It’s hard to believe that it has been more than a year since we held our well attended mental health in the workplace breakfast seminar at the RACV Club.
We have seen some important developments in workplace safety and mental health over the last year. It seems that bullying and harassment has been one of the most significant reasons for claims of exposure to psychological injury and mental health risk. Other reasons include stress and pressure, particularly where workers encounter performance and personal conflict issues, and exposure to traumatic events.
In this update we cover five major developments in workplace safety and mental health which may be of interest to your WHS, risk and HR functions in assessing whether you have key risk areas covered, and what we expect to see as the focus on workplace mental health continues into 2020.
Bullying Safety Prosecutions
This recent case before the South Australian Employment Tribunal involved a supervisor squirting flammable liquid onto a young first year apprentice’s boot at a client’s site and then lighting it. More liquid was subsequently squirted onto the apprentice’s clothing, as the supervisor chased him around the lunchroom, igniting his shirt. A second supervisor then squirted more liquid onto the apprentice’s shirt, producing more flames. Both supervisors were sacked and charged by SafeWork SA with the most serious WHS offence of recklessly exposing an individual to the risk of death or serious injury or illness. Both supervisors were convicted and fined as individuals for category 1 prosecutions of the offence of reckless endangerment.
The PCBU employer was convicted and the Tribunal imposed a discounted fine of $15,000 for the PCBU’s early guilty plea for failing to address bullying and harassment through policies and training (the maximum fine was $500,000). Cooperation with the regulator, contrition and remorse, swift dismissal of the two supervisors and extensive steps to improve its safety policies and procedures after the incident were relevant mitigating factors in the quantum of the fine.
In Victoria, there were five successful prosecutions over the last 12 months for bullying behaviour in the workplace which exposed employees to risk to their health and safety, including stress, anxiety, post-traumatic stress disorder and depression.
Unfortunately, the above is not an uncommon scenario, having advised clients faced with similar incidents involving young apprentices subjected to initiation ceremonies which exposed them to significant risk of serious or even fatal injury. Our early legal advice following the incidents assisted in addressing the unsafe behaviour immediately, which included taking steps to terminate employment and being in a position to demonstrate to the safety regulator that the employer had in place procedures and training to prohibit and deter this behaviour. This served to prevent any prosecution against the employer.
Key watchouts
There are several key points we recommend businesses take into account to prevent and respond to bullying behaviour which exposes workers to risk of physical and psychological injuries:
- Ensure an appropriate workplace behaviour policy is developed and implemented, and that workers are trained on it (not just at the time of induction but also at regular intervals eg yearly).
- Explicitly prohibit and deter workers from engaging in unsafe bullying, intimidatory, aggressive and abusive behaviour that exposes workers and others to physical and psychological harm by addressing such behaviour when it occurs and taking action (eg further training and disciplinary action, which may include terminating the wrongdoers).
- Workers are advised on how to complain/report the conduct and that there are dedicated people in the business who consider, respond to and investigate (as required) such reports and the remedial steps taken.
- Ensure the safety of all relevant people whilst an investigation is underway.
- Make sure workers who are young, non-English speaking or have limited English language skills understand the policy and training on what behaviour is unsafe and not permitted in the workplace and how to raise a complaint.
- If policies and procedures need improvement following an incident or investigation, and consultation or other steps need to be actioned to prevent a re-occurrence (eg further training), ensure these things are done.
Fatigue management and long working hours
A recent coronial inquiry in Tasmania has ruled that a worker’s speed and inattention whilst driving significantly contributed to her death in a car crash which occurred at the end of a night shift (the worker failed to negotiate the arc of a sweeping left-hand curve and crossed the highway’s double centre lines into the path of an oncoming truck). She was employed as a carer in a residential aged care facility, and there was no evidence of any signs of fatigue in the week leading up to the crash. The Australian Nursing and Midwifery Federation (Tas Branch) alleged that the worker worked a double shift the night before the crash, however the employment records did not support this allegation.
This case serves as a poignant reminder to keep our people safe from fatigue risk, ensure fatigue management procedures are implemented to minimise the risk, and our people are trained in what to do and how to raise fatigue concerns. Proactive steps should be taken by businesses to ensure checks and balances in rostering shifts and hours of work, identification of potential exposure to fatigue and processes to manage this risk (eg sufficient breaks/rest periods and provision of transportation home, if required).
If appropriate processes and procedures are not in place to manage fatigue, there is a real risk of prosecution for breach of statutory WHS duties. Further, we also note that developments in workplace manslaughter (which we cover below) may be applicable here.
Mental health – the Productivity Commission
An Australian Government Productivity Commission inquiry demonstrates that mental health has community, political and parliamentary attention. Given that we spend a significant part of our daily lives in the workplace, and work often overreaches into our personal lives, mental health is clearly something workplaces need to take seriously and identify, assess and manage effectively.
