There is little doubt from reading the myriad of comments made on various sites that workplace bullying and harassment continues to fuel discussion.

In fact, I have just finished reading a number of comments made by some obviously very traumatised workers from the public and private sector. There are some common threads relating to:

• management and communication practices
• failure to address the issue
• lack of knowledge about where to go for support on resolution options
• workplace culture
• apparent failure to treat workplace bullying and harassment as a work health and safety hazard

Some of the comments also appeared to indicate that some of those targeted had been subjected to bullying for periods of up to three years, and some had left their employment because of the bullying behaviours.

Words of wisdom and wit are added, and in some cases, the discussions raise new issues, or simply reaffirm old issues.

It does seem that many of the discussions reinforce the ideology that workplace bullying and harassment may be one and the same in the minds of some, and completely different (although related) in the minds of others.

The past two years have seen considerable discussion on the emergence of the new harmonised work health and safety laws that are coming into effect in some States as of the 1 January 2011.

Will it be a case of more of the same in relation to organisational responses, or will the various discussions that have occurred prompt a new approach?

Sins of the past, penalties of the future

It seems that many organisations have well documented policies and procedures in relation to the prevention, detection and resolution of workplace bullying. However, it also seems that despite organisations espousing commitment to a workplace free from bullying and harassment, it is still happening.

It might be the case the officers are not aware of the extent of bullying because individuals have no confidence in internal reporting systems, or they have seen how some targets/victims have been treated.

Recent discussions on various forums suggest that workplace bullying and harassment is very clearly defined in literature and through to Codes of Practice. However, discussions with workers gives a completely different idea. In some cases, reasonable management actions are perceived by some as unreasonable, whilst in other cases, bullying is seen as a way to manage people.

Take this case. Recently, I was discussing bullying with a new acquaintance. He said “Well, how do you get them to work if you don’t bully them?” to which I replied “There must be other ways of getting them to work.” His response was “No, you have to bully them, they are very lazy people.”

After a long and involved discussion, it appeared that what this person was really talking about was using assertive language to motivate or direct workers to undertake their allocated tasks.

What one perceives as reasonable, another may construe as unreasonable e.g. bullying. It is absolutely critical that a common understanding is developed regarding the definition of bullying as it applies in your workplace. It is also critical that workers have the face to face opportunity to discuss (without fear) their understandings of the definition. It is not much point having a definition that workers think means one thing, when it really means something else.

It is important that systems or processes be in place to maintain currency of knowledge of trends and issues, and of Court, Commission or Tribunal decisions that may impact on your policies and procedures.

Imagine a situation whereby you have been called to appear in a Court, Commission or Tribunal and you are confronted with evidence that shows that your organisational policies are out of date, and not only that, those who have responsibility for developing and presenting workshops on bullying, have not kept up to date.

So where do the sins of the past come in? Despite the existence of reporting systems and processes e.g. complaint or resolution processes, it seems that there are a number of workers who lack confidence in those systems. Experience suggests that when some workers understand what is involved in the resolution processes, they decide to do nothing. In some cases, they go away and start making more detailed notes, biding their time until an opportune moment presents itself.

I would suggest that this opportune moment will occur after the 1 January 2012.

The penalties of the future may result from those cases that are slowly gaining momentum now. Even though workers have not taken any action other than seek advice, it may well be the case that over a considerable time, they have been bullied, they have been gathering evidence, taking advice, or seeking support and just waiting.

Will these cases come to finalisation in a Court, Commission or Tribunal? It depends on a number of variables such as the:

• willingness of the individual to take action
• how resilient they are
• whether they understand what is actually involved
• what evidence they possess
• whether they seek legal advice

At this stage, the criminal standard of proof is not required i.e. beyond reasonable doubt, unless criminal offences are involved and this could include stalking, sexual assaults or other acts of violence. In some cases, the victim/target might make the decision not to report the criminal acts and only want action taken in relation to the ‘bullying behaviours’ where a lesser standard is required i.e. civil standard – on the balance of probabilities.

The resultant penalties than could occur might be more than financial or jail terms. Damage to individual or organisational reputations may also occur.

Mitigating the risks

Managing workplace bullying and harassment is not easy especially if you have no proactive or preventive strategies in place.

You need to know what policies, procedures and strategies your organisation has in place. Workplace bullying and harassment incidents can occur even when some of the basics have been addressed.

You might be in an organisation where a workplace bullying or harassment incident has been reported.

How many times have you heard the comment “You could see that coming”. Why was it allowed to escalate?

Some basic questions

How important are risk assessments?

I would say extremely important provided you ask the right questions, and know what the right questions are to ask. The following questions can be used as prompts to help guide when preparing for the risk assessment.

A number of the questions use the traditional who, what, when, why, where, and how model. It is important to understand that a question framed around these words may lead to a response that requires another question.

For some officers and workers, the following questions might push a few boundaries. That is the intention so that you can at least try to plan a response if these questions are put to you in a Court, Commission or Tribunal.

Does your organisation have proactive and preventive strategies that help you answer the following questions?

• Do you avoid or defer difficult conversations about workplace bullying and harassment?
• Do you resist the need to resolve counterproductive behaviours before they escalate into workplace bullying and harassment?
• Does your workplace have a culture of tolerance or acceptability when it comes to workplace bullying and harassment?
• Are you confused about what is and what isn’t workplace bullying?
• Do you know what is and what isn’t reasonable management?
• How does your workplace organisation define counterproductive behaviours that could cost you your job?
• What price do you put on your personal reputation or that of your organisation?
• How has workplace bullying and harassment been addressed in your risk management, business continuity, health and safety, audit or fraud and corruption prevention plans?

