v Patel & Patel [2023] SAET 21

Topic: Underpayment of wages
Commentator: Matilda Wise

Underpayment of wages, or wage theft as it is commonly known, is a serious issue in Australia today.  In the last few years there has been increased publicity around wage theft as large organisations have been forced to concede they have underpaid their workers.

Although in the media wage theft is usually sensationalised as calculated and greedy, in everyday business underpayment of wages normally occurs unintentionally as a result of honest administrative errors or misinterpretation or misunderstanding of industrial instruments.

Wage theft is a contravention of the employer obligations under the Fair Work Act 2009 and the Fair Work Regulations 2009.  Some common examples of wage theft under this legislation include breaches of modern award wages or enterprise agreements, infringement of national minimum wage orders, incorrect wage payment methods such as cash-in-hand, and frequency and inappropriate record keeping and payslip preparation.

The South Australian Employment Tribunal (sitting as a Court) has the power to hear claims for underpayment of wages under both South Australian and Federal awards, contracts, or enterprise agreements.  The Tribunal is able to penalise both companies and/or individuals for contraventions of their obligations.  The maximum penalty per infringement is $12,600 for individual contraventions and $63,000 for company contraventions. The recent case of Heir heard in the South Australian Employment Court (“the court”) is an extreme example of wage theft, but also a good reminder for employers they can be found personally liable for underpaying employee wages or denying them their entitlements.

Ms Heir (“the worker”) was a qualified cook working at an Indian restaurant owned by Fusion India Pty Ltd (“the employer”) between May 2013 and September 2015.  As an Indian citizen, the worker obtained a 2 year temporary skilled working visa through a sponsorship by the employer. The worker brought proceedings in the court for contraventions of the Fair Work Act 2009 against both her employer and its 2 directors.  As the employer entity was in administration, the worker‘s application against it was stayed.  However, she could still bring action against the directors of the company, as they were actively involved in the contraventions.

The worker presented evidence to the court that during her employment with the employer she was forced to consistently work 60 plus hours a week in the kitchen.  The Court heard that besides her first 4 weeks of pay, the worker was not paid any wages by the employer for 2 years.  The total amount owed to the worker after 2 years was $194,270, including unpaid wages, overtime, annual leave, and superannuation.

The worker also submitted that when the employer did make payments to her, they would insist she withdraw the money out in cash and give it back to them.  The purpose of this was so the employer could protect themselves from potential penalty as a result of an audit, and create a false sense of regularity about the worker’s employment.  The worker submitted she endured these conditions out of fear her employer would cancel her visa sponsorship and her family would be deported.

The court found one director had been involved in the contravention of their obligation to pay wages, overtime, penalty rates, meal break and meal allowances, personal leave, annual leave, superannuation contributions, and did not provide accurate payslips and maintain accurate employee records.  The second director was found to have contravened the entitlement to proper meal breaks.

The two directors are to be penalised for these contraventions by way of pecuniary penalties, with this decision to be handed down in the next few weeks.  The worker also plans to bring a separate civil claim against the directors for her unpaid wages and superannuation.

Key Takeaway

This case is an excellent reminder for employers to reduce their risk of wage theft claims (and adverse publicity as possible scumbags, thieves etc.) by staying up to date with industry awards and entitlements, correcting mistakes as soon as they are noticed, accurately maintaining records of employee hours and wages, performing regular internal audits to ensure compliance, and being honest.

Goldenway Amusements Pty Ltd & Ors v SafeWork SA [2023] SAET 34

Topic: Application for stay of Improvement and Prohibition Notices
Commentator: Matilda Wise

The recent South Australian Employment Tribunal (“SAET”) case Goldenway Amusements Pty Ltd & Ors v SafeWork SA [2023] SAET 34 (10 May 2023) is an excellent example of how the Court will have consideration for the purpose, subject matter and scope of the Work Health and Safety Act 2012 (SA) (“WHS Act”) before anything else when making their decisions.

Goldenway Amusements Pty Ltd and a number of other associated entities (“the Applicant”) own and operate amusement rides that they transport around Australia in order to conduct their business at a number of different events throughout the year, including the Royal Adelaide Show.

In October 2017, three of the Applicants’ amusement rides were issued with Improvement Notices and in August 2022 one of their rides was issued a Prohibition Notice by SafeWorkSA.

The issue for SafeWorkSA was that the restraint devices used when these amusement rides are in motion allegedly did not provide a sufficient level of safety for the riders to meet the applicable Australian Standard.  Those rides, subject to the Improvement Notices, were ordered to have a level 5 restraint type installed.  The ride subject to the Prohibition Notice was required to have a level 4 restraint type installed.

The Applicant argued all of their rides were fitted with a primary locking device which is adjustable to fit the riders, and also have a secondary locking device that operates independently of the primary lock and will prevent the restraint from releasing.  They considered this to be sufficient to meet their restraint requirements and did not recall this ever being disputed in any other State.

SafeWorkSA argued the secondary locking device was not adjustable and therefore was automatically set to accommodate someone of the maximum rider size, which is 196cm tall.  They considered the secondary locking device would do very little to protect the riders who are less than 196cm if the primary restraint failed.

The notices issued to the Applicant are due to be externally reviewed by the SAET at a trial later this year, however, a date for this has not yet been set.

This year, the Applicant has applied to the SAET to have their 4 notices stayed in light of the pending trial date so they can bring their rides to the 2023 Royal Adelaide Show.

As a part of this Application the Judge of the SAET heard argument the Applicant will be prejudiced if their stay is not granted, because they will forego significant expected revenue if unable to attend the 2023 Royal Adelaide Show.  Similarly, the Judge heard argument SafeWorkSA would be prejudiced by the granting of this stay, as their efforts to protect the safety of the public, by way of the notices, would be quashed.

The Judge found the safety of the public was more important and better aligned with the object of the Work Health and Safety Act than the potential financial consequences for the Applicant. Therefore, the Applicant’s application was rejected, and they will need to wait until they have an outcome in their upcoming court proceedings before they can operate their rides in South Australia again.

As always, should you have any questions, queries, feedback or comment on anything we’ve discussed above, or advice on any workplace legal needs, then please don’t hesitate to reach out to one of us.

If you wish to undertake further reading in relation to any of the decisions discussed, they can be found at www.austlii.edu.au.

Mark Keam – Editor