I strongly disagree with the statement ‘Victoria was wise to not adopt the national work, health and safety laws.’ I believe in the common structure and common approach to regulation. Victoria had several reasons for its non-harmonization claiming that the model bill will diminish the criminal justice and the safety in Victoria (Blewett & Dorrian 2012, p.2755). Victoria talks of these drawbacks but it also recognizes its advantages including ensuring the presumption of innocence, tying the responsibilities of work safety to what is practicable and reasonable, among others. Therefore, as a result of Victoria concentrating more on the disadvantages than the advantages, they failed to adopt the laws, which made them face some contradictions and anomalies.
According to the 2004 passage of Occupational Health and Safety Act and the 2007 Regulations, Victoria emerged as the leading state in national OHS law and policy (Pagura 2013, p.118). In order to set the standard, Worksafe’s combination of consultative carrots, growth of high-quality guidance material to help in realizing best-practice health and safety compliance, and the stick of enforcement, are widely recommended. In turn, the Victoria legislation was employed as the charter for much of the national laws (Adams 2005, p.382). With this, it got the Coalition’s surprise win in 2010. Aside from that, it happened that WorkSafe Victoria was leading in emerging model regulations and the national codes of practice.
Sadly, failure to adopt the new national work, health and safety laws renders these wins no longer the case for Victoria. They eschewed adopting the harmonized laws with the claim of high compliance costs to save the Victorian industry, but the industry still happens to be the loser. Apparently, it has mainly lost out on two key areas: (1) Its adoption of the high-quality OHS guidance has reduced; and (2) it has had confusions around the management of the hazardous chemicals.
Victoria once led in the production of high-quality OHS guidance but failure to take on the new WHS laws has led to its stagnation (Adams 2005, p.383). The OHS documents of the WorkSafe Victoria are its Compliance Codes. They managed to declare eight new compliance codes in 2008 and promised for more to come, but it never materialized since the work was conveyed to mounting the national codes of practice. It was ironical since the workers invested so much time and effort to start the nationally recognized WHS guidance but since the state refused to adopt the laws, the employees lost the value of the efforts. Victoria languishes on Codes of Practice created under OHS Act 1985, a law that got revoked many years ago. Aside from that, most of its Codes of Practice specifically point to the new harmonized laws. Nonetheless, it is not possible to apply the references unless the state adopts the WHS laws.
Aside from the issue of Codes of Practice, Victoria faces challenges in managing the Hazardous Chemicals. According to Chapter 7 of the harmonized WHS Regulations, there are conditions for the oft-misunderstood categories of the hazardous chemicals (Keller, 2009). Being that Victoria maintains separate laws for dealing and storing these chemicals, it has had to update its laws twice in 2011 and in 2012, and later revised its Code of Practice for how to deal with the chemicals. If they had adopted the new harmonized laws then they would not have to undergo all that process in managing the hazardous chemicals.
Unfair dismissal occurs when employees get dismissed from their jobs in an unjust, harsh or unreasonable manner. Walker v Salvation Army (NSW) [2017] FWC 32 is a good example of unfair dismissal recently reported in the media.
In the case Walker v Salvation Army (NSW) [2017] FWC 32 the manager of Salvation Army’s Lidcombe (Sydney) store, Ms. Walker, makes an application of unfair dismissal under the Federal Fair Act 2009 (Cth). Ms. Walker is the plaintiff, while Salvation Army, the defendant. Ms. Walker had worked at the Salvation Army for eleven years and had a good employee record. While she was at work on 23 July 2016, she served a customer who was buying a range of furniture. However, she failed to enter any sale but instead wrote a document showing she had set aside some of the items in the store. When the customer came back to pick up the items, he claimed he had paid a total of $200 for the furniture but there was no recording showing that. The company investigated the issue by reviewing the CCTV footage and discussions between the customer and Ms. Walker. After that, the company felt the customer was right and that the CCTV proved that Ms. Walker had received the pay for the furniture from the customer at that time. According to the CCTV footage, Ms. Walker had more than $50 in her hand when serving the customer on 23 July 2016. However, Ms. Walker denied having received any money from the customer. In turn, the employer terminated her employment alleging theft as a serious misconduct.
Ms. Walker can claim damages according to s382 of the Fair Work Act that requires her to be protected from unfair dismissal since she was an employee who had completed the minimum employment period of six months (Curran 2009, p.362). In addition to that, s385 of the Act provides that an employee is unfairly dismissed if the Fair Work Commission is contented that the person has been dismissed, was dismissed on unjust, harsh and unreasonable circumstances, and the dismissal was not genuine as in the case of Ms. Walker (Constant 2012,p.41).