‘Officer’ questions

You may have some very good policies in place to prevent, detect and resolve workplace bullying and harassment. The advice that you get about the incidence of workplace bullying and harassment may not reflect the true situation.

Changes in work health and safety legislation, and increased publicity about workplace bullying and harassment could mean that different questions will be asked.

Litigation in Australia is taking some interesting approaches to age old issues. Individuals are engaging legal professionals who will use various strategies to test your knowledge in a Court, Commission or Tribunal. The responses that you provide could very well determine your current and future employment. Adverse publicity generated because you were not prepared could affect your personal credibility and reputation.

The following questions were developed as indicators of what could be asked in a Court, Commission or Tribunal. Of course, the media might also take it upon themselves to ask you the same questions.

How much:

• income did your organisation earn as the result of a single workplace bullying or harassment incident?
• did workplace bullying or harassment contribute towards achieving the aims and objectives of your organisation?
• business does a workplace bullying or harassment incident generate?

How does workplace bullying or harassment:

• improve customer service?
• increase productivity?
• benefit shareholders, investors or taxpayers?
• add value to your brand name or reputation?

What:

• does the preparation, dissemination, storage and archival of workplace bullying or harassment records cost your organisation?
• could your employees be better doing if they weren’t spending time addressing workplace bullying or harassment?
• are your competitors doing whilst workplace bullying or harassment is taking place in your organisation?
• could your employees be doing more productively if they were not involved generating paperwork for Court, Commission or Tribunal hearings?

How does your organisation benefit from the adverse publicity generated from workplace bullying or harassment?

What are the short, medium and long term effects on other employees who are witnesses in grievance and tribunal proceedings?

Who and what are you defending?

What will have you achieved at the end of it?

Will any of your actions result in allegations of unfair dismissal?

Does everyone in your organisation know and understand the personal consequences of workplace bullying or harassment?

Do you know how to respond to these questions?

Do you know why you should be able to respond to these questions?

How will you respond if your claim or allegation is to be resolved in a Court, Commission or Tribunal?

Will you be prepared?

Will you respond in haste and pay the penalty?

Will your actions result in findings of unfair dismissal, breach of employment contract or financial penalties being imposed by a Court, Commission or Tribunal?

These are very important questions that might be put to you in a Court, Commission or Tribunal. These questions could only be the start of what you might be confronted with.

There might be a number of other questions that will be asked of you depending on how you respond to these.

If you are reading this as either a target/victim or as a person who may have been accused of being a workplace bully or harasser, you might like to consider these questions.

Do you know:

• what to do when you have been bullied or harassed?
• what to do if you are accused of being a bully or a harasser?
• how to defend an allegation of workplace bullying or harassment?
• know what questions to ask?

Does your organisation have a workplace bullying or harassment detection, prevention and resolution policy?

If so, do you know where to find it or access it?

Sometimes, you may need to lodge a workplace injury claim because of the workplace bullying or harassment. You may also seek advice from a legal professional.

As either a target/victim or even alleged bully/harasser, you may not realise that the medical and legal professionals will ask you questions.

Do you know what type of questions:

• you will be asked when you seek medical assistance?
• your legal professionals will ask you?

Workplace bullying and harassment has direct and indirect implications on a wide range of people. It is not just a workplace issue. You may seek advice, guidance or support from your family, friends and associates.

Do you know what to say to your family, friends and associates?

If you lodge a workplace injury claim, an investigation will be conducted. You may find this process confusing or even threatening.

Sometimes the investigation will be conducted when you are still traumatised by the incident or even when you are receiving medical or psychological support.

• Do you know:
• why investigations are conducted?
• how the investigation process works?

Do you know:

• what to say to support your claim?
• what not to say, and why?

You may work in an organisation where workplace bullying or harassment is rife. The more likely there is sexual content in the incident, the more chance the media will be interested. Even if you are not directly involved, the media might ask you for your views.

You might even take it upon yourself to use one of the popular social networking sites to discuss the incident.

Do you know how to respond to media interest in workplace bullying or harassment allegations?

Employment conditions

When you started with your organisation or even when you were promoted, you may have attended an induction program. You might have been asked to sign some paperwork.

When you started work, you may not have had time to think about all the paperwork. Practical experience tells me that you need to think about these questions.

• Do you have a current job or position description?
• Do you take part in the performance management process?
• Do you know and understand your conditions of employment (including compliance with Codes of Conduct)?
• Do you know why these questions are relevant for preventing, detecting and resolving workplace bullying?

Legal professionals will ask you many questions. They will generally want to know about your conditions of employment, your workplace policies and procedures and many other issues that you may not realise are relevant.

OHS HARMONISATION

Many of you know that the OHS Harmonisation process has been underway for some time. It has been stated that the new Work Health and Safety Act 2012 will come into effect on the 1st January 2012. There are some important changes in this legislation that you need to be aware of. It does apply to the public and private sector.

The new Act may have some impact on how you respond to allegations of workplace bullying and harassment. In the worst case scenario, you could face prosecution for a breach of workplace health and safety and perhaps even imprisonment. You need to think about your preventive and proactive strategies to reduce this risk. You should be able to answer the following two questions.

Will you be an ‘officer’ under the Work Health and Safety Act 2012?

