News

Changes to Health and Safety Legislation Prohibiting Protection of Penalties​

VIC passed legislation in September 2021

On 22 September 2021 amendments to the Occupational Health and Safety Act 2004 (Vic) came into force. The amendments are similar to NSW (and soon to follow WA), where the OHS Act now prohibits all insurance and indemnity arrangements covering penalties for health and safety offences under that Act.

The amendments also extend the definitions of “employer” and “employee” under the OHS Act to include labour hire workers and labour hire “host” employers. This means a host employer will have the same health and safety responsibilities for labour hire workers as they do their own staff.

What this means for you

For any alleged breach of the Occupational Health and Safety Act 2004 (Vic), 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 Victoria.

NSW passed legislation in June 2020

On 10 June 2020, the Work Health and Safety Act 2011 (NSW) was amended to prohibit all insurance and indemnity arrangements covering payment of penalties for health and safety offences under the NSW Act. The legislation is broadly drafted and includes insurance, corporate indemnities and discretionary arrangements such as Employsure Protect.

To comply with the new legislation, Employsure Mutual updated the Employsure Protect Product Disclosure Statement to include protection of penalties only where permitted by law. A copy of the new PDS and a summary of changes was distributed to all impacted members with health and safety protection.

What this means for you

For any alleged breach of the Work Health and Safety Act 2011 (NSW), 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 NSW.

Western Australia to follow suit in 2021

In October 2020, the Western Australian Legislative Council passed the Work Health and Safety Bill with similar provisions to prohibit all insurance and indemnity arrangements covering penalties for health and safety offences under the Work Health and Safety Act (WA).

The new provisions of the WA Act will not be operational until the supporting regulations are completed, which is expected to take place next year, in 2021. The Act will also include an industrial manslaughter provision that will carry a maximum penalty of 20 years imprisonment for an individual and a maximum $10 million fine for a body corporate.

The changes will see Western Australia join NSW in increasing workplace penalties and prohibiting protection of those penalties.

We may see other States follow in the future.

What this means for you

Protection in WA is not impacted until such time as the WA Act comes into force in 2021. Once the new legislation is implemented, for any alleged breach of the WA Act, subject to the terms of the Product Disclosure Statement, Employsure Protect will provide protection for legal representation only. This will apply to members with employees working in WA.

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 Annual General Meeting

Employsure Mutual Limited Annual General Meeting 2021

On 26 August 2021, Employsure Mutual held its Annual General Meeting. Results of the meeting can be viewed here.

You can view a recording of the AGM here and a copy of the presentation here.

Tips to Protect your Business

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

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.