According to the Senior Deputy President (SDP) Hamberger, the CCTV evidence showed that Ms. Walker had $50 note in her hand but it did not prove that it was from the customer. He, therefore, concluded that the customer did not give any money to Ms. Walker. As a consequence, he held that Ms. Walker did not engage in any serious misconduct. It was clear that Salvation Army had dismissed Ms. Walker unfairly according to s385(b) of the Act (Fair Work Act, 2009). This was so, because, their internal investigation of the CCTV footage lacked rigor. Ms. Walker was, therefore, awarded the maximum six months’ pay as compensation for the damage caused by the company.
I do agree that domestic violence should be a new protected attribute in the anti-discrimination legislation. It is well stated in the international human rights law that domestic or family violence is a breach of human rights. Some of the forms of domestic violence against women may include stalking, sexual harassment, rape, and intimate partner violence. Other than that, various reports show that domestic violence keeps on happening day in day out. It is also clear that such violence have led to the poor performance and health costs increment in workplaces (LaVan, Lopez, Katz & Martin, 2012). Most of the employees who face family or domestic violence face psychological and physical torture; hence, they intend to take more sick leaves (Swanton, 2013). Taking more sick leaves more frequently increases health costs and also inconveniences the business operations. In 2012, one of the principles that got endorsed by the Australian Council of Trade Unions Congress to lay the groundwork for workplaces was that dedicated supplementary paid leave should be made available for employees facing domestic or family violence (de Jonge, 2018).
Additionally, according to Australian Bureau of Statistics estimation, at least over 55% of the women who are in work place have experienced or are currently facing family violence (Humanrights.gov.au., 2014). It means that a considerable number of work places in Australia will be affected by women who have experience family and domestic violence. Other than that, the domestic or family violence also affects the economy of a nation. According to the estimation, it was realized that violence against women and children, which includes both the family and non-family violence, cost the government of Australia over $13 billion (Humanrights.gov.au., 2014). Moreover, according to the United Nations Convention on the Elimination of all Forms of Discrimination against women, it is prerequisite that all the governments should take the necessary measure to get rid of all sorts of discrimination against women at work places, public, or in the family (de Jonge, 2018).
Even though there are anti-discrimination laws, the family and domestic violence has not been recognized as a protected attribute in the law (Humanrights.gov.au., 2014). Additionally, it is evident that most of the survivors and victims of the domestic violence gets it hard when seeking for legal redress under the current grounds in the anti-discrimination. Therefore, some of the benefits of the inclusion of a protected attribute into the current anti-discrimination are because:
a protected attribute would help in clarifying and strengthening of the existing anti-discrimination laws
it would form better grounds for decreasing social and economic costs of domestic and family violence against women, and
it would also serve as an educative function. For example, it will enable domestic violence to be recognized as a legal crime when there is need for prevention and redress.
Other than the above named benefits to a victim of the domestic violence and to the nation and businesses, such attributes may form a ground that would serve as a compliment to other strategies (Humanrights.gov.au., 2014). For example, the National Plan to Reduce Violence against Women and their Children.
Reference List
Adams, K 2005, ‘Not Quite a Brave New World: Victoria’s Occupational Health and Safety Act 2004’, Deakin Law Review, 10, 2, pp. 376-392.
Blewett, V, & Dorrian, J 2012, ‘Partnering for workplace health and safety’, Work, 41, pp. 2753-2756.
Constant, N 2012, ‘Employee claims on the rise’, Hotel & Accommodation Management, 16, 4, pp. 40-41.
Curran, M 2009, ‘Employer relies on post-employment events to justify dismissal’, Keeping Good Companies (14447614), 61, 6, pp. 362-363.
de Jonge, Alice. 2018. “Corporate Social Responsibility Through a Feminist Lens: Domestic Violence and the Workplace in the 21st Century.” Journal Of Business Ethics 148, no. 3: 471-487.
Fair Work Act 2009 (Cth)
Keller 2009, Hazardous Materials Compliance Manual, Neenah
LaVan, H, Lopez, YP, Katz, M, & Martin, WM 2012, ‘The impact of domestic violence in the workplace’, Employment Relations Today (Wiley), vol. 39, no. 3, pp. 51-63.
Pagura, I 2013, ‘Work Health and Safety Act 2011: Do you know what this means for your workplace?’, Journal Of The Australian Traditional-Medicine Society, 19, 2, pp. 117-121.
Walker v Salvation Army (NSW) [2017] FWC 32
Humanrights.gov.au. (2014). Fact sheet: Domestic and family violence – a workplace issue, a discrimination issue | Australian Human Rights Commission. [online] Available at: https://www.humanrights.gov.au/our-work/family-and-domestic-violence/publications/fact-sheet-domestic-and-family-violence-workplace.
Swanton, M 2013, ‘Victim’s Rights’, InsideCounsel, vol. 24, no. 253, pp. 22-23.
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