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GWM Lawyers and Conveyancers

Welcome to the November 2002 on-line edition of the GWM Lawyers and Conveyancers Law Update Newsletter, informing friends and clients of changes in the law that might impact on their personal or business lives.

In this newsletter...

• Occupational Health and Safety in Australia
• Privacy Issues - When selling - or buying - a business in Australia
• Giving a Reference - Australian Employers have a duty of care

Occupational Health & Safety in Australia

The Occupational Health and Safety Act empowers the Courts to impose very heavy fines on Companies that do not maintain appropriate safety measures. Be aware of the potential for penalty and take practical and preventative steps before yourstaff are hurt and your company penalised. The extent of the penalties can have a crippling effect on your business.

Hairdresser fined $16,000 in landmark judgement

An Illawarra hairdresser has been fined a total of $16,000 in the first successful prosecution for occupational overuse to be brought by WorkCover NSW.

Sakani Pty Ltd (trading as DH&N Beauty Nails), of Dapto, pleaded guilty in the NSW Chief Industrial Magistrate's Court to failing to ensure the health, safety and welfare of a senior hair stylist and two nail technicians, and failing to notify WorkCover of an accident.

WorkCover senior inspector Colin Fraser told the court that although the injuries occurred between October 1998 and May 1999, he had brought the issue of manual handling to the employer's attention in July 1996 during a blitz of 40 salons in the Illawarra.

The hair stylist suffered back strain and the nail technicians suffered back, neck and arm pain during the course of their work.

The employer admitted failing to assess the risks associated with the work being undertaken in its hairdressing salons, and failing to ensure that employees took sufficient rest breaks to avoid the risk of repetitive strain injury.

Chief Industrial Magistrate George Miller expressed surprise that attention was not paid to the risk of repetitive strain injury, given the considerable time and effort spent by the employer in designing its salons and accounting for each minute of employees' time.

Bricklayer fined $60,000 in sequel to wall collapse

A bricklaying firm, which built a wall that collapsed causing serious spinal injuries to an apprentice plumber, has been fined $60,000 by the NSW Industrial Relations Commission.

Peter J Davis (Newcastle) Pty Ltd pleaded guilty to an offence brought under Section 16 (1) of the Occupational Health & Safety Act 1983, which rendered the apprentice a paraplegic.

The bricklaying firm admitted having left a 2.6 metre high wall without lateral support, and without warning the Principal Contractor and other tradespersons at Newcastle's Metro Apartments construction site in February 1999.

A WorkCover investigation revealed a breakdown in coordination of sub-contractors' work on the top storey of the building. A wooden kitchen servery, that was to have provided stability to the free standing wall, was not built after the bricklayers left the site and plumbers began work 10 days later.

Justice Kavanagh said the circumstances on the site were a reflection of the modern industrial trend of a Principal to contract out its work.

The Principal ordered the bricklayer to remove scaffolding once the wall was built, then ordered the plumbers to enter the site without identifying the unstabilised wall as a serious risk to their safety, said Justice Kavanagh.

On 2 November, 2001, the Principal Contractor for the project, Capitol Apartments Pty Ltd, was fined $85,000 by the IRC sitting in court session for offences arising from the same incident.

WorkCover NSW General Manager Kate McKenzie commented: "This case is an unfortunate example of what can go wrong when the correct procedures for identifying hazards, assessing and controlling risks and monitoring them on a large and complicated building project are not followed."

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Privacy Issues

When selling - or buying - a business in Australia

Customer databases and other forms of personal information are a major asset for many businesses. What they contain and what can be done with them can often have a major effect on what a business is worth to a buyer.

In one case in the United States, a database which had been initially valued at US$200 million was sold in the end for just US$50,000, after restrictions were imposed that only a business in a related industry could buy the database and that it had to comply with the terms of the original company's privacy policy.

In Australia, the Privacy Commissioner has released new guidelines which clarify the Privacy Law's impact on mergers and acquisitions. The days of being able to freely use any data you obtain are over. Buyers are now restrained by the circumstances in which the seller obtained the personal information.

In the pre-sale process, that means minimising the disclosure of customer data to what clearly is necessary and putting security safeguards in place. Later, when the sale is concluded, it means implementing the appropriate customer disclosures and consent processes.

The new Privacy Laws can be a potential minefield for business operators. We at GWM Lawyers and Conveyancers can provide practical solutions to assist you in ensuring compliance. Contact GWM Lawyers and Conveyancers.

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Giving a Reference

Australian Employers have a duty of care

While references are recognised as part of the currency of the modern workplace, there is no legal obligation on employers to automatically give one to a former employee. If they do, they should take care to ensure the overall accuracy of what they say.

References should be sufficiently robust to express frank and honest views, but an employer must take reasonable care over both the facts and opinions expressed.

An employee adversely affected by a reference can claim damages for conduct that prejudicially affects the employee's future employment prospects and causes continuing financial loss of a nature that was reasonably foreseeable.

The courts have found that a reference must be fair as well as accurate, and that if an employer focuses on an employee's flaws to the exclusion of his or her skills, the employer is likely to have breached their duty of care.

In a recent case that came before the courts an employer referred to someone as being a man "of little or no integrity" but failed to mention that he had been a top-revenue earning salesman.

In another case, the court held that a reference that implied that a former employee had entered into a negotiated exit settlement to pre-empt serious disciplinary procedures was "wholly unfair".

Many references are given or supplemented by telephone conversations, and some work environments rely heavily on 'a quiet word' or off-the-record comments. In these cases it can be difficult to provide evidence that the employer has damaged an employee's career prospects after job offers are mysteriously withdrawn, postponed or altered.

There are, however, new privacy laws which could make it easier for an employee to investigate why a promising job offer has not come to fruition. The employment records of a current or former employer are excluded from the operations of the Act but not those of prospective employees or independent contractors.

Your solicitor can advise you if you believe you have beengiven an unfair or inaccurate reference.

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