Changes to WHS laws announced by Safe Work Australia

The latest review found that whilst the WHS laws were achieving their intended purpose, there was still more that should be done to assist uphold the duties associated with psychological health. Furthermore, the intent is to ensure that monetary penalties for failing to uphold these duties act as a deterrent when breaches can be substantiated.

Each State and Territory are responsible for updating their model WHS laws respectively. Some have swiftly implemented changes to WHS legislations and or Codes of Practice. A person conducting a business or undertaking one should consider reviewing their WHS practices and how they manage psychosocial risks in the workplace.

Key amendments to the WHS Act and Regulations include:

• the model WHS Regulations to deal with psychosocial hazards and risks (full copy) including definition and obligation to manage.
• training of their choice for the health and safety representative, including a training course of up to 5 days initially and a 1 day’s refresher course each year.
• removal of the 24-hour notice period for suspected contravention for entry permit holders.
• the addition of gross negligence as an alternative fault element.
• prohibition on insurance or indemnity for WHS penalties.
• the ability for any inspector to issue a notice for documentation and or information within 30 days of inspection.

A summary of the key amendments implemented by each State and Territory can be accessed here.

Recommended next steps for people conducting a business or undertaking one:

• Review the amendments to the WHS legislations in your State or Territory and update your policies and procedure accordingly. Update your health and safety representative and people leaders on the changes.
• Monitor the WHS legislations for any future updates.
• Consider providing training on the management of psychosocial hazards and risks.
• Review your current insurance or indemnity that covers WHS penalties.

Employee Relations case – Not achieving KPIs did not justify termination

A recent appeal for an unfair dismissal remedy whereby the applicant was dismissed for alleged failure to meet KPIs and misconduct, was reinstated in their role, a Full Bench of the Commission concluded that there was no valid reason for dismissal and that the dismissal was unfair. Whilst not common practice, the Full Bench of the Commission decided for an order of reinstatement including back-pay and continuity of service ordered in this particular case.

The employer’s reasons for termination were due to his poor performance in failing to meet three KPIs which were –

1. Start time for a job and finish time;
2. Number of batteries provided under warranty by the roadside patrol officer; and
3. Number of batteries sold by the roadside patrol officer.

Deputy President Boyce made the observation that KPIs “are not set out or otherwise explained in writing. In other words, there is no document (in evidence) that sets out or explains each of the KPIs, how each KPI has been derived, what definitions are associated with the KPIs, how the KPIs are assessed, what variables are accepted as impacting upon KPIs, or how such variables are dealt with in terms ultimate KPI outcomes”.

It was also discovered that the KPIs for batteries sold was not met by the roadside patrol officer’s peers and was not achieved overall for the region. This also extends to the average working time from when a job starts and is finished. The roadside patrol officer’s peers weren’t also achieving that KPI.    In turn it rendered those two KPIs unreasonable and an inappropriate measure. Furthermore, the employer failed to establish that it had an objective basis regarding the battery warranty period and the lack of evidence to demonstrate that the roadside patrol officer replaced batteries inappropriately formed the basis that he was replacing batteries under warranty when they should have been so replaced.

Additionally, Deputy President Boyce also noted the performance improvement process was “neither a well-structured, nor assistive one” and that “no training or direction was given” to the technician. This is an important point since set KPIs, failure to meet these KPIs and notifying the employee of the likely outcome for failing to meet these KPIs couples with an ample opportunity to improve would have been a defensible position, however this case highlights the importance of KPIs when it comes to termination of employment.

Which brings us to our recommendations –

1. Ensure that KPIs are formalised and documented
2. Ensure that KPIs are achievable and reasonable
3. Factor whether variables should apply to KPIs
4. Help the employee improve by implementing regular meetings and or training sessions
5. Be clear and specific about what is expected from them. Include as much information as possible to avoid doubt

Annual review of HR practices

With the end of the financial year in our rear-view mirror, this is a timely reminder to review existing HR practices such as:

1. Review and update policies and procedures
2. Review and pass on the new minimum wages and superannuation amounts
3. Review and set new KPIs
4. Formalise a training plan and budget
5. Review compliance training as example bullying & harassment
6. Prepare for changes from the Australian Government such as Family and Domestic Violence Leave

Ask an Expert

We promoted an employee to a role, but they aren’t performing, can we return them to their former position?

It would be best to consult with the employee and establish their preparedness to return to their former role. Typically, if an employee is not performing in a role there might be an underlying reason to it, such as a training or skill gap that needs to be addressed. However, in some instances during the consultation with the employee, you might find that they weren’t enjoying the new role and are happy for the opportunity to revert to their former role.

If the above fails, then review the employment contract and or industrial instrument in place for relevant clauses regarding demotion. If no clauses are present, you’ll need to explore performance management including a performance improvement plan to help them uplift their performance to the standard required.

Getting it wrong, could lead to a breach of contract, an unfair dismissal claim if repudiation of contract is exercised and or an adverse action/discrimination claim if the employee has valid grounds for it such as a health issue.

For more information on the above, please contact us on 1300 887 458 and speak with one  of our HR Consultants. If you are interested in learning more about our HR services, including HR Outsourcing, HR Consulting, HR Advisory Services, contact us at enquiries@liquidhr.com.au.