The OHS harmonization process will revolutionise how individuals and organisations approach workplace bullying. If it doesn’t, workplace bullying will continue as a critical physical and psychological issue affecting individuals and organisations forever. 

So far in Australia, there have been relatively few prosecutions of organisations or individuals for health and safety breaches relating to workplace bullying. However, the recent successful prosecution of and employer and employees linked to the death of Brodie Panlock in Victoria may be the first step as Governments are starting to view deadly implications of the short, medium and long term and sometimes fatal impact of this insidious practice.

Despite publicity generated by Government Departments and strong media interest when there has been a death following a workplace bullying incident, I believe that many public and private sector organisations are being lulled into a false sense of security. Lack of data, small numbers of allegations dealt with quickly, or individuals not reporting incidents create an illusionary perception that ‘all is well’ and ‘we are doing enough.’

The tides of change are coming and as every day goes by, the tide is picking up strength just like a tsunami. What is this tide of change? In a nutshell, it is the Work Health and Safety Act that is due to be implemented in January 2012. Will it make a difference?

I believe that some of the changes will have a dramatic affect on how executive officers think about, and even commit themselves to the notion of work health and safety. They will have to about the physical and the psychological aspects if they are to meet their obligations and show that they can meet due diligence requirements.

Barry Sherriff and Michael Tooma have written an excellent, user friendly publication that is produced by CCH. I believe the way that they have interpreted the legislation has resulted in the publication of the book ‘Understanding the Model Work Health and Safety Act’. Their explanations of various definitions and what they actually mean gives credence to the belief that the tides of change are coming.

It is not intended to reproduce all the definitions covered by Sherriff and Tooma, but I am going to refer to few where I believe public and private sector agencies need to focus in terms of workplace bullying.

Officer

Executives might be blissfully unaware that changes to the legislation means that there is every possibility that they will be considered an ‘officer’ under the model WHS Act, and as such they must exercise due diligence to ensure that there organization complies with its duties under the legislation. Sherriff and Tooma point out that the term “officer” has the same definition as it has in the Corporations Act 2001. They also indicate that the definition is extended to apply to officers of the Crown by s. 244 of the model WHS Act. So, are you an officer? Sherriff and Tooma (2010:32) provide a list in relation to who is an officer.

Who is and who is not an officer in your organisation?

They also discuss due diligence and provide some discussion as to what is meant by due diligence. It is interesting to note that Sherriff and Tooma (2010:33) indicate that officers need to make themselves aware of changes to legislation and developments in case law as well as Australian standards.  Does this apply to workplace bullying? Well yes, it does. Courts, Commissions and Tribunals are continually making decisions that impact directly and indirectly on individuals and organisations. Whilst some organisations may cut back on training, it is essential that the Board and Executive officers be regularly briefed or involved in training sessions so that they can maintain currency in trends and issues and even decisions associated with workplace bullying.

Cutting back on training may even have a negative impact on how ‘officers’ demonstrate that they have met their obligations or fulfilled due diligence requirements.

Worker

Some things in relation to workplace health and safety might not change dramatically, but the definition of a worker is worth considering. As Sherriff and Tooma (2010:52) indicate, a person is a “worker” if they carry out work in any capacity for a PCBU. It is a broad definition, but they also indicate that it ‘includes work as an employee, a contractor, a subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company, an outworker, an apprentice, a trainee, a student gaining work experience, or even a volunteer.

Each of the ‘workers’ identified above can at any stage be involved in a workplace bullying incident so it is important that the safe system of work, including the prevention, detection and resolution of workplace bullying cover these people. The task is to read your current policy and see if the definition of worker meets this requirement. 

Does your policy cover those ‘workers’ in terms of workplace bullying?

Who is a person at a workplace?

There are some subtle changes to the meaning of ‘who is a person at a workplace?’ Given that workplace bullying can involve internal and external employees or customers, this is an important definition. As Sherriff and Tooma (2010:53) indicate, ‘the duty of care of a person at a workplace is intended to capture visitors to workplaces, such as customers and clients, passers-by, relatives and associates of workers, and trespassers’. 

Does your workplace bullying policy cover this definition?

What is a workplace?

Workplace has been mentioned several times. Workplace bullying can happen across a diverse range of locations and a key example of this is ‘cyber bullying’ or stalking (a criminal offence). It is important that employers and employees have a detailed understanding of this section. Sherriff and Tooma (2010:53) indicate that:

‘a workplace is defined as a place where work is carried out for a business or for an undertaking. It includes any place where a worker goes, or is likely to be, while at work (for example, a vehicle, a vessel, an aircraft or other mobile structure, any waters and any installation on land, and on the bed of any waters or floating on any waters). As such, not only are factories, shops, construction sites and offices workplaces, but roads, homes, national parks, schools, hotels, airports, aeroplanes, ports and ships are also workplaces when people are working there. Indeed, any place can be transformed into a workplace if people work there.’

So what is the relevance of that definition to workplace bullying? Workplace bullying can occur in any of the above places, and can be committed by employees of the organisation, or by employees of other organisations. How does your workplace bullying policy define workplace? Is it defined in your health and safety policy, or in some other document that employees hardly ever refer to? 

Action

Given that Courts, Commissions and Tribunals appear to have taken a broad view about workplaces and what is workplace related, it is important that employees understand the parameters in which they operate. For example, the birthday bash of work colleagues held in an off site location may be considered work related if an event that occurs at the party site is discussed in the workplace proper. 

Some organisations will allow employees to attend post event functions e.g. after a Conference, but ‘kick on events’ may occur after the post event functions. Depending on the circumstances, a ‘kick on event’ may be considered work related, or even a workplace.  From time to time, allegations of sexual harassment and bullying arise following such events, and in some cases, excessive consumption of liquor has occurred. 

Changes to the workplace, broadening of definitions and allegations of all forms of inappropriate behaviour can result in adverse publicity and damage to individual and organisational reputations. 

Is there a need for panic?  Well, no not at the moment. 

However, if I were an Executive in the public or private sector, I would want to make sure that I could meet all the obligations placed on me through the changes to the Work Health and Safety Act and I would to be able to demonstrate that I could meet due diligence requirements. I would not to be sitting in some Court, Commission or Tribunal trying to explain why I had failed in my duties as an ‘officer’. I don’t think like would like to be explaining to the CEO or to the Board about how my inactions failed the organisation.

At the same time, if I was an employee giving evidence in a Court, Commission or Tribunal as to why I had committed a breach of work health and safety, I would want to know the answers.

What should I do?

Executive officers should be getting briefings from their health and safety personnel.

Health and safety personnel should be working hand in glove with HR, Risk Managers, and other key personnel concerned with managing physical and psychological hazards in their organizations.

Employees should approach their unions or health and safety personnel to find out what their obligations are and what they have to do meet them.

Health and Safety policies and procedures, along with various HR policies should be reviewed to ensure that they meet the requirements of the Work Health and Safety Act.

In the meantime, publications such as that listed in the references provide a very good understanding of the key issues identified in this short paper.

Alternatively, there are a number of Safety Conferences being held between now and 2012 where key note speakers address the Work Health and Safety Act. I have been to several of these, and the Melbourne SIA featured the eloquence of Barry Sherriff of Norton Rose explaining in a no-nonsense manner just how the new Act is going to impact on organisations and individuals.

References

Sherriff, B. & Tooma, M. (2010) Understanding the Model Work Health and Safety Act. CCH AUSTRALIA LIMITED. Printed in Australia by McPherson’s Printing Group. ISBN: 978 1 921593 72 7.

The Government was well on its way to introducing a system that could help prevent tragedies such as the death at the Perseverance Mine.

According to the Minister in charge, the reforms introduce a more risk-based approach in place of prescriptive rules and regulations. They will reinforce that the onus is on operators to demonstrate an understanding of the hazards and risks of their workplace.

The changes will be implemented by the Resources Safety Division of the Department of Mines and Petroleum.

A ministerial advisory panel, containing representatives of Government, industry and unions has also been established to monitor their delivery.

The reforms will be funded by a series of levies, fees and charges from industry that can only be spent on safety issues.

Cost recovery in safety regulation is widely accepted and has already been successfully adopted by New South Wales and Queensland.

The Minister said close to $8million was expected to be raised this year for the reforms and the number of available mines inspectors almost doubled.

In a press release from the office of  the Attorney General Simon Corbell this new WorkSafe ACT will perform a crucial function and will combine the educational and compliance roles under the Commissioner for Work Safety.

The Government has committed $2.4m over the next four years to improve management structure and enhance the regulatory presence around the ACT. The funds will be used for additional inspectors as well as support staff.

This follows reforms the government has implemented to clarify the role of the work safety regulator in the community. The role of educator and regulator will be delivered by the new branch to be led by the Work Safety Commissioner. The Commissioner will be given the power to ensure people are complying with the work safety and workers compensation laws in the ACT.

Mr Corbell said the Government will now develop a detailed draft implementation plan in consultation with a range of key industry stakeholders.  “The Government will also undertake reviews of the new arrangements at both six and twelve months of implementation,” Mr Corbell added. “The Work Safety Commissioner has been successful in raising the profile of work safety education in the ACT. Those functions will now be expanded to assume the responsibility for regulation of work safety and workers compensation in the ACT,” he said.

WorkSafe ACT is about providing better enforcement, education and compliance in Occupational Health and Safety in the ACT.

It operates under the Safe Work Australia Act and has members from each state and territory as well as representatives from the Commonwealth. It also has members representing employer groups.

The key functions of Safe Work  Australia are to:

1. Develop national policy relating to OHS and Workers’ Compensation
2. Prepare a model Act and model regulations relating to OHS for adoption as laws of the Commonwealth, each of the States and each of the Territories
3. Prepare model codes of practice relating to OHS for adoption as codes of practice
4. Develop a policy dealing with the compliance and enforcement of the Australian Laws that adopt the approved model OHS Legislation, to ensure that a nationally consistent approach is taken to compliance and enforcement
5. Monitor the adoption of the approved model OHS legislation, the approved model OHS codes of practice and the approved OHS compliance and enforcement policy
6. Conduct research into OHS and Workers Compensation and publish its findings.

Under this major project WHSQ inspectors will be visiting every medium sized business in Queensland to check the systems they use to meet their workplace health and safety obligations under the Workplace Health and Safety Act 1995.

WHSQ aims to use the initiative aims to reduce the number of injuries and fatalities occurring in business, increase awareness and knowledge of workplace health and safety risks and improve the capability of mid tier businesses to effectively manage workplace health and safety risks in consultation with workers.

There are nearly 8000 medium sized businesses in Queensland, employing 18 per cent of the state’s workforce. While these businesses only employ about 1 in 5 of the workforce; they account for over 1 in 3 workers’ compensation claims lodged every year.

The Queensland Workplace Health and Safety Strategy 2004-12, sets targets for a reduction in fatalities and injuries. They include:

• 40 per cent decrease of work-related injuries, and 
• 20 per cent decrease in work-related fatalities.

Over the next few months half of Queensland’s medium sized businesses will receive a letter advising them of the initiative. If you are a medium sized business and you don’t receive a letter in March 2010, you will receive a letter later in 2010 advising you are part of the second wave.

The letter will be sent to both the business owner and the workplace health and safety officer of each medium sized business. The inspection will focus on assessing the effectiveness of your health and safety systems, and identifying opportunities for improvement. Inspectors will draw on their enforcement options under workplace health and safety legislation to address any health and safety issues identified.

Before the inspection takes place WHSQ are offering businesses the opportunity to attend one of the 50+ free workplace health and safety advisory sessions being held across Queensland. This enables businesses to learn more about effective safety management systems and ask questions about the upcoming inspections.

