OHS: Work Health & Safety Bill

1. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT OCPE actions in relation to the Work Health & Safety Bill OHS: Work Health & Safety Bill

2. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Holly v SMS Operations Pty Ltd T/A Swick Mining Services [2011] FWAFB 6640 (13 October 2011) • Marcus Holly—Gun Driller working for Swick Mining Services—ceases employment in December 2010 Swick—specialist drilling company—publicly listed $35M revenue in first quarter this FY

3. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT • Mr Holly claimed that he had been terminated by the employer because they—really didn’t want him • Swick claimed that Mr Holly had resigned (orally) before his last swing (FIFO 2 week stint) Holly v SMS Operations Pty Ltd T/A Swick Mining Services [2011] FWAFB 6640 (13 October 2011) Commissioner Cloghan [2011] FWA 3508 (27 June 2011) Resignation—no termination at the initiative of the employer—application dismissed

4. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Holly v SMS Operations Pty Ltd T/A Swick Mining Services [2011] FWAFB 6640 (13 October 2011) Mr Holly lodges an appeal under section 604 of the FW Act Finds two emails from HR Manager to Commissioner Cloghan that he had not seen Mentions the emails to the full bench—who pick up on the fact that he was not provided the opportunity to comment on the adverse remarks in the emails

5. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Holly v SMS Operations Pty Ltd T/A Swick Mining Services [2011] FWAFB 6640 (13 October 2011) • That it was in the public interest to allow the appeal • Quashed the original decision • Original decision had failed to observe the requirements of natural justice • Referred the matter to Commissioner Williams for a re-hearing

6. OFFICE OF THE COMMISSIONER FOR PUBLIC EMPLOYMENT Holly v SMS Operations Pty Ltd T/A Swick Mining Services [2011] FWAFB 6640 (13 October 2011) “ The requirements of natural justice will not be met if private representations made by one party might operate to the prejudice of another party. The representations in the emails sent by the respondent in this case were representations of that kind. The fact that the emails were sent to the Commissioner’s associate does not appear to us to be a relevant point of distinction. In the ordinary course, and in the absence of any indication to the contrary, it is to be assumed that the Commissioner would have read the emails or become aware of their content through some other means. While there is no suggestion that the Commissioner was in fact influenced by the private communications, it is sufficient that he might have been.”