News
Changes to Health and Safety Legislation Prohibiting Protection of Penalties
Over the past two years, the following states across Australia have made amendments to Work Health and Safety Legislation:
- Western Australia – Work Health and Safety Act (amendments effective from 31 March 2022)
- Victoria – Occupational Health and Safety Act 2004 (amendments effective from 22 September 2021)
- New South Wales – Work Health and Safety Act 2011 (amendments effective from 10 June 2020)
The provisions of these acts now prohibit all insurance and indemnity arrangements covering penalties for health and safety offences under state-based legislation. The prohibition includes discretionary arrangements such as Employsure Protect.
We may see other states follow in the future.
What this means for you
For any alleged breach of the above WA, VIC and NSW health and safety acts, subject to the terms of the Product Disclosure Statement, Employsure Protect provides protection for legal representation only. This legislation applies to any members with employees working in these states.
Maximise your protection
As an Employsure Mutual member, it is recommended that you follow the Corrective Action Plan provided following your Work Health and Safety review and utilise our expert Advice Team for any safety-related questions or incidents. This will help to manage safety risks within your business and maximise the likelihood of protection in the event of an investigation or alleged breach of safety legislation by a regulator.
Success Stories: How Employsure Mutual Provides Financial Protection to Cover the Costs of a Claim
Employsure Mutual receives claims from members on a daily basis. Whilst the majority of claims are able to be settled at conciliation, thereby avoiding unnecessary litigation, Employsure Mutual will vigorously defend members where it makes commercial sense to do so.
Below are some examples where Employsure Mutual has provided financial protection to legally defend a claim with extremely successful results for our members.
Hospitality business
Facts
- An employee was hired as a full-time manager for a hospitality business in February 2018.
- In March 2020, the member sought and followed Employsure’s advice about making the employee redundant due to her position no longer being required to be performed by anyone. The employee was made redundant, and her duties were absorbed by another employee.
Claim
The employee lodged an unfair dismissal application in May (2 months after the 21-day time limit from the date of dismissal) after learning her duties had been absorbed by another employee.
Protection
- Employsure Mutual accepted the claim, providing protection to cover the costs of legal representation through Employsure Law.
Outcome
- The case was dismissed because the Applicant was unable to prove there were exceptional circumstances for failing to lodge the claim within the 21-day time period.
Construction business
Facts
- An employee was hired as a full-time administration assistant for a construction business in January 2017.
- In March 2020, the member sought and followed Employsure’s advice about making the employee redundant due to their position no longer being required to be performed by anyone.
- The member followed the correct process recommended by Employsure and ultimately made the employee redundant.
Claim
- The employee lodged an unfair dismissal claim with the WA Industrial Relations Commission.
- Employsure had previously confirmed for the member that they are considered a trading corporation and therefore fall within the jurisdiction of the Fair Work Commission.
Protection
- Employsure Mutual accepted the claim, providing protection to cover the costs of Employsure Law to represent the member.
Outcome
- In defence of the claim, it was argued that the claim should have been made in the Fair Work Commission and the WA Industrial Relations Commission did not have jurisdiction to deal with the matter.
- Employsure Law successfully defended the claim on behalf of the member, and the case was dismissed because the member’s business did not fall under the jurisdiction of the WA Industrial Relations Commission.
Pet grooming business
Facts
- An employee was hired as a full-time pet groomer in October 2018.
- The employee received several disciplinary warnings throughout their employment. Finally, in May 2020 the employee was discovered to be mistreating a client’s pet. The member sought and followed Employsure’s advice, conducted a disciplinary meeting and ultimately dismissed the employee for serious misconduct.
Claim
- The employee lodged an application to the Fair Work Commission for unfair dismissal 22 days following the dismissal (one day outside of the 21-day time limit).
Protection
- Employsure Mutual accepted the claim, providing protection to cover the costs of legal representation through Employsure Law.
Outcome
- The case was dismissed because there were no exceptional circumstances at the time for lodging the claim after the 21-day period.
Employsure Mutual Limited General Meeting
Employsure Mutual Limited General Meeting 2022
On 25 March 2022, Employsure Mutual held a General Meeting. Results of the meeting can be viewed here.
Tips to Protect your Business
- Contact Employsure for advice on any issues relating to your employees or work health and safety concerns
- If you need to re-organise your workplace and, in particular, if this is likely to result in reductions to pay or changes to employment contracts, contact Employsure to obtain advice and guidance on how to address these issues (what to do and say and what not to do and say) and follow the advice as to recommended processes and documentation
- Provide Employsure with accurate and detailed information
- Contact Employsure for advice before making a decision to dismiss an employee or change their employment conditions.
Remember: It is a condition of Employsure Protect that Employsure’s advice is sought and followed in relation to matters that have the potential to result in a claim. Claims arising where advice has not been sought and followed are excluded under Clauses 4 and 6 of Section 2 of the PDS.
Tips to Protect your Business
- Contact Employsure for advice on any issues relating to your employees or work health and safety concerns
- If you need to re-organise your workplace and, in particular, if this is likely to result in reductions to pay or changes to employment contracts, contact Employsure to obtain advice and guidance on how to address these issues (what to do and say and what not to do and say) and follow the advice as to recommended processes and documentation
- Provide Employsure with accurate and detailed information
- Contact Employsure for advice before making a decision to dismiss an employee or change their employment conditions.
Remember: It is a condition of Employsure Protect that Employsure’s advice is sought and followed in relation to matters that have the potential to result in a claim. Claims arising where advice has not been sought and followed are excluded under Clauses 4 and 6 of Section 2 of the PDS.