High Court reins-in OHS Regulators

1 April 2010

A recent high court appeal has found in favour of an employer where the safety regulator alleged breaches, but failed to state “what the correct action” should have been.

This appears to be “a win for fairness and balance” in testing the duties of; employers, directors and managers.

The High Court has ruled that regulators must not only state the error (breach), but must also state what should or could have been done to prevent the breach e.g. accident.

In other words regulators will now have a greater onus to demonstrate reasonably practical solutions, instead the previously common practice of regulators to tell employers to “conduct a risk assessment”.

Note: This is an extremely brief summary of a very complex legal issue. We can expect more in-depth explanations from legal experts over the coming months, and we watch with interest the response of lower courts in future prosecutions.

Safety_in_Action_Newsletter_April_2010

The Cost of Bullying

23 March 2010

On February 9, 2010 a Victorian Magistrate handed down fines totalling $330,000 for workplace bullying. The employer was fined $250,000. The employees who subjected their co-worker to bullying were fined between $4,000-$10,000. This is the first major decision in Australia in setting a benchmark for prosecutions in the future.

What is bullying? A person bullies when they do or omit to do something that is repeated, systematic and directed towards an employee or group of employees, that a reasonable person would expect to victimise, humiliate, undermine, threaten or intimidate that person or persons, and which creates a risk to their health and safety.

Bullying is a form of harassment and should not be tolerated.

What are examples of bullying?

·         Being isolated or excluded.

·         Playing mind games or ganging up.

·         Being made fun of - particularly directed at the way the employee looks, their family, sex, race, culture or the like.

·         Being given meaningless jobs or unattainable deadlines or performance goals.

·         Withholding information or gossiping about the employee.

·         Physical harassment such as pushing, punching or wrestling.

·         Any form of direct physical contact that is unwelcomed.

·         Sexual propositioning, talk or contact that is unwelcomed.

The recent victimisation case contained terrible allegations involving the bullying of a 19 year old female employee over a period of 15 months that ended with her suicide. One of the allegations involved taunting the employee over a botched suicide attempt and pouring fish sauce over her hair and body. However, many of the allegations were similar to the above list.

The decision should warn all employers in respect of workers and contractors that:

1. You must have a behaviour policy and procedure in place that prohibits bullying, explaining what it is and explaining the risks of being a bully (termination/prosecution);
2. Train and induct all workers and contractors into the policy and procedure;
3. Train managers to detect bullying behaviour, to never condone it and to recognise the workplace symptoms that suggest bullying is occurring.
4. As part of the bullying policy and procedure include;
a. An informal path of resolution that is confidential and assists the employee resolve the issue without disciplinary action;
b. A formal investigation process with a disciplinary outcome; and
c. An employee onsite program to support victims of bullying so they stay at work, overcome the issue, have their self-esteem restored and develop resilience.
5. Ensure that all steps of the complaint and solution process are kept, and required to be kept confidential to avoid gossip and workers taking sides in the workplace.

Caution

Unless you have the above process it is likely that any disciplinary action taken by you will fail. You must have a bullet proof process and enforce it.

Douglas_LPT_2009

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New OHS Duty Cast a Wide Net

The much anticipated draft Model OHS laws are expected to be released for public comment next week reflecting the decision of the workplace Relations Ministerial Council on the recommendations of the National OHS Review Panel.

The draft legislation will introduce model provisions which each of the States and Territories have committed to adopting into law in each of their jurisdictions.

The draft legislation will recast the duty of care approach by introducing the concept of a person conducting a business or undertaking as being the central duty holder under the law. The laws will also include a new approach to personal liability and create new enforcement powers and higher penalties for OHS offences.

Duty of care

The legislation is expected to introduce a new duty holder to replace “employers” at the center of the general duty provisions – a person conducting a business or undertaking.

It is expected that under the new laws a person conducting a business or undertaking will be required to ensure, so far as is reasonably practicable, the health and safety of workers engaged or cause to be engaged by the person and workers whose activities are influenced or directed by the person. In addition, the person will also have a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

More than one person can be a person conducting a business of undertaking at any given workplace. Notwithstanding that, each person must discharge their duty to the extent of their capacity to influence or control and consult, cooperate and coordinate their activities with those other persons.

