Angry unions reluctant to criticise SA

Union push for ICAC

Unionists rally for construction worker

TIM DORNIN
October 30,
2009 AAP

Building workers surrounded the Adelaide Magistrates Court
on Friday in a show of support for Ark Tribe, the construction
worker facing jail for refusing to front a federal government
commission in 2008.

Tribe has been charged with failing to appear before the
Australian Building and Construction Commission (ABCC) over
a safety meeting at an Adelaide building site.

Unions say he participated in the meeting but then refused
to give evidence against his fellow workers to the ABCC.
Tribe intends to contest the charge and could be jailed for
up to six months.

In court on Friday, defence counsel Michael Abbott agreed to
a four-week delay in the case to allow the prosecution to
respond to his request for further information.

However, Mr Abbott said the defence might need to subpoena the
material if it was not forthcoming.

Magistrate Joanne Tracey remanded Tribe on continuing bail to
appear again on December 18.

Outside, about 1,000 building workers rallied in nearby
Victoria Square before surrounding the court as Tribe emerged.
They vowed to return when Tribe next appeared in court.

SA Unions president Nick Thredgold said Tribe was being
persecuted for being unwilling to report on his workmates.
"The ABCC is a flawed system that strips construction workers
of the rights enjoyed by everyone else and treats them less
fairly than other Australians," he said.

"They don't have the right to a lawyer of their choice.
"They don't even have the right to remain silent."
CFMEU SA secretary Martin O'Malley reaffirmed the union's
resolve to take nationwide industrial action over the Tribe
case.

"The ABCC is seeking to penalise workers who've committed no
crimes, while companies continue to get away with appalling
rates of workplace death and injury due to shortcuts on safety
and shoddy standards," he said.

"The sickening irony is that workers are regularly killed
and injured by company negligence, but it's workers who face
jail if they dare to stop work after a fatality."
Meanwhile, hundreds of unionists shut down streets in Sydney's
CBD on Friday during a rally in support of Tribe.

Protesters marched through Sydney's CBD to the ABCC's offices
in Castlereagh Street about noon (AEDT) on Friday, with some
500 rallying outside the building.

Tribe's case has also drawn support from the Australian Greens,
with industrial relations spokeswoman Rachel Siewert describing
the prosecution as a disgrace.

"Ark Tribe would not be in this position if the ABCC had been
abolished two years ago when the Howard government was voted
out by the Australian people," Senator Siewert said.
"It is unacceptable to have workplace relations laws that take
away the right to silence, deny people their choice of lawyer,
provide powers to compel evidence with the possibility of
jail for non-compliance, and impose severe restrictions on
the rights of workers to organise and bargain collectively."

© 2009 AAP
Brought to you by

Union push for ICAC

Posted Fri Oct 23, 2009

The AMWU has put forward a motion to this weekend's Labor Party Convention
that an anti-corruption watchdog be set up. (ABC News)

Video: SA Premier defends WorkCover laws (7pm TV News SA)

The South Australian Government is facing pressure from within its own
party to set up an anti-corruption watchdog.

The Australian Manufacturing Workers' Union (AMWU) has put forward a
motion to this weekend's Labor Party Convention that an anti-corruption
watchdog with similar powers to a Royal Commission be set up.

Union secretary John Camillo would not elaborate why his union wants such
a body."Look at this stage the AMWU has a number of resolutions to its
platform," he said."At this stage it's saying that all of those are before the
ALP convention this weekend and when the time comes we'll get up and
speak in regards to that."

The Premier, Mike Rann, has long dismissed calls for a state-based
Independent Commission Against Corruption (ICAC).

ALP state secretary Michael Brown says the motion is not embarrassing for
the Government.

"The Labor Party is a broad church, very open, if branches want to put
forward motions they put forward motions," he said."It's a bit wrong to
suggest that a particular motion is embarrassing for the Government,
we'll see what the convention does with it."

A number of motions have also been put forward by unions demanding
changes to the Government's WorkCover laws.

Inspirational Quotes

"Courage is not limited to the battlefield. The real tests of courage are much
quieter. They are the inner tests, like enduring pain when the room is empty
or standing alone when you're misunderstood."~Charles Swindoll

Class Action Registration

If you were injured during the Kennett years and received no compensation
for your workplace injuries then email your interests
to: workcovervictims@westnet.com.au

Has our watchdog slipped the leash?

Illustration: Matt Davidson

"Ombudsman George Brouwer is some ineffectual bureaucrat"

Mr Brouwer and his investigators can compel people to answer

questions, without a lawyer and with no protection against

self-incrimination.

For the Kossmann and Brimbank reports, they obliged banks and

the Immigration Department to produce private details, raided offices,

seized computers and commissioned inquiries from government agencies.

In Victoria, complaints about Mr Brouwer's reports must go to

Mr Brouwer himself. He shows no sign of questioning himself,

nor subjecting himself to questioning by others - he refused

The Sunday Age an interview, saying his reports speak

for themselves.

This is so unethical and Not good enough !

This is why Injured Workers do not see Justice after complaining......

Dr David Kaye accused as fraud psychologist

The Sunday Telegraph
October 04, 2009

A CONMAN posing as a psychologist was able to fool NSW health authorities
with a PhD bought for $250 on the internet.

David Kaye who police allege bought his psychology degree on the internet
for $250 and established Two NSW centres set up since 1997 was also Awarded
work in government program.

Using the alias Dr David Kaye, 45-year-old Ali Davut Sarikaya was allowed to
treat police officers and public servants with the blessing of the state Government.

Mr Sarikaya, who was arrested by Harbourside police as he attempted to
board a flight to New Zealand at Sydney airport, appeared in Central Local Court
on Wednesday on fraud charges and was granted conditional bail.

Police alleged the Turkish-born "doctor" claimed to be a trained psychologist,
despite holding no formal qualifications apart from a bachelor of arts.

His patients included police officers, prison guards and senior legal figures
who were referred to his medical practice in central Sydney through
WorkCover NSW.

A statement of facts tendered to the court said Mr Sarikaya had "deceived"
numerous government departments and organisations since moving to Sydney
in 1997.

The court heard Mr Sarikaya had been convicted of fraud offences of a "
dishonest ... identity-type nature" in Victoria in 1994.

In the years since, Mr Sarikaya, who runs trauma clinics in Sydney and
Parramatta, had been building a profile as the fictitious Dr David Kaye.

Police said he used this alias to avoid scrutiny of his Victorian criminal record.

The court heard that Mr Sarikaya had gained membership of several prestigious
organisations, including the NSW Bar Association, by touting himself as a doctor,
which he justified using a spurious PhD.

"Inquiries indicate this PhD was purchased via the internet from an organisation
in Minnesota, USA, for $249.95, and is by no means an official document enabling
use of titles such as doctor," the court heard.

The police facts stated that Mr Sarikaya also obtained several identity cards,
including an Australian Health Professionals Association card, in the name of
Dr David Kaye to help bolster his identity.

The alleged facade was so convincing that Mr Sarikaya was approved to work
as a psychologist under the NSW Health Department's Official Visitors Program.

In 2006, he was appointed to the program for three years by then health
minister John Hatzistergos, now the Attorney-General, who personally signed
off his accreditation.

WCV:s If you have been treated by this man, then contact worksafe and report it!
You should have the right to have your case reviewed?

Has our watchdog slipped the leash?

Written by: MICHAEL BACHELARD
October 4, 2009

WHEN the State Government was cobbling together its anti-corruption
framework in 2004, with the ombudsman and the Office of Police Integrity
at its centre, critics were caustic.

''What we need in Victoria is a royal commission, but to head up that
commission we need a caped crusader,'' said then opposition leader Robert Doyle.
''The ombudsman's more at home in a cardigan.''

Fast forward to 2009 and nobody could complain that Ombudsman George
Brouwer is some ineffectual bureaucrat. His recent reports, particularly those
on trauma surgeon Thomas Kossmann and the Brimbank Council, have been
robust to the point of aggression. The complaints are now that Brouwer's
powers are too great; that his investigators are using them too assertively;
that his reports are too tough.

''I thought his behaviour was well over the top,'' says a highly regarded former
hospital administrator, Denis Swift, who was interviewed as part of the
Kossmann investigation and sideswiped by adverse mentions in the report
tabled last October.

''I wasn't allowed legal representation … The discussion at the interview was
nothing like what he wrote in the report - it was a bit like character assassination.''
Mr Swift is not the only one complaining. The Kossmann report and the
Ombudsman's later investigation into medical billing have offended a
significant number of senior doctors and the Australian Medical Association,
which says its members were treated badly and reports contained fundamental
errors.

The Brimbank report has already led to the sacking of ALP factional player
Hakki Suleyman, and it will put a large number of electorate officers in
Victoria out of work. But a former solicitor-general, Ron Beazley, found
many of the Ombudsman's findings were based on hearsay and could not
be substantiated. Others are concerned that the powers of the Ombudsman
are not subject to any form of official review.

''Any oversight body with coercive powers should report to a
standing parliamentary committee,'' says Monash University governance expert
Colleen Lewis. ''Reporting to a parliament as a whole does not give the scrutiny
necessary.'' The Government, however, says that its public accountability
processes are appropriate.

The Ombudsman's powers are extensive - his critics say like a ''star chamber'' -
yet the oversight of them is weaker than in any other state in Australia. Mr
Brouwer and his investigators can compel people to answer questions, without a
lawyer and with no protection against self-incrimination. Investigators can
demand evidence from almost any source - for the Kossmann and Brimbank
reports, they obliged banks and the Immigration Department to produce private
details, raided offices, seized computers and commissioned inquiries from
government agencies. Subjects of interviews are barred from discussing their
interview with anyone, under threat of a six-month jail term. And if they hinder
or obstruct an investigation or fail to answer questions, they face two years
behind bars.

Last year, as the Kossmann investigation was under way, Mr Brouwer convinced
the Government to beef up his powers even more by allowing him to name the
people he was investigating under the Whistleblowers Act. In his final report,
those adversely mentioned were all named, while the whistleblowers
themselves remained anonymous.

These are not uncommon powers - corruption fighters in other states have them
too. But in the past two years Mr Brouwer has been using them more
enthusiastically, perhaps fuelled by the political pressure to be seen to be as
tough as a fully fledged anti-corruption commission.

Colleen Lewis, an associate professor in the school of political and social inquiry
at Monash, has no problem with the powers and thinks Mr Brouwer's recent
reports have been ''excellent''. But she says Victoria's lack of parliamentary
oversight is an ''anomaly'' in national terms.

The Independent Commission Against Corruption in NSW, the Corruption and
Crime Commission in Western Australia, and the Crime and Misconduct
Commission in Queensland are all overseen by an ''inspector'' or a parliamentary
committee, or both. This is not simply window dressing. In NSW earlier this year,
the parliamentary committee rapped the Independent Commission Against
Corruption, saying one search was prompted by ''a rush of blood to the head''.

In Victoria, complaints about Mr Brouwer's reports must go to Mr Brouwer himself.
He shows no sign of questioning himself, nor subjecting himself to questioning by
others - he refused The Sunday Age an interview, saying his reports speak for
themselves.

Any oversight committee would have some ready-made complaints to deal with.
Mr Brouwer's gun investigator is Lachlan McCulloch, a former corruption-busting
policeman. He was the investigator in both the Brimbank and Kossmann cases
and is apparently regarded by Mr Brouwer as his best asset - a ferocious digger
who will use all the powers at his disposal. On both investigations, Mr McCulloch
was accompanied by QCs.

''It's robust, no doubt about it, and people who are loose with the truth will be
pushed, firmly,'' said one source, ''particularly when the investigators have
evidence that clearly demonstrates their dishonesty … that's the nature of the
inquisitorial process.''

Denis Swift was involved in this sort of interview, and is one of many aggrieved
people who have spoken to The Sunday Age. Most wanted to remain off the
record, the warnings of investigators still ringing in their ears. Mr Swift says he
was told before his interview that he had nothing to fear, that the investigation
was not about him. But when he admitted during the interview to being a
supporter of Thomas Kossmann, he says things turned ugly.

''The interview with three staff of the Ombudsman's office went for several
hours, it became very hostile, particularly with the detailed questioning by
the QC [Jeffrey Sher]. And I was maligned in his report,'' he said.

Mr Swift, who had resigned as hospital administrator at The Alfred hospital
several years before the interview, says he had no records to refer to, but was
required by the QC to respond to ''persistent and detailed questioning on
contractual issues … from notes that he continually referred to''. Mr Swift's
requests for a lawyer were denied: ''I was told they would decide if I needed it.''

Professor Jeffrey Rosenfeld, the head of neurosurgery at The Alfred, was also
stung by comments in the Kossmann report that he knew of problems with the
controversial trauma surgeon but ''failed to act'', partly due to ''a misplaced
sense of values''. The report recommended The Alfred review Professor
Rosenfeld's position. The review exonerated him, saying anybody would have
acted in the same way.

Professor Rosenfeld would not speak to The Sunday Age. But supporters say
the Ombudsman's criticisms were ''totally ridiculous''. One described Professor
Rosenfeld as ''the straightest human being on the planet''.

''For Jeffrey Rosenfeld to be held accountable for [Kossmann] who didn't report
to him … I think is extremely unreasonable, particularly from a public officer,''
said The Alfred's head of emergency and trauma, Associate Professor Mark
Fitzgerald.

''They (the Ombudman's office) have got the power to destroy somebody's
reputation and wellbeing, and what recourse have they got?'' said another
Professor Rosenfeld supporter. ''You can't sue, you can't take it to the Supreme
Court and have it out with them. All you can do is write a nasty letter.''

Other doctors say the Ombudsman refused to speak to people, including Dr
Fitzgerald, who had pertinent knowledge but were known as Dr Kossmann
supporters. They allege that the investigation was designed to come up with
a predetermined conclusion.

The Kossmann investigation was prompted by complaints by two senior
whistleblower doctors; 50 people were interviewed, and 12 spoke against Dr
Kossmann. The Ombudsman's final report concluded that Dr Kossmann had
greedily rorted the system of medical billing, perhaps to the point of criminality;
that he'd been dangerously incompetent as a surgeon; and that he'd fabricated
aspects of his professional CV and avoided tax.

These findings carry considerable weight, even if the Ombudsman cannot
himself lay charges. As The Age editorialised at the time, ''Those who
complained about the surgeon's conduct have been vindicated''.

A professional peer review of Dr Kossmann had already been scathing of his
surgical performance, but the Ombudsman ordered seven further investigations -
by insurers TAC and WorkSafe, by the Tax Office, the police, the Royal
Australian College of Surgeons, the Medical Practitioners Board and
Monash University.

One year on, the result of all these investigations is, so far, nothing. TAC and
WorkSafe have referred their findings to the police, who have yet to complete
their investigations - it is widely considered that nothing will come of them.

The only medical complaint against Dr Kossmann was resolved in his favour last
month by the Medical Practitioners Board, and he is still accredited by the college
of surgeons to operate as an orthopedic surgeon.

Monash University cleared him of academic fraud. The ATO has proclaimed no
finding but it is believed to have cleared him. Mr Swift says of the report: ''It
was nasty, but I don't think anyone really took it seriously. Everyone had a
little laugh and moved on.''

The Kossmann case then prompted a second inquiry by the Ombudsman, into
medical billing by surgeons generally. He reported, sensationally, that 27
surgeons might be guilty of fraud, and recommended a further review of billing
by WorkSafe and the TAC. WorkSafe confirmed last week that it had audited 16
surgeons considered ''very high risk'', clawing back just $37,000 in overpayments
- less than $2300 each, on average.

The TAC will not release figures, but sources say they are similarly low. No one
other than Dr Kossmann has been referred to police. On one view, the cost of
the investigation itself has outweighed the money recovered.

The problem for the Ombudsman is that the structure of the medical billing
system does not assist his contention that it was being rorted. The law says
only that TAC and WorkSafe must pay surgeons for their ''reasonable medical
expenses''. The Commonwealth Medicare Benefits Schedule acts only as a
guide, and for a long time the amounts paid to surgeons have been well over
and above that rate, with many variations negotiated. But Mr Brouwer's
findings of fraud were based on the fact that surgeons' billing varied from the
much-ignored schedule.

The Australian Medical Association and the Australian Society of Orthopedic
Surgeons are furious. AMA chief executive Jane Stephens says Mr Brouwer
repeatedly ignored her attempts to explain the system, and then got his
conclusions wrong. ''The system was looked at in a very superficial and incorrect
manner,'' she said. ''They've slandered a whole slab of the profession using the
wrong information.''

Mr Brouwer refuses to debate these issues but calls the AMA's arguments
''unsupportable''. In a recent letter responding to their complaint, he wrote,
''It is not my function, nor is it appropriate for me to debate my findings''.

Brimbank Council was sacked recently for incompetence. The opprobrium
attached to it was partly due to the Ombudsman's report, tabled in May, on
the previous council. Natalie Suleyman, the former mayor of Brimbank, has
complained that she was harassed and intimidated in an interview with Mr
McCulloch.

Her lawyer, George Defteros, has been trying to get hold of the tapes of the
interview to prove it. The Ombudsman will not give it to him, though he's
offered to allow Mr Defteros to listen to them in his office.

Hakki Suleyman, Natalie's father, lost his position as justice of the peace, and
also his job as an electorate officer with Planning Minister Justin Madden. Scores
of other electorate officers will now have to choose between their employment
and their positions as councillors.

Nobody is arguing that Brimbank was either competent or free of skulduggery,
or that the Ombudsman was wrong when he argued that there could be a
conflict when councillors also worked as electoral officers for MPs, but
Government sources say their own legal advice shows the Ombudsman's report
was not sufficiently based on hard evidence to support Mr Suleyman's sacking.

Former state solicitor-general Ron Beazley was asked by the Department of
Justice if the Brimbank report's findings showed Mr Suleyman was not fit and
proper to remain a justice of the peace. Mr Beazley confirmed some
misdemeanours, but slammed the Ombudsman for raising ''a number of
hearsay, generalised allegations … (with) no detail or substance to support
(them)''.

The president of the Legislative Council, Bob Smith, has become ''
concerned about … the Ombudsman's performance'', including the manner
in which the Suleymans were questioned.

But any systematic scrutiny of the Ombudsman's recommendations and
methods are largely absent from the parliamentary debate - mostly his reports
are used for political point-scoring. The Opposition will not push for
parliamentary oversight because it wants wholesale change, including the
creation of an independent commission against corruption.

Colleen Lewis has little sympathy for those damaged by Ombudsman's
reports, saying it's inevitable in a robust system. But she says a permanent
oversight committee would strengthen it.

''A dedicated committee can assist the Ombudsman and the Office of Police
Integrity - it's another set of eyes when they are asking for increased powers
and resources. They shouldn't be seen as a negative.''