Do you know what you will have to do to meet your obligations and show that you can meet due diligence requirements?

The prevention, detection and resolution of workplace bullying and other forms of inappropriate behaviours depends on the action that you take. The questions and issues that you have been reading about are only part of the response. You should be aware that there are many left field questions that I have not included. You should know that your answer may provide a lead as to another question.

Trends and issues

Despite some interesting media articles regarding allegations of counterproductive behaviour resulting in out of Court settlements, there is little publicly available information on specific cases. From time to time, some cases are published on the Fair Work Australia website. However, a perusal of media

websites and other support networks, and even sites such as LinkedIn, HR Daily or Human Capital Online, indicates that there is increased commentary on what organisations and individuals should do to prevent or resolve workplace bullying.

Recent discussions also raised the issue of risk assessments for people wanting to work at home, and whether or not domestic violence should be considered. There has been some interesting discussions on how far a workplace extends, what should be considered and what are the implications.

Over the past two years, there have been some interesting reports have been prepared following Reviews or investigations into allegations of bullying. It is in my view, important for public and private sector organisations to at least read these reports and see whether or not there any issues that warrant attention.

Where to in the future

It is not long until the 1st January 2012 and despite all the discussion about whether or not the legislation and regulations will actually become operative from that date, workplace bullying continues to be a concern of workers across the public and private sector.

Waiting for the implementation to occur without actually addressing existing issues about bullying may not provide officers with an excuse. At the same time, workers can play a key role in preventing and detecting workplace bullying.

Standing up and speaking out about bullying may be frowned upon in some workplaces. However, given the physical and psychological trauma that can occur, and the financial costs, it is important to take a preventive role.

I have indicated in previous articles that the following systems and processes should be evident and supported through documentation:

• Clear understanding of due diligence requirements
• Clearly defined responsibilities for Officers
• Commitment to work health and safety – evidence that the CEO and other executives do site inspections – safety leadership
• Risk management policy and procedures
• Copies of risk management plans, directives, instructions, training records
• Workplace bullying policy and procedures
• Copies of documentation, evidence of consultation, risk assessment
• Training for all workers including executives
• Good support networks
• Current list of Contact officers, training, brochures, contact numbers
• Regular reviews of policies and procedures that take into consideration changes to legislation, Court/Commission or Tribunal decisions, and Review findings
• Investigation processes
• Management and Supervisory training in relation to conflict management/resolution
• Management reviews and audits regarding effectiveness or otherwise of various policies and procedures e.g. risk management and workplace bullying

Lessons to be learned

There is little doubt that no matter how hard one tries, one might end up involved in a workplace bullying incident. It is entirely possible that you could be the:

• victim/target,
• one accused of bullying behaviour

• officer/s of an organisation where bullying has occurred
• medical or legal professionals providing advice to the victim/target, the alleged bully or even to one of their family members
• family/friends or associates of the victim/target or the alleged bully
• investigator/s
• media

So, if you fall into one of those categories, you should be prepared. You might have some good systems and processes in place at your workplace. However, you might also like to consider the following:

• Prepare for a day in Court
• Practice responses
• Create scenario based training with role plays
• Test organisational documentation
• Anticipate worst case scenarios and develop risk management plans
• Address workplace bullying through risk management, fraud and corruption plans, audit plans, safety plans
• Identify left field questions
• Engage professionals to assist in developing appropriate responses
• Conduct „spot? audits and checks in the workplace
• Demonstrate evidence of consultation
• Know how risk assessments were conducted and what was considered
• Understanding what is due diligence and what is required
• Do your planning

Summary

It is important to know exactly what your level is risk exposure is in relation to workplace bullying. I would suggest that understanding systems and processes is only part of addressing the issue. It is important to understand why people are not reporting the incidents.

As workplaces change, and individual perceptions about what is and what is not bullying, it pays to constantly evaluate the level of exposure.

Proactive strategies and management practices might not completely eliminate workplace bullying. However, it might help to mitigate any fallout that may occur when an incident occurs.

Bernie Althofer AFAIM 2011 ©

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Unsafe storage has resulted in an industry-wide warning from WorkSafe after dairy products manufacturer, Fonterra Australia Pty Ltd was today convicted and fined $300,000 in the Melbourne County Court.

WorkSafe’s General Manager for Operations, Lisa Sturzenegger, said all businesses had to ensure they could safely store bulk products or other stock.

Fonterra Australia pleaded guilty to one charge* after a forklift driver died at its Stanhope cheese factory in September 2009.WorkSafe’s investigation found the man died when a one tonne bag of salt fell on him.

Judge Frank Gucciardo said the system for stacking bags at Stanhope was unsafe.  

He said it was not until after the man’s death that a safe racking system was put in place and a written procedure developed. Had it not been for its guilty plea, Fonterra would have been fined $400,000.

WorkSafe’s investigation found the practice of stacking bulk salt bags at Stanhope was unsafe as the tops of lower bags may not be sufficiently level to safely accommodate those on top.  

The danger was such that if the surface of a bag was not level, even a small disturbing force could cause the stack to topple.

Marking the start of WorkSafe Week Ms Sturzenegger said common safety failings involving routine tasks cause the overwhelming majority of workplace injuries and deaths.

“In this case the bags of salt were delivered and stacked every week. The lesson for others is to understand the potential safety issues, consult with the workforce and fix problems.

“It’s extraordinary how quickly things can change in the workplace so it’s important that regular reviews are carried out and ensure people stay up-to-date.

“When disaster strikes, there’s no going back. Fixing issues after the event is not the solution.

“Incidents like this one hit families, businesses and communities hard. They have long-term-effects.

“Getting safety right means no one has to go through what this family and this company have had to,” Ms Sturzenegger said.

My passion for safety began when I was a refrigeration and air conditioning mechanic and an industrial accident left me partially paralysed for six months. Since then I have been a passionate advocate for the safety of installers, service personnel and end users. In my experience a lot of safety problems are caused because people don’t think about installation, maintenance or end-use. I have seen 100kg air conditioning compressors installed on laser light roofing which is not load rated to hold this weight. No thought went into the long-term durability of the unit, safety of the end-user or safety of maintenance personnel. Installers use cranes, hoists, lifters and other equipment to safely lift condensing units/compressors into position. However, installers need to think about future maintenance requirements because improperly positioned units can place servicing personnel at risk.

Under the 2008 Plumbing Regulations, equipment must be accessible for service and maintenance. If the Plumbing Industry Commission’s investigators consider maintenance access is unsafe, the investigators will issue rectification notices, and the person who signed the certificate of compliance will have to pay to fix the issues. It’s always more expensive to rectify than to do it safely in the first place. One recent Plumbing Industry Commission investigation of an air conditioning unit installed on a house resulted in a principal contractor being held responsible for rectification costing more than $100,000.

Tips for safe installation of air conditioning units are:

1. Put yourself in the shoes of the maintenance person. Position the unit so it’s easy to access for installation and future maintenance.

2. Think about what you are installing it on – make sure the surface is secure and can safely hold your weight and the weight of the equipment.

3. Think about how to get the equipment to the height you need including servicing equipment.

4. Think about how to securely fasten the unit to the base structure and be prepared for bad weather conditions. 5. Be safety conscious. Ensure you walk away from each job and so do future service personnel.

Please feel free to share any comments or experiences.

Hypothetical Scenario:

Mr Benjamin William Jones is the CEO of MAGIC, a large, state based organisation that provides a diverse range of services including security services, administration, storage and delivery, and training. This organisation has been established for some twenty years and provides a range of services to the public and private sector. The majority of workers are fulltime with support being provided from some part time employees, and some contractors.

MAGIC has four (4) regional centres with a Regional Manager and an appropriate number of workers. Each Regional Manager provides quarterly written reports on productivity, performance and HR issues. The CEO reports to the Board on a quarterly basis.

A recent workplace death resulted in a detailed investigation being conducted by the police and the Division of Workplace Health and Safety. Reports prepared for the Coroner have indicated that workplace bullying was a contributing factor in the death.

 The Inquest heard from the police and the Division of Workplace Health and Safety investigators, along with two witnesses who gave evidence that the deceased said words to the effect that „

 he said he was going to kill himself because he just couldn’t take it anymore’

 As a result of the Inquest, the Coroner has recommended that a number of persons from MAGIC be prosecuted in relation to criminal offences and workplace health and safety breaches.

 Mr Jones has now been called to give evidence in relation the organisation?s risk management policy and procedures as they relate to workplace bullying.

 Mr George Train, Barrister-at-Law is appearing to represent the interests of the deceased, Graham Thomas Bones.

 INTRODUCTION

 The Crown Prosecutor has opened the Crown case by indicating that they will produce witnesses and other evidence that Mr Bones was responsible for his own death and that Mr Jones and others had taken all reasonable action to prevent a workplace death from bullying.

 The Defense will argue that Mr Jones and others by their inaction and failure to prevent the death of Mr Bones were directly responsible for his death.

 Opening comments have been made by the judiciary. The legal representatives have introduced themselves and outlined their roles.

 Mr Jones has taken the stand and taken the Oath. The Crown has lead Mr Jones through his evidence in chief and Mr Train the defense barrister is now cross examining him.

 Note: For ease of reading, a Question and Response approach has been taken.

 Mr Train commences.

 Question:

“Mr Jones, can you tell this Court what is your role with MAGIC?”

Response

: “Yes, I am the CEO and I have been in that position for the last two years. I worked my way up in MAGIC.”

Question:

“Thank you Mr Jones. Now, prior to becoming the CEO, what was your role?”

Response:

“Yes, as I said before, I started on the front line working in security, and over the years, moved through various areas including storage, training and administration. About ten years ago, I was promoted to Regional Manager”.

Question:

“Good. Now can you tell the Court what you did as a Regional Manager?”

Response:

“Well, I was responsible for making sure that decisions from head office were implemented. This meant hiring and firing at a local level, generally managing the workers and making sure they complied with all our policies and procedures, and making sure our reputation was maintained”.

Question:

“Yes, that?s good. Now can you tell me about some of the specific policies that you have had dealings with as a Regional Manager?”

Response:

“Um, most of the time it was fairly straight forward hiring people and sacking some, but generally it wasn?t a problem. Any time I was in doubt, I used to contact the HR Director. Most of the time though, one of the line managers would sack someone and then tell me what they had done. I would just sign off and send the paper work through to head office”.

Question:

“Interesting. Now, did you receive any formal training in relation to procedures for hiring or firing?”

Response:

“No, not really. From time to time though, we did get some documentation from head office outlining the key points to consider. It was pretty easy to follow.”

Question:

“Okay. What can you tell me about the risk management policy and procedures?”

