As with our last update the area of Workers Compensation continues to be problematical for many SME employers who struggle with compliance requirements.
Along with employers in the Federal system now having to accrue paid leave for employees on Workers Compensation (see footnote re State employers) another potential issue for employers is with regard to employees who work for other businesses in addition to the hours spent in their workplace.
This relates to the rights of the employee with concurrent employment who suffer a workplace injury with employer A and as a result cannot undertake their work with employer B.
What does this mean for employer A you ask?
It means that Employer A may find themselves responsible not only for the payment of wages for the injured employee for the hours they cannot work for Employer A but ALSO any wages lost as result of not being able to work their usual hours with Employer B. A fact that recently came home to roost with a new member of Workwise who not only had to cover the 30 odd hours a week that a part time employee worked for them but also for the 16 hours that the same employee regularly worked for another employer.
Employers should ensure that they check their exposure and obligations in this area with their own insurer and be more diligent in having a clearer understanding of the types of work and the number of hours that employees who hold more than one job undertake for another employer.
One regular concern in this area relates to potential fatigue issues where an employee knocks off from one employer to start work on their second job, of itself this may increase the risk of an accident or incident dependent on the type of work involved.
The amount of control that an employer can exercise over part time (and casual) staff in terms of working with other employers is limited. Certainly employment contract documentation can and often does speak to potential conflicts of interest, where an employee works for a direct competitor and employers have a duty of care to monitor fatigue as it is a potential OSH issue in the workplace.
It may be appropriate to undertake an audit of any of your employees who have more than one job and assess potential risk to your business. We also suggest that you review your current ‘internal’ Workers Compensation Policy to check that you have some process in terms of the above and also review your employment contract documentation to ensure that there are some stated conditions in relation to working for a second employer.
Call us for assistance with your documentation review or to discuss further if you have any concerns relating to this in your business.
Footnote to annual leave accruals on Workers Compensation:
Readers of our previous update on Workers Compensation will have become apprised of the requirement to accrue paid annual leave entitlements for employees on workers compensation. That article dealt exclusively with federal system employers in its reference to the Fair Work Ombudsman.
For State based employers the Department of Commerce (DOC) appears to have remained steadfast in its position that – unless an Award specifically states that it does – annual leave does not normally accrue for any period where an employee is absent from work on bona fide Workers Compensation. AL does accrue where employees undertake active work on a return to work program on a pro rata basis.
This is general information only and State based employers are advised to seek further advice in relation to leave accruals with both their insurer and DOC.
The information contained in these articles does not constitute and should not be relied upon as ‘legal advice’. Workwise recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise.