Work Health and Safety - Managing Risks - Essentials for Public Sector Managers

15 September 2014

Andrew Klein, Special Counsel

Doc ID: 3321787

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Overview of Seminar

1. Overview of WHS Duties

2. The position of ‘managers’ – where do they ‘fit in’ in the WHS context

3.Strategies to manage/reduce the risks associated with workplace bullying

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What are the risks?

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Overview of key duties under the WHS Act

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Person Conducting a Business or Undertaking (PCBU) and duty of care

The Work Health and Safety Act 2011 (WHS Act) applies a primary duty of care to a person who conducts a business or undertaking rather than the previous concept of an employer having the primary duty.

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Primary duty of care (s19)

• A PCBU must, so far as is reasonably practicable, ensure the health and safety of:

• workers (NOT employees only) engaged, or caused to be engaged by the PCBU; and,

• workers whose activities in carrying out work are influenced or directed by the PCBU;

while the workers are at work in the business or undertaking.

• Primary duty of care also extends to not putting other persons at risk from work carried out by the PCBU to the extent reasonably practicable (for example, visitors, members of the public)

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What is “Reasonably Practicable” – Section 18 of the WHS Act18 What is reasonably practicable in ensuring health and

safety in this Act:

reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

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What is “Reasonably Practicable” – Section 18 of the WHS Act

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

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What is “Reasonably Practicable”? A balancing act to some degree

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Who is an Officer?

• Officer defined as: A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Commonwealth is taken to be an officer of the Commonwealth for the purposes of this Act. (s247)

• Officers can be personally liable under the WHS Act

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Who is an Officer? (continued)

• Secretary

• Chief Executive Officer

• Deputy Secretary

• Branch Head ?

• HR Manager?

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Duty of Officers (s27)

• "If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation."

THIS DUTY CANNOT BE DELEGATED

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What is Due Diligence?

Verify and Audit

Ensure compliance with WHS duties and

obligations

Ensure PCBU has processes for receiving,

considering and ensuring timely

response to incidents, hazards and risks

Acquire and keep up-to-date knowledge of

WHS matters

Understand operations

and associated

hazards and risks

Ensure PCBU has use of

resources and processes for

risk elimination or minimisation(See s27(5))

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Duty of workers (s28)

"While at work, a worker must:

(a) take reasonable care for his or her own health and safety; and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers."

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Summary of all key duties

Primary Duty of Care

Person conductingbusiness or undertaking

Specific classes of dutyholders

Relevant StandardDuties associatedwith the activity

Nature of theactivity

Operation of the business orundertaking

Organisational decisionmaking and governance

Work activities (includingsupervision)

Circumstantial attendance atthe workplace (i.e. visitors)

Officers’ Duty of Care

Workers’ Duty of Care

Duty of Care of Others(i.e. at a workplace)

Reasonably practicable

Due diligence

Reasonable care

Reasonable care

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Penalties

Category Description Maximum Penalty

Category 1 Most serious cases - person is without reasonable excuse, engages in conduct that exposes an individual to whom duty is owed to risk of death or serious injury/illness and is reckless as to the risk of death or serious injury/illness

Corporation = $3 millionIndividual officers = $600,000 and/or imprisonment - up to five yearsWorkers and other persons = $300,000 and/or imprisonment up to five years

Category 2 High risk without recklessness - person fails to comply with duty and failure exposes individual to risk of death or serious injury/illness

Corporation = $1,500,000Individual officers = $300,000Workers and other persons = $150,000

Category 3 Without recklessness or high risk of serious harm - person fails to comply with duty

Corporation = $500,000Individual officers = $100,000Workers and other persons = $50,000

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What are the duties, roles and responsibilities of managers (who are not officers) ?

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Where do managers (who are not officers) fit it?

• Most managers are probably unlikely to be ‘Officers' for the purpose of the WHS Act, because (as previously covered), 'officer status' is reserved for those (as per section 247 of the WHS Act) who:

make, or participate in making, decisions that affect the whole, or a substantial part, of the business or undertaking...

• Therefore, most managers are more likely to be 'workers' for the purposes of the WHS Act

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What duties/roles/responsibilities do managers (who are not officers) have under the WHS Act as workers?All 'workers', including mangers, must:

• Take reasonable care for their own health and safety

• Take reasonable care that their acts or omissions do not adversely affect the  health and safety of other persons

• To comply, so far as the worker is reasonably able with any reasonable instruction given by a person conducting a business or undertaking to allow the person conducting the business or undertaking to comply with the WHS Act

• To cooperate with any reasonable policy or procedure of the person conducting the business or undertaking which relates to work health or safety and that has been notified to workers

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What additional responsibilities do managers have under the WHS Act?