This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety.

At a typical construction site the subcontractors will be conducting a business or undertaking in their respective trade and therefore will have a duty of care to other persons at the site. Principal contractors will also be conducting a business or undertaking of construction services. Superintendents and project managers will similarly be conducting a business or undertaking as will consultants on the project. Indeed, even the principal or developer of the project will be conducting a business or undertaking, namely that of commercial development of the site. All these persons will be duty holders under the legislation as persons conducting a business or undertaking.

The new approach also has the potential to capture complex corporate structures since holding companies and management companies may still be performing a relevant business or undertaking for the purpose of the legislation. Even financial lenders on projects may be performing a business or undertaking and therefore may have relevant duties under the legislation.

It is expected that the person conducting a business or undertaking will also have the obligations with respect to incident reporting and consultation thus completing replacing the need for the concept of employer to be maintained as a duty holder in the legislation. This is intended to maintain the expansive approach created through the creation of the duty-holder category but in practice is likely to come with some complications. It will, for example, create significant duplication of functions with multiple persons being obliged to report the same incident.

Penalties

It is expected that the legislation will introduce three categories of offences with the highest category attracting a maximum penalty of $3m.

Category	Description	Maximum Penalty
Category 1	Most serious cases – Breach of the primary (general) duty involving recklessness or gross negligence and serious harm (fatality or serious injury) to a person or a risk of such harm.	Corporation = $3 million Individual = $600,000 Imprisonment – up to five years
Category 2	Breach of the primary (general) duty where serious harm or the risk of it without the element of recklessness or negligence.	Corporation = $1.5 million Individual =  $500,000
Category 3	Breach of the duty that does not involve serious harm or the risk of serious harm.	Corporation = $500,000 Individual =  $100,000

The maximum penalty for individuals will be $600,000 and/or up to 5 years imprisonment.

In addition, it is expected that courts will have the ability to make publicity orders, restoration orders, community service orders, enforceable undertakings, injunctions, training orders and compensation orders.

Publicity orders are now a feature of the OHS legislation in most jurisdictions but they are sparingly used. In NSW where they have been available since 2001, they have been used against the government departments and local councils only.[1] If used more widely as they are in the environmental context, they have a very significant deterrence potential especially given the financial markets’ increased awareness of the link between good OHS performance and good corporate governance more generally.

Training orders also have significant potential. It is expected that the Court will on sentencing have the power to require the person convicted of an offence, and presumably officers of the person in the case of corporations, to undertake a specified course of training.

The power to order compensation for OHS offences, however, if introduced as is expected, will introduce a new dynamic to OHS prosecution. Prosecutions will shift from an exercise solely aimed at punishing the offender to one, at least in part concerned with compensating injured persons and families of deceased persons. This has the potential to give injured persons and families standing in prosecutions and an interest in such proceedings which they presently do not have. It also blurs the line between workers compensation and OHS enforcement and is likely to make proceedings more adversarial where there are allegations of negligence on the part of the injured person.

Public comment

The draft legislation is expected to be released shortly. While the principles put forward in the reports into the Review of National OHS legislation were on the whole sound, the devil is always in the detail. It is important that all interested parties pay particular attention to the draft legislation when it is released and make appropriate submissions in the public comment period.

HR_insight_Sept_2009

What Stress Does To You?

What can extreme or long-term stress do to your body, physically and mentally?

Most people would be surprised just how much of an affect this type of stress can have on our bodies. To assist Australians to build a picture, Lifeline Australia has created a simple diagram (attached and available at www.stressdown.org.au/media), showing some of the possible ways your body can be affected when exposed to prolonged or extreme stress.

“Some stress can be healthy, and can assist us to function at peak capacity,” Lifeline CEO Dawn O’Neil said today. “But extreme or prolonged stress can have a detrimental affect on our physical and mental wellbeing. Stress can have an impact on almost every part of the body. The sort of extreme or prolonged stress caused by traumatic events or long term work pressures can sometimes cause serious issues for our bodies.”