A Robin, perhaps, to George Brouwer's caped crusader.

Ways the watchdog can bite

Under the Ombudsman and/or Whistleblower Protection Acts:Evidence can
be taken under oath.
■
■Investigators can enter premises and seize equipment.
■Witnesses can be jailed for up to two years for: threatening or taking
detrimental action against the whistleblower; obstructing, hindering, wilfully
failing to comply with or making a false statement to the Ombudsman or his
investigators.
■Evidence can be obtained ''from any person and in any manner
[the investigator] thinks fit''.
■Privileged and confidential information must be supplied.
■Investigators can decide whether or not a witness can have their lawyer
at an interview.
BUT
■Deliberations of government ministers and parliamentary committees
are not to be disclosed.

Stress claims produce mixed legal messages

Australia’s workers’ compensation schemes are grappling with a steady
increase in the number and cost of stress claims brought by employees.

In Victoria, for example, such claims represented 8% of all total workers’
compensation claims during 2001/2002, the last year for which statistics
are available. This compared with 3.6% prior to 1992/1993.

In New South Wales during 2002/2003, stress-related claims represented
over one-third of all major claims for occupational disease.

Although stress claims make up only a small percentage of all workers’
compensation claims, they create significantly disproportionate costs for
the community, employers and employees.

For instance, the Commonwealth Government has revealed that the average
cost of a psychological injury claim for a public sector employee is $109,000
whereas the average figure for a non-stress claim is $15,000.

The costs of stress claims are high because the stress claim regime is expensive
and complex. Employees are often off work for long periods. Return-to-work
initiatives are also more complex because employees may refuse to return until
the alleged stress factors, which are often organisational issues such as the
perceived attitudes of management or other employees, are removed from the
workplace. In addition, the litigation arising from stress claims frequently traverses
a range of different laws (including those relating to occupational health and safety, unfair/unlawful dismissal, workers’ compensation and discrimination) and can be
difficult to settle.

Chris Maxwell QC’s recent review of Victoria's OHS legislation stated that
the rise in stress claims across Australia is due to various factors, including
increasing hours of work and the intensification of work due to a decline in
resources, fewer staff, escalations in skills and responsibilities and increased
accountability.

Associated with this apparent epidemic in workplace stress has been a dramatic
increase in the incidence of reports of workplace bullying which is estimated to
cost industry as much as $3 billion a year.

When is stress compensable? Koelher v Cerebos and beyond…

Against this background is the recent High Court decision of Koehler v Cerebos
(Australia) Limited which was reported in the June issue of Safety Watch. In this
case, the court decided that an employee was not entitled to damages arising
from her stress-related psychological injury (which was caused by her increased
workload) because the injury was not foreseeable.

Koehler had accepted a part-time position with Cerebos as a merchandising
representative after a restructure had made her full-time sales position redundant.
Her new position involved three days’ work each week setting up supermarket
displays in a large geographic area. Koehler complained that her territory was
too big to cover in three days and asked that Cerebos reduce the number of
stores she had to visit or increase her hours. She continued voicing her complaints
orally and in writing but did not indicate that the job might be affecting her health.

Koehler was subsequently diagnosed as having the psycho-physical disorder
fibromyalgia and a depressive illness.

The High Court upheld the ruling by the Full Bench of the Western Australian
Supreme Court that Cerebos could not have reasonably foreseen that Koehler’s
duties would result in a psychiatric injury. It held that Koehler’s “agreement to
undertake the work runs contrary to the contention that the employer ought
reasonably to have appreciated that the performance of those tasks posed a risk
to (her) psychiatric health.” In effect, the court said it was not prepared to take the
step of saying “that all employers must now recognise that all employees are at a
risk of psychiatric injury from stress at work.”

This decision raises important questions. In particular, would the court have
found in Ms Koehler’s favour if her employer had been put on notice that she
might be in danger of a psychological or psychiatric injury from her work?
Further, if an employer is to be held liable in such circumstances, will this only
occur when the employee identifies that they are at risk of injury or is it sufficient
that they have complained of stress?

Employers should not take this decision as meaning that they can now ignore
the risk of being held liable for workplace stress. Employers in industries
susceptible to high stress should be particularly careful to ensure they have
safe systems which address the possibility of their employees suffering
psychological injuries. For example, in State of NSW v Coffey, the employee
was awarded damages for his psychological injury because the employer failed
in its duty of care to provide a safe system of work. The employee - the
caretaker of Housing Commission flats - witnessed several murders and
suicides and was subjected to abuse and threats from tenants. His requests
for security screens were denied and, when he left his job, he was suffering
post traumatic stress disorder and chronic dysthysmia.

In the recent case of Attorney General v Gilbert, the New Zealand Court of
Appeal held that the Department of Corrections had breached a duty to a
probation officer who resigned after coronary and psychiatric health problems
had left him 90% disabled. In particular, the court found that there had been
excessive workloads, understaffing and the Department had not acted on reports
that identified this under-resourcing.

It is also important for employers to bear in mind that Koehler v Cerebos does
not impact on their liability, or that of their insurers, in respect of stress-related
workers’ compensation claims.

While legislation now exists in all States and Territories to limit the circumstances
in which compensation for work-related stress is payable, the figures noted
above demonstrate that those exemptions have neither stemmed the tide of
stress claims nor reduced the cost of such claims on industry.

Generally speaking, work-related stress or psychological injury will not be
compensated where it arises substantially, wholly or predominantly out of an
employer’s reasonable decision to transfer, demote, discipline, retrench, dismiss,
or performance appraise (in NSW and ACT) or counsel (in Tasmania or SA) a
worker.

Unfortunately, the courts have not always been consistent in interpreting
these provisions, particularly in Queensland where Parliament has not defined
“reasonable management action”. In some jurisdictions, such as Victoria and
Western Australia, further questions are raised about whether or not “discipline”
includes performance appraisal or counselling.In spite of these exemptions from
liability, stress claims arising from counseling and disciplinary action for poor
performance are commonplace in every jurisdiction.

The High Court’s decision in Koehler v Cerebos must also be viewed against the
expansion of the duties under our occupational health and safety regimes to
cover psychological or stress-related hazards. These regimes were introduced
in the 1980s primarily to address hazards and risks to “physical” health. Most
recently, however, the Occupational Health and Safety Act 2004 in Victoria
(which comes into effect on July 1) has explicitly extended the definition of
“health” to include “psychological health”. This amendment seems to expressly
acknowledge the employer’s duty to prevent bullying in the workplace as far
as is reasonably practicable.