For more information please visit Worksafe QLD.

This is an important issue for anyone employing staff. It concerns the conduct of prosecutions in New South Wales and the defence of prosecutions under Occupational Health and Safety (OHS) legislation in all Australian States and Territories.

This is a welcome development that recognises the reality of a modern Australian business. While this decision was based on existing NSW OHS law, the Commonwealth and State / Territory Governments have agreed to enact harmonised OHS legislation and regulations (which have addressed some of our concerns) at the end of 2011.

The case relates to a Mr Kirk who operated a farm in New South Wales. He employed a small number of employees, including Mr Palmer who chose to drive a company vehicle directly down a sharp incline instead of using another safe private road and was killed. It was alleged by the WorkCover Authority of New South Wales that Mr Palmer’s employer Kirk Group Holdings Pty Ltd and its Director, Mr Kirk had failed to take reasonably practicable steps to ensure the health and safety of Mr Palmer.

The High Court quashed the original conviction and penalty against Mr Kirk and the employing entity.

There are a number of important outcomes from the decision:

• Availability and appeals – The OHS Act limits the rights of appeal of parties convicted by the Industrial Court of NSW of OHS offences. However, the Court ruled that parties are entitled to appeal jurisdictional errors to the Supreme Court of New South Wales.
• Identification of the defendant’s obligation – The prosecutor must properly identify and plead the ways in which the defendant ought to have acted to manage health and safety, not just plead that a failure to ensure health and safety has occurred.
• Basis of the Prosecution – was critical of the basis of the prosecution itself and highlighted that the proceedings involved an act of employee misconduct that was ‘inexplicably reckless’.

• substitute a new s 147 (Compulsory insurance — employers) and insert a new ss 147A (Compulsory insurance — offences), which applies to employers to whom s 47 applies, and 147B (Compulsory insurance policy — minimum premium following default notice); 
• substitute s 149 to provide for circumstances where an employer fails to maintain a compulsory insurance policy with an approved insurer; and 
• substitute s 162 (False information causing lower premium) and insert new ss 162A (Avoiding payment of premium — chief executive entitled to recovery amount) and 162B (Cease business order).

The Bill would also:

• substitute Chapter 12 (Notification and review of decisions), including to expand the notice requirements in regards to a reviewable decision and to provide for the internal review of certain decisions; 
• make amendments to Chapter 5 (Injury management processes), including inserting a new s 99A (Appointment of approved rehabilitation provider under personal injury plan); 
• amend s 190 (Provision of information to inspectors), including to shorten the time frame from 28 days to three days, within which an employer must provide certain information to an inspector following a notice; 
• insert new ss 200A (Record keeping) and 201A (Civil liability of executive officers); and 
• make other miscellaneous, minor and definitional amendments.

The Bill also proposes to amend the Workers Compensation Regulation 2002 No. 20 (ACT).
 
The Bill would:

• substitute Part 5 (Rehabilitation providers) to provide that deciding whether to approve a person as a rehabilitation provider, the Minister must act in accordance with the Guide — Nationally Consistent Approval Framework for Workplace Rehabilitation Providers; 
• substitute ss 98 and 98A, and Schedule 3 (Reviewable decisions) as a consequence of proposed amendments to Chapter 12 (Notification and Review of Decisions) of the Workers Compensation Act 1951 No. 2 (ACT); and 
• insert a new s. 8A (Calculation of total wages — Act, s 7A, def total wages).

Proper induction training is increasingly a legal requirement and employers have a formal duty to provide new employees with all relevant information and training relating to health and safety, particularly.

Every employer has obligations to its employees under workplace laws. In fact all people who work in the construction industry need an induction to Occupational Health and Safety before they can commence on a work site. All construction workers have a role to play in making sure that people are safe at work.

In turn there are also quite important obligations on the employees to follow safe working procedures and take reasonable precautions to prevent personal injury to themselves or to others. One of the proven ways to meet those obligations is to create an induction program that every new employee completes when they first start with the employer.