Stress can exacerbate mental health issues like depression, anxiety, insomnia and moods swings. It can be a cause of back pain, and tension, bad skin, and stomach cramps. It can affect our appetite, our reproductive systems and reduce our immunity against things like the cold and flu.

A recent poll by Newspoll for Lifeline Australia showed that 41% of Australians are experiencing high, unhealthy levels of stress.

“We have found that two in every five Australians are experiencing levels of stress that is potentially harmful. This stress is resulting, according to the poll, from work, finances, health, thoughts of the future and personal relationship pressures,” Ms O’Neil said.

“Around seventy percent of people who call Lifeline are experiencing high levels of psychological distress. So that’s why Lifeline is urging the country to look honestly at their own stress levels and work towards good stress management early, before it becomes a more serious problem.

For further information or comment contact:Chris Wagner, Lifeline Australia, 02 6215 9446 or 0434 378 939 Release date: 17 Jul 2009

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Long hours put strain on Australian workers

Australians feel that long working hours are intruding on their personal lives, with women feeling the strain more than men. A quarter of full-time employees feel work regularly interferes with their personal lives, according to Work, Life and Workplace Flexibility: The Australian Work and Life Index 2009 (AWALI) released by the University of South Australia. While men's dissatisfaction has remained steady since the first survey in 2007, two thirds of women working full-time felt they were constantly pressed for time, up from 59 per cent in 2007. Overwork is also harming workers' ability to improve their skills. Two thirds of the 60 per cent of employees who believed they could engage in further training said they did not have the time to do so.

Adelaide Advertiser report  

Study links stress, computers to musculoskeletal pain

A Sydney University study of 1300 Australian Public Service staff reveals that musculoskeletal symptoms are more likely caused by high workloads and tight deadlines than by posture or other physical factors, the Community and Public Sector Union (CPSU) reports. Karin Griffiths, one of the researchers and a CPSU member, said that unmanageable workloads and unrealistic deadlines were among the stronger predictors of neck and back pain and employers should recognise the contribution of work stress to physical ill-health.
"When you have staff doing a job that is already computer based, then give them higher workloads, tighter time constraints and more deadlines, the evidence suggests that you substantially increase the risk of musculoskeletal symptoms," she said. Further, the study revealed that working in front of a computer for six or more hours a day increased the risk of musculoskeletal problems by up to 230%, while working in front of computers for eight or more hours increased the risk by up to 500%. Griffiths said that increased computerisation was a health hazard for the Australian public sector where 80% of staff spends three-quarters of their working day at a computer. "Advances in technology have created a sedentary environment in our working lives. Instead of getting up to go to the library, consulting a manual or even talking to a colleague, it’s all done from our desks," she said.
Source: Workplace OHS (SafetyNet Journal)

Workplaces rife with bullying
Despite the risk of hefty fines and damage to corporate reputation, many employers still seem blasé about the issues of workplace discrimination and bullying.

Australian workplaces are rife with bullying, with almost one in three (30 per cent) employees claiming they have been bullied at work and one in four (24 per cent) that they have been discriminated against.
The findings are the result of a national survey of more than 2000 employees con ducted by online learning and information management provider WorkPro. According to its Workplace Pulse Quarterly Survey, bullying remains a feature of the workplace, with 27 per cent of respondents stating that bullying or discrimination has happened to them with in the past two years.
Almost half (46 per cent) of respondents said they had seen their colleagues bullied or discriminated against within the past two years. Even more alarmingly, 31 per cent of the group had witnessed such behaviour multiple times.
According to WorkPro business manager Tania Evans, the problem is far more prevalent than many employers realise. “Organisations need to realise that bullying and unfair treatment of staff is occurring and could be impacting on their own workplace culture or, worse still, exposing them to the risk of liability, possible fines and even brand damage.

