Employee workplace rights and rules

Posted on 23-Aug-2010

Commissioner Don Brown was appointed as the inaugural Queensland Workplace Rights Ombudsman in control of the QWRO which commenced operation from 2 July 2007. The Ombudsman’s functions include the provision of information and advice to Queensland workers and employers about their workplace rights and obligations, and to promote fair and equitable practices in Queensland workplaces. The Ombudsman is charged with investigating and publicizing unlawful, unfair or inappropriate industrial relations and other work related matters in Queensland. The Ombudsman also advises the Minister for Transport, Trade, Employment and Industrial Relations, the Hon. John Mickel MP, on the impact of industrial relations laws in Queensland workplaces as well as providing quarterly and annual reports to the Queensland Parliament.

In the 18 months since the Ombudsman was appointed and the QWRO established, there have been in excess of 29,000 inquiries and over 900 cases investigated along with three industry-wide investigations. In this time it has been possible to identify emerging trends and pressing problems. Issues addressed in these submissions arise mainly from matters dealt with by the Ombudsman and the QWRO or the experience gained by the Ombudsman in his role as a Queensland Industrial Relations Commission member.

A sham contracting arrangement occurs where an employer attempts to disguise an employment relationship as an independent contracting arrangement, usually for the purposes of avoiding responsibility for employee entitlements. Under the sham contracting provisions of the Workplace Relations Act 1996, an Employer cannot:

  • intentionally disguise a person’s employment, or an offer of employment, as an independent contracting arrangement;

  • dismiss, or threaten to dismiss an Employee for the sole or dominant purpose of reengaging the person as an Independent Contractor;

  • Make a knowingly false statement for the purpose of persuading an Employee to become an Independent Contractor.

The Act provides serious penalties for breaches of these provisions. Employees and Independent Contractors can request assistance from the Workplace Ombudsman if they feel their rights have been breached. Workplace Inspectors can seek the imposition of penalties for breaches of sham contracting and reform opt-in provisions. The Court may impose a maximum penalty of $33,000 per breach. Workplace Inspectors may also apply to the Court to grant an injunction if an Employer seeks to dismiss, or threatens to dismiss, an Employee for the sole purpose of re-engaging the employee as an Independent Contractor. The purpose of the injunction may be to prevent the dismissal from occurring, have the Employee reinstated, compensated or otherwise remedy the consequences.

The Occupational Safety and Health (OSH) Act of 1970 created the Occupational Safety and Health Administration (OSHA) within the Department of Labor and encouraged employers and employees to reduce workplace hazards and to implement safety and health programs. The Act gave employees many new rights and responsibilities. This booklet discusses these rights and responsibilities and encourages employees to work cooperatively with employers to promote safe and healthful workplaces that add value to everyone: businesses, workplaces, and workers’ lives.

Employers must establish a written, comprehensive hazard communication program to ensure that employees who work with or near hazardous materials are informed of the hazards and provided proper protection. A hazard communication program includes provisions for container labeling, material safety data sheets, and an employee training program. Some employers may not be able to comply fully with a new safety and health standard in the time provided due to shortages of personnel, materials, or equipment. In these situations, employers may apply to OSHA for a temporary variance from the standard. In other cases, employers may prefer to use methods or equipment that differ from those prescribed by OSHA, but which the employer believes are equal to or better than OSHA’s requirements. In these cases, the employer may seek a permanent variance for the alternative approach.

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