Response:

“Head office appointed a risk management coordinator a few years ago and people rotate through that position. Not long after I was appointed as the Regional Manager, the risk management coordinator did a State tour. He came to our Regional Office and spoke for about an hour on the policy and left copies of the documentation and told us that if we had any problems, to give him a ring.”

Question:

“Did you ever have to give him a ring?”

Response:

“No, but what happened was that the auditors came through about three months later and found that we were not complying with some areas”.

Question:

“Can you tell the Court what those areas were?”

Response:

“Yes, it seemed that we were completing too much paperwork when doing the reports, and reporting on every hazard and risk. Apparently, we were only required to report the high risks.”

Question:

“I see. Did you have some concerns with this?”

Response:

“Well, yes. When the risk management coordinator came around he told us that we had to report on every risk and hazard and this is also in the policy.”

Question:

“I see. What can you tell the court about your knowledge of the workplace bullying policy?”

Response:

“I knew there was a policy and it was on the intranet but it was a HR issue that was generally handled by the HR area.”

Question:

“I see. Can I ask you to look at this document?” (Mr Jones is handed a copy of Workplace Bullying Policy dated September 2001).

Mr Jones looks at the document.

Question:

“What can you tell the Court about that document?”

Response:

“Well, it is the Workplace Bullying Policy for our organisation. It is dated September 2001.”

Question:

“Can I refer you to page 7?”

Mr Jones turns to page 7.

Question:

“Can I ask you to read out what it says in paragraph 6.4?”

Response:

“Yes, it says Regional managers are to ensure that they apply the risk management policy in all areas of the organisation. This includes operational, finance and HR.”

Question:

“Thank you Mr Jones. Now can you tell the Court how you as the Regional Manager applied the risk management policy in relation to workplace bullying?”

Response:

“Yes, I remember the previous Regional Manager coming back from head office where she had attended a meeting of the executives. She told us that a decision had been made that workplace bullying was not a high risk and that the usual systems and processes would apply.”

Question:

“Okay. What did you think was meant by that?”

Response:

“Well, I knew we had a support system in place, you know contact officers, and we had a network of safety officers. I knew there was a policy in place at that time so I thought that if the executive had made that decision, they would accept the risk if anything went wrong.”

Question:

“Mr Jones, you are now the CEO of your organisation. Can you tell the Court what changes you have made since you were promoted?”

Response:

“Yes, I have been busy. The Board wants us to increase our production levels in all areas, and we have had to make a number of changes because of Fair Work Australia as well as trying to do something about carbon tax.”

Question:

“Yes, I see. Now, have you made any changes in relation to your risk management policies and procedures?”

Response:

“Well, not long after I was promoted, I asked the risk management coordinator for a briefing in relation to industry trends and directions regarding risk management. He recommended that we review our policy and procedures as the process for updating them had started some 6 years ago. He also recommended that we have a Risk Management Committee and that we follow ISO 3100 for all our risk management. I also spoke to our Corporate Safety Manager and he told me that we should use the work health and safety risk management framework for all safety issues including bullying”.

Question:

“So you asked for some advice about 2 years ago. Is that correct?

Response:

“Yes, just after I was promoted so that would be about 22 months ago I suppose.”

Question:

“Can you tell the Court what is the current status in relation to your risk management policy and procedure?”

Response:

“Yes, I am waiting for the risk management coordinator to present a final draft to the executive so that we can sign off and have the new policy implemented.”

Question:

“Do you know when you will get the final draft?”

Response:

“Well it was supposed to be three months ago, but then the floods hit us.”

Question:

“I see. What can you tell me about your current workplace bullying policy?”

Response:

“Yes, I had a briefing from the HR director about a month ago. The Corporate Safety Manager had prepared a draft for discussion but somehow there was a virus in the computer system and the draft has been lost. There was a backup and that has been sent around for comment.”

Question:

“I see. Can you tell the Court when your current workplace bullying policy was issued?”

Response:

“I am not sure. I haven?t seen it recently.”

Question:

“Well, Mr Jones, can you look at this document and tell the Court when it was issued?

Mr Jones looks at the document.

Response:

“It was issued in November 2003.”

Question:

“Can you tell the Court whose signature appears on that document?”

Mr Jones looks at document.

Response:

“It is my signature.”

Question:

“Can you tell the Court why you signed the policy?”

Response:

“Yes, at that time, all the Regional Managers had to relieve the then CEO when he went on holidays. We would do everything that he would do, including sign policy”.

Question:

“I see. Can you turn to page 8, and look at paragraph 9.4?”

Mr Jones turns to page 8.

Question:

“Mr Jones, can you read out paragraph 9.4?”

Response:

“Yes, it says – The CEO or any person acting as the CEO is to ensure that the workplace bullying policy is reviewed annually or at any time when a Court, Commission or Tribunal is such that the decision may impact on this organisation. When changes are made, the CEO or any person acting as the CEO is to ensure that these changes are communicated to all workers.”

Question:

“Thank you Mr Jones. Now, you said that you signed the policy in November 2003. Is that correct?

Response:

“Yes”.

Question:

“Can you tell the Court how many times the policy has been reviewed since 2003?”

Response:

“Well, I haven?t signed off any changes. There may have been some changes, but I wasn?t aware of them.”

Question:

“Mr Jones, can you tell the Court how the CEO gets to sign off on policies?”

Response:

“Well, there would be a draft document sent around for consultation and when that had been finished, a final draft would be discussed by the Executive. If the executive was happy, the CEO would sign off.”

