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Common law claims: Special considerations for a young and ageing workforce

The final webinar in our common law series focussed on special considerations at common law when working with a young and ageing workforce.

Bill Rogers, Assistant Crown Solicitor with Crown Law provided employers with information on how to keep the younger and ageing workforce safe and tips on any enhancements to instructions, supervision, plant and equipment or systems of work to accommodate workers in these demographics. The session also looked at the employer’s obligations in terms of rehabilitation and the possible implications for damages claims.

You can listen and watch the webinar recording or view the presentation slides and transcript. Questions and answers from the session are listed below.

  • What about employees that were employed to do a job and age has now made them incapable.
    • You need to consider the anti-discrimination legislation and also consider whether there are alternative positions within the organisation the worker could perform. Otherwise, if there are concerns the worker is incapable of doing a job and is at risk of injury, it would be prudent to have the worker assessed by a Doctor (preferably an Occupational Physician) as to whether the worker is capable of carrying out the tasks required of the position. (See also response below on ‘Pre-existing conditions’)
  • What ages do you define as ‘young’ and ‘aged’?
    • There is no ‘definition’ as such. Normally people under 25 are considered youths. In relation to an ageing workforce, most of the statistics and research focusses on the increase in life expectancy and the increase in retirement age but it is generally viewed that an ageing workforce refers to a demographic of 45 years and older.
  • Bill, you talked about rehab and the focus on re-training. In your experience what do you think is reasonable for employers to fund or provide assistance and how will the court consider this?
    • The issue here, in relation to an ageing workforce, is that in the event a person may no longer be capable of performing duties in their normal role, an employer needs to consider whether there are other roles within the organisation the employee may be able to perform and then provide appropriate training in relation to this position.
    • The employee has an obligation to mitigate their loss. If this offer is made and the employee does not participate then this can be raised as a failure to mitigate their loss and damages assessed may be reduced. In relation to how a court would consider the employer providing this assistance, the consideration will come in the assessment of damages.
    • If the employee is able to return to work in another position this will significantly reduce any award for damages.
  • Are life insurance payments considered in future payouts? Considering life insurance cannot take into account re-training, how does this prevent workers to be paid out again in another WorkCover claim and Total Permanent Disability (TPD) claim?
    • Life insurance/accident insurance/superannuation are not considered when assessing damages. The individual is entitled to these as it is seen as a separate insurance policy with benefits flowing from the premium a person has paid.
  • Isn't asking a potential employee about previous injuries against the Disability Discrimination Act?
    • See below.
  • Just wondering what the implications are for completing medicals (benchmarking or periodic) for existing employees). Given we are already employing them, we obviously can't terminate their employment - rather need to make reasonable adjustments. However; do you believe it is an advantage to be aware of their pre-existing injuries/functional limitations via this avenue, or rather better not to go with this approach?
    • See below.
  • What is EAS? In what context? Is this an official name of a service or something I as an employer, should be providing?
    • Employee Assistance Service sometimes referred to as EAP. 
    • These types of programs have various names and are usually part of an employer’s health and well-being policy/program for their employees.
  • What obligation is there on an employee to disclose a condition that 'may' have an impact on their work? For example sleep apnoea which is controlled by CPAP therapies for an office worker or diabetes?
    • See Below.
  • I had a young worker who was a welder with diabetes who over heated and had a fit while holding a live welder. What was his obligation to advise us that he was high risk?
    • See below.
  • I understand prospective employees are obligated to disclose pre-existing injuries, but what if they don't disclose them and accept a job that is likely to injure them? What obligations and options do employers have?
    • See below.
  • Question about pre-existing conditions.
    • This is a complex area and there is no simple 'one answer fits all'. When considering pre-existing conditions in the context of employment you need to consider the following legislation:
      • Workers’ Compensation and Rehabilitation Act 2003 – sections 517A to 517D;
      • Anti-Discrimination Act 1991;
      • Fair Work Act 2009 (CTH: General Protections Claim; and
      • Privacy Act 1988 (CTH).
    • For a thorough discussion on this area I would refer you to the WorkCover Queensland webinar held on 5 June 2014 on Understanding disclosure of pre-existing conditions.

For more information on the common law claim process, visit the dedicated common law services knowledge bank on our website. Our common law case studies are also a good resource to help you understand the practical application.

Last updated
29 June 2015

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