However, designing an appropriate and cost-effective induction package is a complex task. The induction programme has to provide all the information that new employees and others need, and are able to assimilate, without being overwhelming or diverting them from the essential process of integration into a team. A well constructed OHS Induction Program can pay dividends for the organisation and there are some simple steps that you can take to ensure your OHS Induction is worlds best practice.

• Agree on the outcome in mind. The term ‘induction’ is generally used to describe the whole process whereby employees adjust or acclimatise to their jobs and working environment. It’s not just orientation or socialising. The purpose of induction is to ensure the effective integration of staff into or across the organisation for the benefit of both parties. Research has shown that tailor-made induction programmes increase staff retention.
• Make the process uniform across the whole organisation but allow for changes to be made to content. The length and nature of the induction process depends on the complexity of the job and the background of the new employee. One size does not fit all – a standardised induction course is unlikely to satisfy anyone. However there should be no tampering with the legal binding instructions such as reporting an incident.
• Use proven adult learning techniques. There is nothing worse than pushing a new employee into a poorly designed and delivered classroom program that they find boring or ill suited to their learning style.
• Collect, collate and report. Any successful system will have good reporting components which articulate into auditable results. Control systems must be in place to ensure that all risks are addressed and the employee signs off that they understand the information they have received. One day you might find yourself needing to prove that a certain safety policy was delivered and learnt by an employee – how will you prove that it was?
• Seriously consider using an on-line or hosted induction program. Unless you have a large HR department at your disposal the amount of time and energy used in creating and maintaining a strong effective program can be prohibitive. Even larger organisations with more than 100 people are outsourcing their induction management now because they can deliver a uniform induction process at multiple sites. Other benefits include the employee or contractor completing some of the program before they arrive on site, no more classroom training, and low costs of changes.

Having an OHS Induction Program shows a commitment by management at the highest level. It also provides a strong compliance lever under governance obligations of the company.

Here are some things a good induction checklist should contain:

• Details of Emergency Actions 
  - evacuation procedures
  - location of fire extinguishers
  - nearest first aid kit
  - nearest emergency exits
  - isolating switches
• Responsibilities of the employee
  - reporting procedures
  - accident report form
• Personal Protection Equipment
  - issue and proper fit confirmed
  - monitoring equipment
• General Safety
  - Housekeeping
  - waste removal 
  - access 
• Policies and Guidelines 
  - Drug and alcohol
  - Machine operation

After scouring workplace safety documents and not found any satisfactory answers, a colleague and WHSO Scott Donoghue has raised this question, and we were wondering what your thoughts were on the subject. If you could share your knowledge, highlight any documentation or resources we’d be delighted to get your comments. With Scott’s training and experience in the industry, he mentioned that a ratio of 1:20 might be a realistic figure for larger corporations.

To add your comments please enter them below in the comments box.

This is the biggest single change to happen to OHS in a decade. Unfortunately we are going to have to wait until 2012 before a new national system comes into force. Right now the new Act is not planned for launch until January 2012.

The aim of the reforms is to ensure equal standards apply across the nation. Right now business owners, executives, company directors and safety professionals are daily faced with the task of complying with over 400 OHS codes and regulations. Everyone agrees that for a country with the relatively small population of Australia this represents an overly complex and arcane system that is overdue for change.

Reducing the differences between states will be an important issue for any business operating across a number of borders. The changes and alignment of regulatory black letter law will present opportunity for companies with a national presence to realize operational improvements as well as reduce professional costs.

National companies with operations in each state and territory have long complained about the unnecessary financial burden each OHS systems places on them for what they see as little benefit. The hope is that with the new OHS Act we will see a better set of heath and safety outcomes as well as economic cost improvements. Afterall, the true effectiveness of any OHS system is in the prevention of injury or death in the workplace.

If anyone has information about the reform or the process we would love to hear from you. As the new Act is developed and crafted we hope to keep each other up-to-date by sharing insights, opinions and news. Please help by passing along anything that you feel is of interest or would help others better understand the changes.