Question:

“So then, what you are telling the Court is that the risk management policy and the workplace bullying policy are still in the process of being finalized. Is that correct?”

Response:

“Yes”.

Question:

“In effect, the risk management policy and the workplace bullying policies have both been in existence for some time. Is that correct?”

Response:

“Yes”

Question:

“Mr Jones, do you read every policy before you sign it?”

Response:

“If I have time. We have a good process for developing policy, and sometimes I just sign what is put in front of me, especially when I see the word policy in the heading.”

Question:

“Thank you Mr Jones. Now can you tell me how many risk management workshops have been conducted in your organisation in the last two years?”

Response:

“After the initial round of training when risk management first came into the organisation, we developed a system of online training and all workers are expected to complete a refresher every year.”

Question:

“Mr Jones, when is the last time that you completed risk management training?”

Response:

“I am not sure. I have been busy trying to run the organisation. Probably not in the last two years”.

Question:

“I see. When did you last attend a workplace bullying training session?”

Response:

“We had a quick presentation at our last Executive conference three months ago, but nothing in the last two years.”

Question:

“Mr Jones, can you tell the Court how many workplace bullying incidents have been reported in the past two years?”

Response:

“Yes, there have been three”.

Question:

“What can you tell the Court about those three incidents?”

Response:

“Yes, in the first one, one of the workers was complaining about being put into a performance management plan. There was an investigation that supported what we were doing. In the other two, one involved some issues regarding assaults so the alleged bully was sacked and that matter is still going through a Tribunal hearing. In the other case, the victim lodged a WorkCover claim which was rejected. She lodged a Review and the WorkCover decision was overturned. We are still trying to sort that out.”

Question:

“Are you aware of any other incidents that may not have been reported?”

Response:

“No. There are always some rumours. If there was anything happening, workers could always report the matters to a support person”.

Question:

“Mr Jones, in relation to this matter involving Mr Bones, when did you first become aware of the bullying?”

Response:

“I hadn?t heard anything specific. I knew that he worked in an area where there was a bit of banter and teasing, but nothing really serious. Most of the blokes that work can handle a bit of rough and tumble.”

Question:

“Have you ever visited that particular workplace and spoken about your workplace bullying policy?”

Response:

“No, I have been there but no, I haven?t spoken about the policy”.

Question:

“When you were last in that workplace, did you see any copies of the brochures that your policies talk about?”

Response:

“No”

Question:

“Did you see the names of the Contact Officers displayed anywhere?”

Response:

„No”.

Question:

“Do you know who the Contact Officers are in your organisation?”

Response:

“No, I would have to look them up.”

Question:

“Do you know where you would find their names?”

Response:

“Yes, they would be on the intranet”.

Question:

“How often is that list updated?”

Response:

“Every time there is a change”.

Question:

“Mr Jones, can you look at this list and tell the Court what it is?”

Mr Jones looks at a list. “It is the list of Contact Officers.”

Question:

“Mr Jones, can you tell the Court whether that is a current list?”

Response:

“As far as I know it is”.

Question:

“Mr Jones, what can you tell the Court about Mr Green, Miss Jones, and Mr White?”

Response:

“Oh, they no longer work for us”.

Question:

“So Mr Jones, it appears that your risk management policy is not current. Is that correct?”

Response:

“Yes”.

Question:

“Mr Jones, your workplace bullying is out of date. Is that correct?”

Response:

“Yes”

Question:

“Your list of contact officers is out of date. Is that correct?”

Response:

“Yes”

Question:

“Mr Jones, what can you tell the Court about changes that your organisation is making as a result of the harmonization of workplace health and safety laws?”

Response:

“Yes, we had a presentation about 12 months ago from our Safety Manager. We have been waiting for the Government to finalise the regulations”.

Question:

“Mr Jones, would you be surprised if I told you that the regulations were finalized six months ago”.

Response:

“I will have to follow that up with the Safety Manager.”

Question:

“Mr Jones, the harmonization process resulted in some significant changes about due diligence for officers. What can you tell the Court about those changes?”

Response:

“Well, the Safety Manager did cover that during the presentation, but so far, I have been busy running the business. The Board wants MAGIC to increase the productivity in all areas.”

Question:

“Mr Jones, can you tell the Court about how you keep up to date with health and safety knowledge and information?”

Response:

“Well, we have a Safety Manager and a network of safety officers. I expect the Safety Manager to let me know about anything specific”.

Question:

“I see. Can you tell the Court about the last time you left your office to do some work health and safety checks?”

Response:

“I don?t go out specifically to check on work health and safety. I have been busy in the last six months. I rely on the Safety Manager and the Regional managers to tell me about any issues”.

Question:

“I see. Can you tell the Court when it was that you last attended a work health and safety training session of any kind?”

Response:

“Sometimes I have opened some sessions, but because it has been busy, I haven?t been able to stay.”

Question:

“Mr Jones, I want you to think about you answer to this question. You earlier told my learned colleague Mr Ducklove, the Crown Prosecutor that you were committed to safety leadership and that the safety of all workers was the number one concern of yours. Is that correct?”

Response:

“Yes”.

Question:

“Mr Jones, you have given evidence that you have been busy running the business, that you only opened some health and safety sessions, that you don?t keep up to date with safety changes, that your risk management policy is not current and that your workplace bullying policy is out of date. Is that correct?”

Response:

“Yes, I suppose that is true.”

Question:

“Mr Jones, it seems that you are saying that nobody told you all the specifics about the problems with your systems and processes? Is that correct?