Where to from here?
It is incorrect for employers to interpret Koehler v Cerebus as limiting their
liability for workplace-related stress. Clearly, countervailing trends suggest
that employers face significant challenges in avoiding the cost of various types
of claims by employees who allege that they have suffered psychological injury
from the pressure of their work or by the conduct of their managers or colleagues.

In designing systems for reducing occupational harm, the potential for stress-
related injuries and the cost of stress-related claims, must be paramount, despite
suggestions to the contrary in Koehler v Cerebos. Implementing safe systems of
work which address and are responsive to the possibility of psychological injury
will involve several steps.

The extent to which such injury is foreseeable will depend on many factors,
including the employee’s actions and susceptibility to stress, the work environment
and any management actions taken to counsel or otherwise deal with the employee.

The fact that an employee may have agreed to perform the work is a significant
factor in foreseability, but not a conclusive one.

Employers who do not properly address the possibility and/or incidence of stress
in their workplace, do so at their own peril.


Paul Ronfeldt PartnerAustralian Business Lawyers
(03) 8686 5716
paul.ronfeldt@ablawyers.com.au

Jonathan MorleyLawyerAustralian Business Lawyers
(03) 8686 5713
jonathan.morley@ablawyers.com.au

No excuses for bad supervisor behaviour

Excerpts from this article first published in ‘Human Resources’ Magazine,
Issue 101, 4 April 2006

Two recent decisions highlight the importance of supervisors and managers
leading by example when demonstrating appropriate standards of behaviour
in the workplace.

Breach of Employer’s Trust
In Cunningham v Australian Bureau of Statistics (2005) AIRC PR963720, the
Full Bench of the Federal Commission considered the seriousness of a manager
cheating in the office footy tipping competition. Mr Cunningham was employed
as an Assistant Director. He was responsible for the development and maintenance
of the office footy tipping database.

Mr Cunningham was discovered logging into the database on weekends after
some games had been played to change his tips. The rules of the competition
were that tips for each round had to be finalised before the Friday night game.
Mr Cunningham would enter his tips on the Friday and then change them on
the weekend to improve his results. Mr Cunningham stood to gain financially
from the changes. Unfortunately for him, his changes were logged into the
backup of the database.

A formal investigation was instituted for possible breaches of the Australian
Public Service Code of Conduct. Mr Cunningham denied most of the allegations.
He admitted that on one occasion he had changed the tips because he had
forgotten to change them before the Friday night game. He said that he had
intended to make the changes so it wasn’t unfair on the other participants in
the competition. He said that he did not intend to cheat. This explanation was
not accepted and Mr Cunningham’s employment was terminated.

Commissioner Eames at first instance found that there was no valid reason for
the termination of employment. Commissioner Eames concluded that changing
footy tips is “not work related in terms of the Code of Conduct”.

The Full Bench rejected Commissioner Eames’ conclusion and observed that
“trust was a critical element in the employment relationship, particularly at
the management level”. As Mr Cunningham was at a senior level and had
system administrator privileges, his position carried with it a high degree of
trust. The Full Bench concluded that Mr Cunningham’s actions meant that the
requisite level of trust no longer existed and there was a valid reason for the
termination.

The Full Bench observed that Mr Cunningham’s 14 year unblemished record
may have been significant if he had made an early and frank disclosure of all
of the alterations he had made. The fact that he abused his position of authority
for personal gain was serious enough to justify his dismissal.

Breach of Sexual Harassment Laws
In Mangiafico v Department of Human Services (2005) AIRC PR 963416,
the Commission confirmed that supervisors are expected to model appropriate
standards in the workplace and must not engage in sexual harassment of their
colleagues.

The Department of Human Services discovered that Mr Mangiafico had been
engaging in inappropriate conduct in the workplace. In the course of investigating
the complaints, other staff members complained about frequent inappropriate
physical contact. The allegations included offensive comments, inappropriate
hugging and feeling of female employees and inappropriate touching of male
employees.

Mr Mangiafico denied the allegations and said that hugging and putting his arm
around colleagues was not intended to be in any sexual sense. He said the he
was just a “touchy-feely guy”.The Commission found that his conduct was “not
befitting an employee with his level of responsibility” and that he “could reasonably
have been expected to have been of sufficient maturity to appreciate that physical
contract in the workplace is, in all but exceptional circumstances, most likely to be inappropriate”.

As a supervisor, his duties included modeling appropriate positive behaviours in
the workplace. The Commission found that his dismissal was justified in the
circumstances.

Supervisors and managers that breach workplace standards of behaviour may
be dismissed because they have failed to set an example to their colleagues. It is
clear that a higher standard of behaviour is expected of supervisors and managers.
However, in dismissing an employee for these reasons, employers should ensure
that principles of substantive and procedural fairness are adhered to.

Craig Taylor Senior Associate
Australian Business Lawyers

The consequences of failing to conduct a proper investigation

Excerpt from this article first published in Human Resources Magazine,
Issue 141 - 13 November 2007

In a recent unfair dismissal case an employee was reinstated after the AIRC
found that the company failed to conduct a proper investigation into complaints
made against the employee. The company had sacked the employee after it
determined that he accused another employee of "sucking off" the company's
supply chain manager and on the basis of a previous first and final warning that
the employee had received regarding an alleged breach of the company's
harassment policy.

The incident surrounding the first and final warning allegedly involved the
employee whispering into the ear of a female employee he supervised that he had
noticed that she had taken off her stockings. In addition, it was also alleged that
the employee had put his hand on her chin and closed her mouth. While the
employee had admitted to making a comment about the female employee
changing her clothes, he claimed that he hadn't commented on her stockings.

The employee admitted to touching the female employee on the face, but said
that it was a gesture of friendship and that the female employee regularly touched
him on the shoulders when he was sitting at the computer.

The AIRC found that the incident surrounding the first and final warning "
could not be characterised as harassment" and did not warrant a warning.
The AIRC found that the company had investigated the incident in a "cavalier
fashion" and failed to conduct a proper interview with the female employee,
failed to put the precise nature of the female employee's allegations to the
employee and failed to make findings of fact.

