What are your legal obligations as an employer? – Circuit Magazine

By Alan J. McDonald

McDonald Murholme Senior Associate Andrew Jewell discusses common employment issues in the electrical industry. The industry has a myriad of potential risks to employees’ health and safety if safety protocols are not followed. The article addresses the most common workplace issues seen by employers in the electrical industry as well as some tips on how to start addressing them in accordance with the law.

See below article for further details.

Shedding light on workplace issues

The electrical industry in Australia is regulated by the Electrical Regulatory Authorities Council, however it does not protect all employee and employer rights.

The following situations are the most common workplace issues seen by employers in the electrical industry as well as some tips on how to start addressing them and which laws apply.

Workplace injury

The electrical industry has a myriad of potential risks to employees’ health and safety if safety protocols are not followed.

When managing employees with an injury, there is a multitude of rules, some of which overlap each other.

If your employee has suffered an injury at work such as being electrocuted or falling on a job, they may be entitled to receive WorkCover payments even if they are not totally incapacitated.

Under the Victorian WorkCover legislation, an employee is not incapacitated if they can return to ‘suitable employment’.

A number of factors are relevant to whether a job is ‘suitable employment’.  These include:

• the kind of incapacity the employee has;
• the kind of work performed before the injury; and
• the employee’s age, education, skills and experience.

If an employee has suffered a workplace injury and has been unable work in the way they were used to, they may be able to claim for ‘incapacity’ under the WorkCover scheme.

If you are finding it difficult to determine whether the employee has a complete or partial incapacity for work, you may benefit from receiving legal advice.

The obligation to provide a safe working environment is found in the Occupational Health and Safety Act 2004 (Vic) and can be another source of liability. We recommend studying the Occupational Health and Safety Regulations 2007 under the Act to ensure that you follow your obligations as an employer.

Please note each state and territory has its own worker compensation and occupational health and safety legislations.

Are they a contractor or an employee?

The electrical industry employs a large amount of contractors. Workplace rights vary between contractors and employees and sometimes it is hard to distinguish if the person is genuinely a contractor or an employee and whether or not the employer is the company providing the work or the agency which pays them.

Only employees can commence claims for unfair dismissal so it important to know which category they fall into if you are being accused of not following your obligations as an employer. However, of more important is the potential liability for employment entitlements if an employee is improperly classified as a sub-contractor. The courts have developed a range of criteria that may be examined in order to distinguish between the two categories.

Find out more about workplace rights in McDonald Murholme’s free User Guide to the Fair Work Act 

Reference: ‘Shedding light on workplace issues’, Circuit Magazine, 12 October, 2015.