Response:

“Well, not completely correct. I did ask some questions along the way”.

Question:

“Mr Jones, can you tell the Court, how you demonstrate your commitment to workplace health and safety if your risk management and your workplace bullying policies are not current?

Mr Jones sits there without responding.

Mr Train concludes by saying “I have no further questions of this witness, Your Honour.”

COMMENTS

Whilst the Crown will try and show that the worker contributed to their own death, responses provided by witnesses and through the production of exhibits such as corporate records, could show the opposite, or at least show that the actions or inactions of a range of people created an environment that was conducive to workplace bullying.

In a case like this, the Crown will try and show that there are systems and processes in place. For example, the following systems and processes should be evident and supported through documentation:

Risk management policy and procedures

-  Copies of risk management plans, directives, instructions, training records

Workplace bullying policy and procedures

-  Copies of documentation, evidence of consultation, risk assessment

Clearly defined responsibilities for Officers

Clear understanding of due diligence requirements

Training for all workers including executives

Commitment to work health and safety – evidence that the CEO and other executives do site inspections – safety leadership

Good support networks

-  Current list of Contact officers, training, brochures, contact numbers

Regular reviews of policies and procedures that take into consideration changes to legislation, Court/Commission or Tribunal decisions, and Review findings

Investigation processes

Management and Supervisory training in relation to conflict management/resolution

Management reviews and audits regarding effectiveness or otherwise of various policies and procedures e.g. risk management and workplace bullying

The defense will try and prove that those systems and processes identified above were sub standard, out dated, or did not exist, and that these were issues that contributed to the workers death.

This scenario has been written in such a way to highlight the problems that can exist for organisations when inappropriate responses are provided. In a case like this, the defense would have no doubt been seeking to put other workers and managers into the witness box prior to cross examining Mr Jones.

The responses provided in this scenario highlight how not to respond. Self incrimination can occur when a business owner or CEO has not conducted any research into systems or processes, or cannot demonstrate a reasonable understanding of policies and procedures.

As the due diligence requirements under the harmonization process now indicate, officers need to make themselves familiar with the health and safety systems and processes. A lack of understanding can result in inappropriate responses being provided during a Court, Commission or Tribunal hearing.

It might be a reasonable ploy or strategy to demonstrate to the Court that whilst there may have been some documentation, the actual workplace culture showed a lack of commitment and understanding of work health and safety.

LESSONS TO BE LEARNED

Prepare for a day in Court

Practice responses

Create scenario based training with role plays

Test organisational documentation

Anticipate worst case scenarios and develop risk management plans

Address workplace bullying through risk management, fraud and corruption plans, audit plans, safety plans

Identify left field questions

Engage professionals to assist in developing appropriate responses

Conduct „spot? audits and checks in the workplace

Demonstrate evidence of consultation

Know how risk assessments were conducted and what was considered

Understanding what is due diligence and what is required

Do your planning

Bernie Althofer AFAIM 2011 ©

EGL I ASSESSMENTS PTY LTD

P: 0419 661 421

W: www.egliassessments.com

Thank you Bernie for your fantastic article!

The JSA process begins with identification of the potential hazards or risks associated with a particular job. Once the hazards are understood, the consequences of those hazards are then identified, followed by control measures to eliminate or mitigate the hazards. A more detailed JSA can be performed by breaking the job into steps and identifying specific hazards and control measures for each job step, providing the worker with a documented set of safe job procedures. Some JSA processes also include a risk assessment that lists the probability of each hazard occurring and the severity of the consequences, as well as the effectiveness of the control measures.

 Background

In the first half of 2011, NT WorkSafe received in excess of 20 notifications of fires in vehicles and other mobile plant. The incidents have occurred throughout the Territory, with the bulk of incidences occurring in the mining industry. The majority of the fires have been attributed to component failure and/or inadequate maintenance.

 Contributing factors

-  Inadequate scope and/or scheduling of maintenance and inspection of vehicles and plant.

-  Hydraulic oil contact with hot engine areas.

-  Poor maintenance leading to a buildup of combustible material (lubricant and fuels) near

heat or ignition sources.

-  Ineffective isolation of ignition sources such as battery terminals.

 Action required

Recommended control measures to prevent similar incidents occurring include:

-  Systematic inspection of all components within a hydraulic or fuel supply circuit during outine part replacements.

-  Proactively monitoring of hydraulic hoses including checks on hose connections, clamps and pressure relief valves.

-  Adopt a risk based hydraulic hose management system.

-  Verify internal maintenance systems with additional quality checks by manufacturers or

authorised service providers.

-  Evaluate isolation techniques such as shielding for potential engine heat sources or insulation of hoses near hot components.

-  Routine inspection of electrical systems for corrosion or insulation fatigue.

-  Consider the location and rating of protective devices such as fuses and wiring control.

-  Install, maintain and systematically inspect fire detection and automatic fire suppression

systems on vehicles or plant operating at a higher risk of fire.

-  Install portable fire extinguishers on all mobile plant.

-  Provide appropriate training to all mobile plant staff on hydraulic hazards, fire detection  and response procedures.

 Further information

Australian Standard

-  AS 5062 – 2006 Fire Protection for Mobile and Transportable Equipment.