In addition, the AIRC found that the alleged comment triggering the termination
did not warrant the dismissal of the employee. This incident involved a comment
that the employee made to another employee that he was supervising. It was alleged
that he said to the employee that he was “sucking off” the company’s supply chain
manager.

The AIRC found that the employee had said that he was “sucking up to”
the company’s supply chain manager and that this was said in the context of the
other employee making jovial remarks and swearing at him. Again, the AIRC found
that the company had failed to conduct a proper investigation by failing to put the
exact nature of the allegations to the employee and that they had already
determined the facts prior to speaking to the employee.

Overall, the AIRC was highly critical of the company’s pattern of accepting
complaints about the employee without any attempt to obtain the employee's
version of events and failure to investigate in a proper manner.

This case shows that employers must be extremely careful when investigating
matters. In addition, it highlights that the basis of prior warnings that employers
rely upon to terminate an employee may come under scrutiny in legal proceedings.

Jessica Lee - Lawyer
Australian Business Lawyers

Big damages for workplace bullying

Excerpts from this article first published in ‘Human Resources’ Magazine,
Issue 102, 18 April 2006

A recent case of workplace bullying has highlighted the importance of
employers ensuring the health, welfare and safety of employees and other
persons in the employer’s workplace.

A former employee of Group 4 Securities Pty Ltd was recently awarded $1.9
million in damages for a psychiatric illness caused by workplace bullying.

Mr Naidu, a security guard and employee of Group 4, was contracted to
provide security services to Nationwide News Ltd. Whilst performing this
work, Mr Naidu was directly supervised by Nationwide staff and in particular,
Nationwide’s Security and Fire Manager, Mr Chaloner.

Mr Naidu was subjected to workplace bullying by Mr Chaloner, which included,
amongst other things, racial abuse, threats of violence, verbal abuse, intimidation,
humiliation, excessive hours and excessive workloads.

The Court found that both Group 4 and Nationwide had a duty of care to provide
Mr Naidu with a safe workplace and that both companies had breached this duty.

As such, both companies were found to be liable for Mr Naidu’s injuries. The Court
held that as Mr Chaloner was an employee of Nationwide, the Company bore
responsibility for Mr Chaloner’s conduct.

The Court held that Group 4 had also breached its contract of employment with
Mr Naidu. The Court held that it was an implied term of Mr Naidu’s contract of
employment with Group 4 that he not be subjected to workplace bullying in the
course of his employment. The Court found that Group 4 had breached this
implied term because, amongst other things, Group 4 were aware Mr Chaloner
used intimidation toward staff and were aware of incidents of unacceptable
behaviour by him. As such, Group 4 was aware or should have made inquiries
as to whether Mr Naidu’s health was at risk in working with Mr Chaloner.
Having failed to make this inquiry, Group 4 was responsible for Mr Naidu’s injuries.

This case demonstrates the importance for labour hire employers to ensure the
health, welfare and safety of its employees at work at all times (including when
at host employer sites) and that this duty cannot be delegated to the host employer.

Host employers also have a duty to ensure the health, welfare and safety of
contractors they engage to perform work at their workplace. As such, organisations
need to take a proactive approach to ensure that they have workplace bullying and
harassment policies in place, that all workplace participants are aware of their
obligations under these policies, and that adherence with the policies is monitored
and reviewed on a regular basis.

Kelly Godfrey
Senior Associate
Australian Business Lawyers

Guidelines for Model Litigants - VWA

The Law Institute of Victoria and their thoughts on "Serious Injury Certificates"

Australia Announces Improvements to the Comcare Scheme

The Minister for Employment and Workplace Relations, Julia Gillard, today
informed the Workplace Relations Ministerial Council (WRMC) meeting of a
number of improvements the Government will make to the Comcare scheme
following a comprehensive review.

The Comcare scheme provides workers’ compensation and occupational
health and safety (OHS) arrangements for employees of the Australian
Government and of some private sector companies that are licensed to
self-insure their workers’ compensation liabilities under the scheme.

As promised at the last election, the Rudd Government imposed a
moratorium on private sector companies seeking to join the
Comcare scheme and announced a review to ensure that Comcare
is a suitable OHS and workers’ compensation system for self-insurers
and their employees.

Given the progress towards harmonised national OHS laws and the
proposed transfer of OHS coverage for Comcare self-insurers to the
states and territories, the Government will maintain the moratorium
until 2011 when uniform OHS laws have been implemented in all
jurisdictions.

To do otherwise would cause unnecessary dislocation in that companies
would need to adapt to Comcare and then quickly change again to adapt
to the new model laws.

The Government will introduce legislation to give effect to the moratorium
for this further period.

In response to the review, the Government will make a number of
important improvements to the Comcare scheme.

To encourage timely determination of workers’ compensation claims, a
statutory time limit will be introduced within which claims must be determined.

The Government will reinstate workers’ compensation coverage for off-site
recess breaks. This will re-align the Comcare scheme with the majority of
jurisdictions and remove the inequity in coverage for employees whose
employers do not provide on-site facilities for meal breaks.

Medical and related costs will continue to be paid where a worker’s weekly
compensation benefits are suspended for refusing to participate in the
rehabilitation process.

The Minister will direct Comcare to strengthen its enforcement of OHS.

The Minister will also write to Comcare and ask it to issue guidance material
to assist employers in improving consultation with all employees on OHS matters.

These improvements build on earlier enhancements and work already
underway.

The Government has already increased workers’ compensation lump sum
and weekly death benefits under the Comcare scheme to align them more
closely with death benefits payable under State and Territory schemes.

In considering improvements to the Comcare scheme, the Government had
regard to the Report of the Review of Self Insurance Arrangements under
the Comcare Scheme, prepared by the Department of Education,
Employment and Workplace Relations (DEEWR).

The Department’s report drew on information from stakeholder consultation
and 80 written submissions to the review. The Department engaged Taylor
Fry Consulting Actuaries to collect the information and provide expert
advice to inform the review.

Revenge of the toenails

Alan Howe
From: Herald Sun
September 27, 2009

IT was the day Jeff was bushed as rural anger overflowed, changing the face
of our state. But what did we learn?

George Santayana's family knew all about drought. He was born in Avila, a
town on an abrupt shaft of rocky tableland in the middle of the Iberian
peninsula that receives too little rain and whose land is barely arable.