• Managers are in a different position to other workers because they are leaders in the workplace

• Because they are leaders, managers play an important role in influencing workers to value health and safety by changing unsafe work behaviours and clearly setting what are the accepted safety standards in the workplace

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What additional responsibilities do managers have under the WHS Act? (continued)

• Managers are the individuals who are ultimately responsible for: advising on and implementing and enforcing the relevant policies/codes of conduct that will ensure a safe and healthy workplace. Therefore the role of managers is VITAL in ensuring a safe and healthy workplace and compliance with the WHS Act

• However, there are obvious challenges, because managers often face competing priorities, or conflicting direction, that can influence the amount of time, resources and energy they can allocate to health and safety

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Workplace Bullying and Harassment:Managing the risks

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Workplace Bullying:The importance of prevention/the risks

• Obvious reason - basic workplace dignity

• Risk of psychological injury

• Failure to prevent an injury creates the following risk of potential legal actions:

• prosecution for breaching WHS legislation

• claim in new Fair Work Commission (FWC) jurisdiction

• Comcare claim

• breach of anti-discrimination/equal opportunity legislation

• vicarious liability in civil proceedings (ie, negligence claims)

• Potential criminal prosecution (Brodie's law )

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Workplace Bullying:The importance of prevention/the risks

Also the risk that a bullying ‘culture’, or perception of such a culture, develops in the organisation.

Once such a culture becomes entrenched it is very resource intensive and, apart from anything else, very expensive to investigate it/understand it/get rid of it, see for example:

• Defence ($6M)

• CSIRO ($4M +)

A bullying culture provides fertile ground for psychological injury.

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The importance of managing the risks appropriately: Some recent contrasting case law

Swan v Monash Law Book Cooperative - June 2013

• Conduct included throwing a book and calculator at the employee, yelling, demeaning communications, demand to memorise booklists on threat of termination

• Employer sat on initial complaint, and employee eventually resigned

• Medical evidence of major depressive disorder

• Court found that the employer had failed to discharge its duty of care to provide a safe system of work

• Award of $600K ($300K for economic loss and $300K for pain and suffering)

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Recent case law (continued)

Harris v WorkPac Pty Ltd - FWC 30 July 2013

• Ms Harris held position of Recruitment Team Leader - 8 years service

• Another employee gave an exit interview alleging bullying by Ms Harris, and following a brief process, Ms Harris's employment was terminated summarily

• It emerged that the alleged bullying was historical (some up to 17 months), that the conduct allegations were vague, and that the departing employee had raised issues previously but nothing had been done by the Employer

• FWC found that the termination was harsh and unfair

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Recent case law (continued)

Per Commissioner Cloghan:

"In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct.”

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Why are managers so important in controlling bullying related risks? 1. Have ‘local knowledge’ (they know the politics and the

relationships) and best chance to control an evolving situation at the ‘coal face’.

2. Can provide empowerment as they have power to effect change.

3. Can provide a ‘reality check’ to parties involved because they will likely have observed the relevant behaviour first hand.

4. Can help to formulate real solutions that have a chance of working because of their ‘local knowledge’

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Two Things that managers can do to reduce the risk of a bullying related injury

1.BE PROACTIVE IN DEALING WITH ISSUES/IDENTIFIED RISKS

2.HELP TO SHAPE/CHANGE THE CULTURE OF THE ORGANISATION

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Options for a proactive response• Proceed with caution, but proceed and engage

• Classify behaviour

• ‘Horses for Courses’ –a sensible, practical and proportionate response

• Apply common sense as far as possible (noting the relevant reporting imperatives)

• Formal vs informal response

• Escalate vs deescalate

• Manage up and across as necessary (don’t act in isolation)

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The dangers of doing nothing after being put on notice bullying or harassment may be occurring• Breach of WHS obligations, by not doing all that is

reasonably practicable to eliminate or minimise identified risk

• Breach of relevant procedures/policies, eg, requirement to report in CRAMS

• Creating a perception of not taking risk seriously, or trivialising risk

• Creating a culture, or the perception of a culture that tolerates bullying

• What was a minor work place issue results in a psychological injury

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The dangers of doing nothing after being put on notice bullying or harassment may be occurring (continued)

• Lack of current investigation/action gives more scope for the FWC to become involved, and decide/control outcome

• Lack of contemporaneous documentation of facts of the matter

• Issue is not 'closed off' by a proper investigation and becomes a 'loose end' (that may cause difficulties going forward, for example by becoming a factor in an adverse action or unfair dismissal claim)

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CULTURE vs STRATEGYCulture wins every time

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Managers can establish/ change the culture of an organisation• Model behaviours of respect and courtesy

• Have procedures in place to adequately monitor staff behaviour (eg, regularly survey/consult with staff informally/formally)

• Promote an inclusive and respectful culture (in the context of the environment you are operating in)

• Be proactive in dealing with complaints and observations of potentially bullying behaviour in accordance with policies make sure that, as far as possible, staff know where ‘the line’ is and when it has been crossed

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References

• Comcare website

• accessible via www.comcare.gov.au

• Safe Work Australia website

• accessible via www.safeworkaustralia.gov.au

•Fair Work Commission Website

• accessible via http://www.fwc.gov.au/

Questions?

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Andrew KleinSpecial Counsel0408 550 985aklein@rk.com.au