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The legal side of Amazon’s latest controversy

15/03/2019 9:26 AM

The legal side of Amazon's latest controversy

THE LEGAL SIDE OF AMAZON’S LATEST CONTROVERSY

Amazon’s Victoria fulfilment centre has come under scrutiny, with casual employees complaining their working conditions are unreasonable. But what does the law say?

Amazon is no stranger to controversy. It has experienced years of negative news stories about tax contributions, riots in Spain and numerous reports of poor worker treatment. As predicted the controversy has now come here, to Dandenong’s fulfillment centre, just outside Melbourne.

The ABC has released a story detailing the experiences of seven disgruntled ‘Amazonians’ (both current and former employees).

They allege that the fulfilment centre is built upon a culture of fear, where their efforts are ‘timed to the second’ in a way that encourages unsafe work. Amazon has pushed back against their claims. But what does the law say?

Liability

Each day Amazon has up to 130-150 casual employees from labour-hire company Adecco at their Dandenong warehouse. In the ABC article, National Union of Workers national secretary Tim Kennedy is quoted as saying he believes that having such a large amount of casual labour-hire employees is highly unusual, and implies it’s being used strategically. Even if that’s true, it’s not illegal.

Using a labour-hire company gives Amazon more flexibility, and it also changes its liability around some workplace laws.

“Victorian workplace health and safety laws equally require labour-hire companies and host organisations to ensure so far as is reasonably practicable that the workplace is safe and without risks to health. The liability of host organisations, however, is confined to health and safety matters over which it has control,” says principal lawyer from McDonald Murholme, Andrew Jewell.

“A host organisation that engages a third party company to provide on-hire labor does not have primary liability for breaches of the Fair Work Act 2009 (Cth), with liability instead attaching to the labour-hire company.”

Amazon could be liable as an accessory to breaches of the Fair Work Act 2009 (Cth) by the labor-hire company in circumstances where Amazon has been found to be involved with a breach in the following ways:

  • aided, abetted, counselled or procured the breach;
  • induced the breach (including making threats or promises);
  • been directly or indirectly knowingly concerned in or party to the breach; or
  • conspired with others to effect the breach.

The one area where Amazon is perhaps most at risk is the accusation that their performance expectations contributed to an unsafe working environment.

Culture of fear

When concerns of safety were brought up by the ABC, the Amazon spokesperson insisted it was a top priority. “We are first and foremost focused on the safety of our teams… We have a site safety committee that meets monthly and we have undertaken hundreds of audits at the site, which managers and associates participate in to continuously improve our focus on safety.”

However the Amazonians that were interviewed disagreed.
“They make it out like it’s all about safety, but at the end of the day everybody will not follow safety procedures because it will bring their rates down,” one of them said.

At the crux of the issue is the pick rate, which is coordinated and measured by the device they use to scan an item before loading it up on their trolley. Their managers track and evaluate the rate. The Amazonians told the ABC that Amazon’s fulfilment centre is a high pressure environment where people are expected to ‘pick’ two items per minute. The ABC even created this game to replicate the experience.

While Amazonians were never explicitly told they would lose out on shifts if their pick rates go down, that’s the general understanding the casuals share.
“I was privy to conversations with management and a casual PA (processing assistant) and there was a lot of ‘Can we help them?’ We had people in their 60s. If they can’t help them, the next day they were sacked immediately, they wouldn’t get a text with their hours. Just, your shift has been cancelled,” one Amazonian says.

The Amazonians said they resorted to unsafe measures to reach targets, including piling items on their trolley to the point where they cannot see what is in front of them, skipping toilet breaks and avoiding drinking water.
“They expect your rate to stay the same all day and you’re expected to keep that rate up all day,” one Amazion says. “I don’t drink water when I work so I don’t have to go.”

Though Sarah Kaine, a UTS associate professor, is quoted in the article as saying that the performance expectations combined with the rigorous surveillance create a “perfect storm for vulnerability”, Amazon says it’s entirely reasonable. “As with nearly all companies, we expect a certain level of performance from our associates and we continue to set reasonable productivity targets objectively, based on previous performance levels achieved by our workforce,” the spokesperson says.

Jewell says there is a fine line when it comes to performance management.
An employer is entitled to set performance targets and allocate shifts in accordance with performance against those targets. However, performance targets will be unlawful if they are unrealistic and therefore pose a risk to the health and safety of workers.”

The line

So where is the line where performance expectations are deemed too high from a legal perspective? It depends on the workplace, but a few industrial relations decisions provide some interesting food for thought.

Take for instance this case where a Telstra worker was awarded compensation from the company after being diagnosed with a depressive episode due to his belief that his workload was excessive. Telstra unsuccessfully tried to argue that the compensation wasn’t warranted as his colleagues had a similar or higher workloads.

Interestingly, the court ruled that the worker’s subjective feelings regarding the workload were sufficient. “It is not necessary that [the worker’s] workload was objectively excessive. I find that he did genuinely perceive that he had a high and stressful workload, and this perception was based on the fact that he was undertaking a project management workload.”

In this Queensland case, a St John’s Ambulance worker suffered a psychological injury due to the fact that he took on the entire workload that three staff used to perform. Despite the fact that they all but ignored his complaints and calls for help, his employers said his burnout was the result not of their inaction, but from his own strong work ethic. The court found in favour of the worker.

In both cases a strong factor in favour of the workers was a well-tracked history of their injuries, their complaints and other interactions with the company.

If the Amazon employees feel their targets are unreasonable and cause them to act in an unsafe manner, they are justified in complaining to management. It would certainly help them with any future legal claims.

From their own words though it seems they are afraid that complaining about their working conditions because it would result in a cut of their shifts. Yet the only way they can improve their work conditions, and be protected from punishments related to unreasonable performance expectations, is to complain.

“It is unlawful for a host organisation to instruct the labour-hire agency to reduce a worker’s shift for a reason prohibited by the Fair Work Act 2009 (Cth) including because the worker has exercised a workplace right,” says Jewell.
“Accordingly, employers should ensure that performance targets are reasonably achievable notwithstanding any exercise of workers’ rights.”
It’s impossible to unravel the complexities of what’s happening within Amazon from a single article. But given that similar complaints have been made in many countries Amazon operates in, it’s reasonable to conclude that they walk a line a lot of workers consider unacceptable. It will be interesting to see if, with the introduction of 500 permanent employees, these complaints continue.

DISCLAIMER:  This article is general ONLY in nature and is not advice

First published on HRM Online, 01 March  2019

Samantha Smith

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