The Spaniard left Avila as a youngster, received a glorious education that
included Harvard and Cambridge, and became a noted philosopher and poet.
He is famous for the powerful, but often misquoted, aphorism that "those
who cannot remember the past are condemned to repeat it''.

The inhabitants of rural and regional Victoria also know too much about
drought. They've looked on in the past decade as, it would appear, increasingly
less of Victoria is as arable as we once thought.

They have also had cause to ponder Santayana's words a decade after the
extraordinary events of September and October 1999 when an apparently
invincible premier went to "his'' people and got his marching orders.

The state election that year became one of the most improbable stories of
Australian politics. Former Ballarat school teacher Steve Bracks, an almost
unknown Opposition leader just seven months into the job, was taking on the
leviathan of Australian conservatism, Jeff Kennett.

The polls had Kennett not just winning, but almost certainly achieving an
increased majority in his third-term. The sure victory in 1999 was to put
Kennett up there with our longest-serving prime minister, Sir Robert
Menzies, and legendary long-term premiers Sir Thomas Playford, of South
Australia, and our own Sir Henry Bolte. We were talking statues.

But country Victorians had other plans. It felt betrayed by both terms of
the Kennett government and was out for blood, plenty of which flowed as
the mute Liberals -- Kennett controversially silenced his colleagues for the
duration of the campaign -- fell in silence, one by one, to a re-energised
Labor Party and three bold independents.

As everyone remembers, election night threw up its own rare drama: the
Member for Frankston East, Peter McLellan, was found dead on polling day,
his estranged wife breaking in to his flat after he failed to respond to knocks at
the door.McLellan's death was a blow to the Liberals. So had been the last 14
months of his life.

Once a valued member of Kennett's team, McLellan departed suddenly in
1998, criticising the premier's "autocratic'' style, along with changes to
WorkCover and the role of the Auditor-General, as the reasons for his
dissatisfaction.He didn't mention the abandonment of the bush.

Neither, it seems, did his colleagues or even the Nationals, who provided the
deputy premier as part of their Coalition agreement. Few were listening,
but the bush -- ill-advisedly, but not maliciously, described by Kennett that
year as Victoria's "toenails'' -- was speaking loud and clear.

A bush initiative came from an outfit calling itself A Future for Rural Australia.
Their action man was Derek Manning, from Bendoc, in the state's northeast,
who, on his horse Deveraux and billed as the Lone Rider, decided to visit
struggling country towns to collect letters to be delivered to Spring Street.

Other riders joined as the campaign gained momentum."I'd planned to do the
trip before the election was called,'' Manning said yesterday. The "toenails''
comment had angered him.Kennett had badly disappointed the bush. "Not
only the bush, Kennett was betraying everyone outside of Melbourne.

You only had to go past Dandenong to find out,'' Manning said.The Sunday
Herald Sun, of which I was then editor, was on the case. In a leading article
before the election, under the headline "Spread the prosperity'', we talked of
towns that had been left out on a limb, their rail link severed. We spoke of
hospitals and schools that had been closed, council branch offices shut down,
while banks and other private institutions joined the painful exodus."It is time
to take stock before more damage is done and more lives are ruined,'' we wrote.
"In the countdown to the election, both the Coalition and Labor need to ponder
the disturbing fate of country Victoria.''THAT election day, Melbourne stayed
with the Coalition, but the bush sought its revenge and, with 20-20 hindsight,
that was inevitable.While we in Melbourne were celebrating the rapid
recovery from the embarrassing debacle that was the final Cain-Kirner
years of unforgiveable Labor mismanagement of Victoria, things elsewhere
hadn't improved as much.In parts of the resurgent capital, unemployment
had fallen below 5 per cent, and was at worst 10 per cent in the jobless
blackspots.

Across Moe and Morwell in the Latrobe Valley it was headed towards 20 per
cent.John Brumby, trounced by Kennett as Opposition leader at the 1996
election, but newly installed as minister for state and regional development in
the new Bracks government, pointed out that of the 21 plans being worked on
by the Office of Major projects "not one is in country Victoria''."

All $2.1 billion worth of projects are within the tram tracks of Melbourne,'' he
added.Ten years on, has Brumby, the former federal member for Bendigo
and who maintains a hobby farm at which he'd like to spend more time, also
given in to the arrogance of a vast, albeit inherited, parliamentary majority?

Brumby owns the safest Labor seat in the state, whereas marginal seats incline
you to keep in touch with the electorate. Has he lost touch with the country
Victorians whose choice of Steve Bracks 10 years ago eventually delivered to
Brumby what in 1996 seemed so out of reach -- the premiership?

Last week, people living near the planned, but still controversial, Wonthaggi
water desalination plant, woke up to a shock: John Brumby had "acquired''
easements across their properties to allow passage of the plant's pipeline
to Melbourne.Using an exemption from the Land Acquisition and Compensation
Act, the Government wrote to landowners the other day saying it had already
"purchased'' the easements -- in at least one case a 1km long, 20m wide swath
through a prime beef holding.

The letter they received stated that: "Given the urgency of this project (we have)
obtained an exemption from serving a Notice of Intention to Acquire.'
'Apparently, compensation will be paid in December.

Landholders are allowed to keep using their own land "rent-free'' for the next
three months. Crikey, that's generous of them.SPRING Street insiders believe
Brumby was hoping autumn and winter rains might obviate the need for the
$3.5 billion plant, but the continued dry ruled that out.Jackboot footprints also
litter the mud of the easements acquired for the equally controversial north-
south pipeline, but that includes a much-needed updating of the northern
Victorian irrigation system, which will bring long-term benefits to country
and city folk.

It took about four years for the Kennett government to lose the bush.
Brumby has been Premier for two. Let's hope he knows his history.

Firm denies $700k costing for WorkCover

24 September 2009 by Olivia Collings

CLAIMS that WorkCover South Australia spent $700,000 on legal fees for a
case thrown out of court are wrong according to the firm.

Managing partner at Johnson Winter & Slattery, Peter Slattery, told The
New Lawyer that “the figures you see in the media are completely wrong”.
This revelation comes just a day after The New Lawyer and other news
sources reported the contrary.

The accusations were raised in parliament by shadow attorney-general,
Vickie Chapman, who said: “WorkCover alleges that it has spent more than
$700,000 on prosecution costs in the case of Thompson v Duffin. The case
has been thrown out by the Full Court of the Supreme Court on the grounds
that the prosecution, which was directed by WorkCover and not by the DPP,
acted improperly.