The Productivity Commission’s Draft Report Overview & Recommendations into mental health was released in October 2019 and is open to public consultation until 23 January 2020.
One of the key points in the draft report is:
“In any year, approximately one in five Australians experiences mental ill-health. While most people manage their health themselves, many who do seek treatment are not receiving the level of care necessary. As a result, too many people suffer additional preventable physical and mental distress, relationship breakdown, stigma, and loss of life satisfaction and opportunities that in any year about one in five Australians experiences mental ill health, and many of those who seek treatment don’t receive the necessary level of care.”
The draft report calls for explicit inclusion of mental health in the workplace health and safety law and provides that:
- The model WHS laws (and the WHS laws in those jurisdictions not currently using the model laws) should be amended to ensure psychological health and safety in the workplace is given similar consideration to physical health and safety; and
- Workplace health and safety agencies in conjunction with Safe Work Australia should develop and implement codes of practice to assist employers, particularly small employers, to better identify, eliminate and manage psychological risks in the workplace.
Recommendations in the Final Report on the Review of the Model WHS Laws (issued in December 2018) included the development of additional regulations on how to identify psychosocial risks in the workplace and the appropriate control measures to manage those risks. Any final recommendations in the Productivity Commission’s report may give further impetus to a legislative response to expressly address psychological health and safety in WHS laws.
Risk assess renovations
Astoundingly, 2020 is nearly upon us! As our businesses continue to grow and progress, safety often gets overlooked. KHQ recently relocated to a newly constructed fit-out at 600 Bourke Street, Melbourne. It was meticulously planned, and safety considerations were an integral part of that plan.
A recent case in the NSW Industrial Relations Commission is a salient reminder of the importance of considering safety during refurbishments.
In that case, a PCBU told workers at the Concord Centre for Mental Health that it planned to refurbish two units at the premises, including the intensive psychiatric care unit that housed patients with significant behavioural disturbances and potential to exhibit violent behaviours. It said it intended to replace the units’ staff counters with fixed “touch down” desk spaces, where patients could read the newspaper or use a computer or telephone, and “freely access” staff, improving the unit’s therapeutic benefits. A SafeWork NSW inspector attended the centre and issued improvement notices, requiring the PCBU to risk assess the renovation. The inspector issued a prohibition notice blocking the PCBU from removing the counter in the intensive psychiatric care unit. She said in the notice that the “overwhelming” majority of workers she interviewed about the issue felt the PCBU did not properly consult them on the renovations, and its risk assessment resulted in a higher level safety control being removed.
The PCBU sought an external review of the prohibition notice and told the IRC that the type of counters it wanted to remove had been shown to become a focal point for patient aggression. They encouraged patients to loiter to get their needs met, creating opportunities for violence and risk of entrapment. The PCBU said the proposed space would help build therapeutic relationships between staff and patients. Giving the latter access to staff without physical barriers gave them a sense of control and improved treatment outcomes.
The Commission held it was clear the PCBU did not give specific consideration to how the proposed renovations would impact on staff safety until staff protested against them and rejected the PCBU’s argument that retaining the counter posed a greater risk to staff safety than removing it. The PCBU’s external review application was dismissed.
Businesses should consider safety risks as part of the planning for renovations and premises moves, including consultation with workers in the planning phase to ensure any valid safety concerns are considered and addressed long before the designs are finalised or the fit out contractor commences work.
Workplace Manslaughter
Perhaps the biggest ticket item in Victorian workplace safety rounding out the end of 2019, and which will be forefront in the minds of owners of businesses going into 2020, was the introduction of the Victorian Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 which very recently passed through parliament unamended and is awaiting royal assent, and will commence on a day to be proclaimed or 1 July 2020 at the latest. This Bill provides for fines of up to 100,000 penalty units (currently equating to $16,522,000) for bodies corporate, and jail terms of up to 20 years for company officers, who negligently cause a work-related death. The Explanatory Memorandum to the Bill provides that the new offence of negligently causing a work related death captures negligent workplace conduct by an organisation or officer that causes a person to be injured or contract an illness (including a mental illness) that later causes the person’s death, in line with general principles of causation.
This development makes it imperative that companies and officers implement effective workplace behaviour policies, procedures and training to prevent unsafe behaviour which may expose workers and others to risks of fatal physical and psychological injury.
Our team is experienced and active in advising on safety matters in a range of industries including construction, infrastructure, health, manufacturing, retail, recycling and transport and logistics.
To discuss the above topics more or shoot the breeze over anything health and safety related, please give us a call using the details below.
This article was written by Gina Capasso (Principal Solicitor) and Chris Gianatti (Director).