“Managing the risks is about empowering your people to fully understand their rights and responsibilities at work, and to feel like they can speak up on inappropriate behaviour with out experiencing recrimination as a result.”
The research also found that Australian employees are very aware of workplace sensitivities. Almost three-quarters (71 per cent) of respondents said they worry about offending colleagues in a discriminatory way, such as on the basis of gender, disability or other distinctive attributes.
Unfortunately, despite this strong level of awareness, 27 per cent expressed uncertainty regarding when their own rights are being violated and 31 per cent are under the wrong impression when it comes to who is legally responsible to provide this information, indicating a need for further education.
Evans says it is surprising that, given the business risks, employers are still not ticking all the boxes on equal employment opportunity (EEO) and occupational health and safety (OH&S) education. “The results show that Australian employees have a thirst for knowledge about their workplace rights and obligations,” Evans maintains.
More specifically, employees indicated they would most value information on: what to do if bullied or discriminated against (16 per cent); their workplace rights (14 per cent); unacceptable versus acceptable workplace behaviour (12 per cent); and who to report an incident to (11 per cent). Some 46 per cent want information on all these matters before commencing a new role.
“What many employers fail to realise is that they do not have to be directly involved in, or even aware of, an incident for them to be liable,” Evans says. “They can be prosecuted for an incident that happens between other staff members, as well as for not providing employees with adequate OH&S and EEO information and training, yet the latter is an area often left alone in terms of induction.”

Human Resources Leader - 2 April 2009

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WorkSafe highlights legal consequences of safety failings
A number of cases involving significant workplace health and safety issues have gone before the courts this week. WorkSafe says this highlights that the message on OHS still needs to be heard by many employers. WorkSafe’s Legal Services and Investigations Division Director, Stan Krpan, said while penalties for serious breaches of safety laws now exceeded one-million dollars he was still concerned many people did not take their obligations seriously.

“With Victoria’s work-related death toll now standing at 11 for the year and serious injuries occurring daily, WorkSafe is taking a rigorous approach to enforcement, particularly in cases where the failings were obvious and easily fixable. We are not backing down from our core responsibility to the community to administer and enforce Victoria’s safety laws”, he said.
Three of the seven cases in court this week involve fatalities, another resulted in a man suffering brain damage and in another, a man lost all the toes on one foot. Two men are charged with intimidating a WorkSafe inspector and a company has been charged with having inadequate guarding on a machine even though no one was hurt. All the matters involve serious allegations that will now be tested in the courts.

SafetyNet will report on the outcomes of these cases as they come to hand.
VWA media release

NSW:  Former cop wins $1.6 million for post traumatic shock
A former undercover police officer has been awarded $1,680,000 for a post-traumatic shock condition (PTSC) brought on by exposure to violent criminals. The NSW Court of Appeal made the judgement after the initial trial judge refused damages. The female officer was medically discharged from the NSW police force in 2005 suffering from PTSC. She claimed her employer failed its duty of care by not regularly reviewing her mental health during her 11 years as an undercover officer. She said her accumulating stress may have been avoided had the condition been identified earlier. At trial, a single judge had refused damages, finding her employer had not committed any breach of its duty of care. But on appeal three justices found the NSW Police Force's negligence caused, or materially contributed to the officer's injury. Regular reviews of officers' mental health should have been a feature of undercover work, the judges found. The court heard the woman served three years full-time as an undercover cop and more than eight years' part-time. She suffered two severe trauma incidents towards the end of her career, which she claimed contributed to her condition.
SMH news article

 Stressed rats make poor decisions

Chronically stressed rats make poor decisions and their brains become ‘rewired’. These are some of the findings of a new study from the University of Minho in Portugal and the United States National Institutes of Health (NIH) in Maryland. The researchers explained that “the ability to shift between different behavioural strategies is necessary for appropriate decision-making.” The stressed rats in the study appeared to lack that ability. The rodents were trained to use two levers for another of the tests, one for each treat. After the rats learned the rules, the researchers picked one treat to dispense randomly, whether or not the rat hit the lever. The relaxed animals hit that treat's lever less often, while the stressed rats continued to hit both levers with equal frequency.
When the scientists studied a region of the rats' brains called the dorsal striatum, they found striking differences between the two groups. In stressed rats, neurons in the dorsomedial striatum, an area associated with goal-directed behaviour had shrunk, making fewer connections to other cells. Meanwhile neurons in the dorsolateral striatum, an area that controls habits, had grown and formed more branches. The researchers concluded that chronic stress rewires areas of the brain involved in the switch between goal-directed and habitual actions.
The findings have implications for workers in jobs where rote decision-making inhibits the ability to adapt to changing environments. The authors of the study noted that this was highly detrimental and that the findings have a broader impact on everyday decision-making in humans.
Ergonomics Today 

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National OHS Review – Coverage of Volunteers

(Article from Volunteering Australia's e-newsletter “Involve” issue 5/2009)

A National Review into Model Occupational Health and Safety laws has been underway since early 2008, with a view to one model law being adopted across Australia within five years.  Harmonising OHS laws in this way aims to cut red tape, boost efficiency and provide greater certainty and protections for all workplace parties.  It will certainly reduce complexity for organisations working across different jurisdictions.

