This is why you need to comply with workplace legislation


Complying with workplace legislation is no joke, and Australian regulations are set to tighten as worldwide attention is drawn to the consequences of ignoring work safety.

The pressure comes after alleged disregard of workplace legislation caused Australian employees of BHP Billiton to be among 26 people to be prosecuted following their roles in the catastrophic Samarco Dam collapse in Brazil a year ago.

Twenty one of them face manslaughter charges after hundreds of kilometres of the Doce river was polluted with toxic mining waste after the dam burst, leaving 19 people dead and hundreds more homeless.

Brazilian prosecutors claim that employees of BHP Billiton and Vale who jointly owned the dam were aware of weaknesses in the dam but put profit before safety and were, therefore, culpable.

Five of the employees are based in Australia, and two currently still work for BHP Billiton. If found guilty, the employees facing manslaughter charges – who include 16 Brazilians, two Americans, a South African, an Australian and a French citizen – could face sentences of up to 54 years. Other individuals and the companies themselves face hefty fines if found guilty.

The tragedy in Brazil, and the unfolding legal battle around work safety accountability, is a shot across the bows for anyone working in HR and senior management, even in organisations working in less hazardous fields.

Only recently, Australia’s Fair Work Ombudsman, Natalie James, warned HR professionals that employees can no longer shelter from liability if they are involved in instances of disregarding workplace legislation, no matter how far down the management chain of command.

The Fair Work Act states that any person who is “involved” in a contravention of the Act will be liable for a fine of up to $10,800 per breach. This is in addition to any sanction imposed upon the employer.

In 2015, there was an increase in the number of cases where HR managers were found personally liable for the part they played in a breach of the Fair Work Act by their employer, according to Cornwall Stodart lawyers.

In a case earlier this year, an employee brought a claim against his employer ACI Operations and the Human Resources manager, Nicola Powell. The employee claimed that the notice of provisions in the National Employment Standards (NES) and the Fair Work Act had been breached upon termination of his employment. Instead of receiving five weeks payment in lieu of notice, he had only received 28 days. 

The court ruled that Ms Powell knew about the NES, and, in failing to provide the correct notice to the employee, was personally liable for a contravention. She was fined a little more than $1000.

While the scale of the issue is small in relation to the BHP Billiton case, the principal is the same.

James told human resources managers earlier this month that non-compliance with federal workplace legislation had become a “cultural norm” in some parts of the labour market.

“If any of you have ever had trouble persuading your board or your CEO of the merits of your advice, I’m here to give you the new pitch – compliance with workplace laws is not simply a question of tick and flick,” she says.

“Those involved in the decision making around the strategy for and compliance with workplace laws are on notice. You can find yourselves personally liable for the actions or inactions you help the company take.”

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This is why you need to comply with workplace legislation


Complying with workplace legislation is no joke, and Australian regulations are set to tighten as worldwide attention is drawn to the consequences of ignoring work safety.

The pressure comes after alleged disregard of workplace legislation caused Australian employees of BHP Billiton to be among 26 people to be prosecuted following their roles in the catastrophic Samarco Dam collapse in Brazil a year ago.

Twenty one of them face manslaughter charges after hundreds of kilometres of the Doce river was polluted with toxic mining waste after the dam burst, leaving 19 people dead and hundreds more homeless.

Brazilian prosecutors claim that employees of BHP Billiton and Vale who jointly owned the dam were aware of weaknesses in the dam but put profit before safety and were, therefore, culpable.

Five of the employees are based in Australia, and two currently still work for BHP Billiton. If found guilty, the employees facing manslaughter charges – who include 16 Brazilians, two Americans, a South African, an Australian and a French citizen – could face sentences of up to 54 years. Other individuals and the companies themselves face hefty fines if found guilty.

The tragedy in Brazil, and the unfolding legal battle around work safety accountability, is a shot across the bows for anyone working in HR and senior management, even in organisations working in less hazardous fields.

Only recently, Australia’s Fair Work Ombudsman, Natalie James, warned HR professionals that employees can no longer shelter from liability if they are involved in instances of disregarding workplace legislation, no matter how far down the management chain of command.

The Fair Work Act states that any person who is “involved” in a contravention of the Act will be liable for a fine of up to $10,800 per breach. This is in addition to any sanction imposed upon the employer.

In 2015, there was an increase in the number of cases where HR managers were found personally liable for the part they played in a breach of the Fair Work Act by their employer, according to Cornwall Stodart lawyers.

In a case earlier this year, an employee brought a claim against his employer ACI Operations and the Human Resources manager, Nicola Powell. The employee claimed that the notice of provisions in the National Employment Standards (NES) and the Fair Work Act had been breached upon termination of his employment. Instead of receiving five weeks payment in lieu of notice, he had only received 28 days. 

The court ruled that Ms Powell knew about the NES, and, in failing to provide the correct notice to the employee, was personally liable for a contravention. She was fined a little more than $1000.

While the scale of the issue is small in relation to the BHP Billiton case, the principal is the same.

James told human resources managers earlier this month that non-compliance with federal workplace legislation had become a “cultural norm” in some parts of the labour market.

“If any of you have ever had trouble persuading your board or your CEO of the merits of your advice, I’m here to give you the new pitch – compliance with workplace laws is not simply a question of tick and flick,” she says.

“Those involved in the decision making around the strategy for and compliance with workplace laws are on notice. You can find yourselves personally liable for the actions or inactions you help the company take.”

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