"The justices of the Supreme Court identified in their judgment that the case
bore all the hallmarks of a win-at-all-costs approach and that WorkCover
has no prosecuting guidelines such as those which are almost universally
applicable to state prosecuting authorities and which are designed.”

In response to the allegations, South Australian attorney-general, Michael
Atkinson, agreed with Chapman, saying: “I share her concerns.”
He added: “The prosecution was done by the private law firm Johnson
Winter & Slattery. The judgment is a condemnation of their methods. I think
that WorkCover would be well advised to look towards the Crown to do future
prosecutions. I think that policy change suggests itself in the judgment.

“When I first came to office as attorney-general, the crown thought that there
was a move to privatise their work, to farm it out to private legal firms; in fact,
many members of the Crown Solicitor's Office seemed pessimistic about their
future. I never entertained for a moment privatising the work of the Crown
Solicitor's Office. My view is that the Crown Solicitor's Office does an
outstanding job and that any well-run government would rely on in-house
government lawyers who take a whole-of-government perspective.”

Slattery said he was unable to comment on the case, as it was an ongoing issue,
but was adamant the figures quoted in the media and parliament were incorrect.
“I don’t know where they come from,” he said. “The number they have is wrong.”
Julia Davison, CEO of WorkCover SA, said the decision to employ Johnson
Winter & Slattery for the case against Thompson, was based on WorkCovers’
obligation to the workers they represent.

“WorkCover appoints legal representation on a case by case basis, utilising
firms that have a prosecutorial background and knowledge of the Workers
Rehabilitation and Compensation Act 1986,” she said.

"WorkCover is responsible for ensuring compliance with our state's workers
rehabilitation and compensation legislation. Part of this responsibility includes
taking steps to thoroughly investigate allegations of fraud against the scheme
and, where appropriate, initiate court proceedings."

The case started in the Adelaide Magistrates Court on August 13, 2004, and
ended on September 4 of this year in front of the South Australian Supreme Court.
The leader of the opposition, Isobel Redmond, did not return The New Lawyers
calls in time for publication.

Female commando Robyn Fellowes wins compensation case | The Australian

The Australian:

"THE army's first female commando yesterday won a High Court victory
over the military's compensation scheme that could benefit thousands of
defence personnel.

Lieutenant Colonel Robyn Fellowes, 40, had been denied a payout for an
injury to her right knee because she had already been compensated for a
'lower limb' injury - to her left knee.

The 4-1 judgment found the Comcare guide to impairment was unfair
because 'her two separate injuries led to two separate losses of use of, or
damage to, two separate parts of her body'.

Lieutenant Colonel Fellowes, who now runs a fitness business in Brisbane
and is still in the Army Reserve, enlisted in 1986 and served in Bougainville,
East Timor, Iraq and Afghanistan.

'I've loved my time in the army but the rigorous physical work we are
required to do does impact on the body,' she said yesterday.

Her lawyer, Ben Mason, of Slater and Gordon, said 'the second injury was
simply ignored' and he suspected that up to 5000 people were in the same
position.

'It has been a cheap way to treat our defence personnel, who carry these
injuries for the rest of their lives, affecting their work, recreation and family
life,' Mr Mason said.

Lieutenant Colonel Fellowes' appeals to the Administrative Appeals Tribunal
and the Full Federal Court failed but the High Court said she should have
been assessed on the effect the injury had 'on the functional capacity of a normal
healthy person'."

'Win-at-all-costs' case puts WorkCover's power at risk

25 September 2009 by Olivia Collings

A recent and expensive case has highlighted the power of WorkCover,
South Australia, to prosecute at will, riling the state's shadow Attorney
General and its highest court.

The South Australian Supreme Court full panel has called for reforms to
way WorkCover prosecutes and is prosecuted in fraud cases, to make a fair
and impartial system.

The call comes following accusations raised in parliament by the state's
shadow Attorney-General, Vickie Chapman, who said: “WorkCover alleges
that it has spent more than $700,000 on prosecution costs in the case of
Thompson v Duffin. The case has been thrown out by the Full Court of the
Supreme Court on the grounds that the prosecution, which was directed by
WorkCover and not by the DPP, acted improperly."

And Chapman told The New Lawyer today: “The judgment is utterly scathing
of the action of WorkCover South Australia in proceeding in the case, of which
they had already made an assessment to his entitlements."

“[The Court] made such strong statements that, in future cases WorkCover
should not be responsible for the decision on whether to prosecute.”
The case of Thompson V Duffin, or WorkCover, was a workers' compensation
fraud case, which saw Jeff Thompson charged with making fraudulent claims
relating to an illness.

When handing down the judgment of the full court, Justice Bleby, Justice
Gray and Justice Layton said the case was “conducted as if it were a civil
recovery action on the part of WorkCover or as if it were defending a claim
for income maintenance and other benefits… It bore all the hallmarks of a
desire to win at all costs, with scant regard to the fact that it was prosecuting
serious criminal offences.”

They added: “The second matter of concern relates to the position of
WorkCover as a complainant or 'victim' and WorkCover as a prosecutor.
In most cases of criminal prosecutions, an independent agency of the State
will conduct a prosecution based on information supplied by a complainant.
However, the prosecutor does not represent the complainant.

"In this case, WorkCover was, in effect, the complainant or victim, having
allegedly paid to Thompson substantial benefits under the Workers
Rehabilitation and Compensation Act which it believed had been paid in
circumstances where there was a breach of s 120 of the Act. But it was also
the prosecutor.

"The nominal complainant was an officer of WorkCover. WorkCover gave
the instructions. The prosecution was conducted by WorkCover’s solicitors,
not a State prosecuting authority. There was not that necessary degree of
detachment between complainant or victim and prosecutor.”
It is the detachment between the complainant or victim and prosecutor that
Chapman wants addressed immediately.

“I think the Attorney General agrees that something needs to be done,
whether for prosecution purposes the DPP is the most suitable entity, or as
he takes the view that the crown solicitor should do it.”
Like WorkCover SA, the NSW, Victorian and Queensland bodies all have the
same system in place, with no independent advisors or consultation.
“WorkCover should not be responsible for the decision on whether to
prosecute,” explained Chapman.
“It’s not lonely a matter that has cost the tax payer, it’s a matter of principle,
there has to be some independence.”