Coverage of volunteers is not explicit in all current state and territory OHS legislation.  The advisory panel’s lengthy second report to government makes the recommendation (Recommendation 93) that the model law should define a ‘worker’ (rather than an ‘employee’ which has a legal meaning) consistently with the definition in the Northern Territory Act, which explicitly includes volunteers in its coverage.

Further discussion in the report on the broadening of the definition with the report says:

“This definition would mean that volunteers are owed the various duties of care owed to a worker. They would also have the duty of care of a worker to take reasonable care for their own safety and that of others, and to cooperate with the person conducting the business or undertaking. We consider it to be appropriate that they should have that duty of care, if they are undertaking work. Any concern that this may deter people from volunteer work may be minimised by noting the standard of reasonable care is to that applied for negligence under the criminal law.”

In the absence of explicit reference to volunteers in most current OH&S laws, it is recommended that the common law duty of care to, and by, volunteers in the carrying out of their volunteer duties is observed.

As the various reports to government are both lengthy and complex, all of the potential implications are not covered in this update.  Nor is it yet certain which recommendations will be adopted by government at the conclusion of the review. Further analysis will be provided when available.

For further information visit the Australian Government’s National OHS Review website.

Employers must manage mental health issues: Report

A UK study says employers should do more for the mental wellbeing of staff returning to work after sick leave. The report, Returning to work, the role of depression, said employees who accessed services like counselling and cognitive behaviour therapy returned to work sooner and made quicker recoveries. It said those returning to work after mental health episodes found it harder to adjust than those with physical conditions because line managers and colleagues had little understanding about depression and anxiety. The research, conducted by Loughborough University’s Department of Human Sciences for the UK Mental Health Foundation (MHF), compared return-to-work experiences of individuals suffering heart disease, back pain and cancer to those with depression and anxiety. The report said 45% of those with physical conditions experienced mild-to-moderate depression but were more worried about telling bosses about psychological issues than their cancer or heart disease, even though depression impacted on their wellbeing and ability to function at work.
Mental Health Foundation (SafetyNet Journal)

Flu pandemic preparedness

The World Health Organisation has declared that a flu pandemic is imminent. With Australia and the rest of the Southern Hemisphere heading into peak flu season there is an increased vulnerability here. Whilst there have been no cases of swine flu in Australia, companies and workplaces are being advised to prepare for the possibility of a genuine flu pandemic. Reps should keep up-to-date with the latest news, and think about the likelihood that this may be a hazard in their workplace.

The Australian Medical Association (AMA) has recommend workplaces adopt hygiene measures to battle the swine flu pandemic. According to the AMA, good personal hygiene will help reduce the transmission of swine flu in workplaces. It recommends that everyone in a workplace:

• washes hands regularly with soap and water
• uses alcohol-based sanitisers
• covers their mouths while coughing or sneezing
• disposes of used tissues appropriately.

Employers should be developing pandemic preparedness plans - in consultation with elected health and safety representatives. This would include procedures to identify any situations where the virus might be spread (for example employees returning from overseas travel) and appropriate controls. The employer should ensure that any employees returning to work (particularly from Mexico or US border-states) and experiencing flu symptoms see their general practitioner to avoid putting others at risk.

Comcare advises that organisations now consider reviewing and implementing their flu pandemic preparedness plan to prepare for a potential Swine Influenza outbreak. If your organisation has yet to develop a flu pandemic preparedness plan, Comcare suggests that you do so immediately using the Department of Prime Minister and Cabinet’s publication Pandemic Planning In The Workplace. (SafetyNet Journal)

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