For 2011-12, Workplace Health and Safety Queensland interventions will target industries and work practices where statistics show more needs to be done to protect workers. This year’s interventions include:

• rollout of PErforM (a program aimed at reducing hazardous manual task risks through workplace based teams assessing risks and developing solutions)
• risks in metal and plastics manufacturing
• red meat and poultry processing
• liquefied natural gas industry
• securing loads on trucks
• establishing regional networks in the transport industry
• rural industry mobile plant and older workers
• quad bikes
• manual tasks in the fruit and vegetable industry
• major hazards in the civil construction industry
• concrete pumping
• swing stage scaffolding
• load handling at construction sites
• establishing regional networks in the health and community services industry
• young workers in the retail industry
• psychosocial injuries in the education sector
• legionella in cooling towers
• amusement devices at agricultural shows.

Safety Concepts now has a consulting service for Brisbane based businesses so, feel free to contact us anytime to discuss having a Consultant visit your work site!

Industrial Relations Minister Cameron Dick launched the Sawmilling Industry Health and Safety Guide at a timber industry safety workshop recently.

More than 20,000 Queenslanders and their families depend on the timber industry for their livelihood. But working with chainsaws, rolling logs, chippers, heavy machinery and the like, often at height or in confined spaces, can be dangerous work.

Historically, the timber industry has been one of the state’s most dangerous, with higher-than-average injury rates. That’s why Workplace Health and Safety Queensland and the industry have teamed up to produce the Sawmilling Industry Health and Safety Guide.

The guide highlights safety issues involved in the industry such as the use of chain saws, docking saws, conveyors, cranes, heavy machinery and plant, power tools, ladders, scaffolding and fire pits. It also contains tips for operating safely in dangerous working conditions such as working at height, working in confined spaces and working with hazardous substances. It includes safety surveys and checklists, contacts, information on what to do in an emergency and advice on what your legal obligations are.

For more information visit www.worksafe.qld.gov.au

Please feel free to add any comments or experiences!

 The question of whom to hire and when should be on the minds of CEOs, operations managers, human resources, project managers, and others regarding safety and training issues. This question is not always easily answered, even if your company has the resources and personnel in the guise of a safety and health director and/or department. In this ever-changing world of downsizing, everyone needs to justify how many man-hours are spent and at what cost to the company. Everyone is responsible for watching the bottom line.

 In order for most companies to remain competitive and stay in business, they must provide–per legislation—a safe work environment for all of their employees . . . not just the full-time employees. You may have the best safety and training program, however, human error is impossible to predict and control 100 percent.

Your safety and training manager (if you have one in house) usually has more on his/her plate than the original job description depicts. He or she does not have the time, and your budget constraints do not allow him or her the resources, to keep up with the ever-changing environment in which we live and work. Therefore, in most cases, it is very cost effective to hire a safety consultant to take a fresh look at your company policies, training, accident prevention programs, and a multitude of other issues that may be particular to your type of industry and company.

 Why Go Outside for This Service?

First, a professional consultant is not bogged down by your company’s internal affairs, nor is he/she influenced by your past safety record. Nor will he or she alter reports just to make your company look good. You also have the opportunity to find someone, although this person may not have a lot of initials and titles after her name, who has a proven record of actual, hands-on skills and has the ability to save your company a serious amount of money through recommendations or implementation of new ideas.

 These professional consultants attend seminars, meet with industry regulatory agencies, and in general are ahead of the curve for safety and training in their field of expertise. The cost of their services ranges from reasonable to ridiculous, as some want to sell you software, videos, and other potentially useless expenses that leave you with a bad feeling for consultants.

 In order to find the right company for your needs, get a referral list and check them out, the same as you would for other services that either your company requires or you require personally. For instance, if you needed heart surgery, would you run your finger through the Yellow Pages? Would you require a doctor with a multitude of titles or degrees? I surely hope not. If it were me, I would speak to past and present patients, other doctors, hospitals where they worked, and the Department of Health, and would make sure this is the person to whom I want to entrust my life. In the same manner, you are entrusting the lives and well-being of your employees to an outside safety consultant. Take the time to make a healthy decision.

 Benefits to Hiring a Safety Consultant

• • Reduce overhead costs
• • 100 percent business expense (deductible)
• • Service available either as needed or specified by contract
• • Training available for employees when required
• • Up to date on safety regulations
• • Available to check current safety manual and upgrade as required or write a new safety manual specific to your company and industry

 Safety Concepts offers a cost effective, quality consulting service for Brisbane based businesses.  With the new harmonisation laws becoming effective on January 1, 2012 now is the time to talk to Safety Concepts and have your safety system reviewed!

General

•Ensure work method statements prepared, signed off and available

•Ensure workers have general safety induction cards

•Display appropriate site signage

•Use appropriate safety gear

Work at heights

•Keep controls in place if risk of fall = 2 m for commercial and 3 m for domestic e.g. edge protection, catch platform

•Provide and use adequate work platforms e.g. 5 planks

•Ensure no gaps in perimeter protection

•Make sure penetrations covered/secured

Tools/equipment

•Ensure tools and equipment maintenance are in good condition

•Use tools and equipment for intended purposes only

•Make sure guards are in place when using tools and equipment

Falling objects

•Do not throw tools and materials down from heights

•Make sure brick guards/mesh are in place in scaffold

•Use exclusion zone and/or catch platform

•Ensure controls implemented for loads being lifted over adjoining areas e.g. adjoining area closed/gantry erected

Electrical

•Keep electrical equipment away from water

•Make sure earth leakage switch installed on mains supply

•Secure and protect extension leads from damage and used from individual power points with leads not exceeding 30 metres Keep testing and tagging current e.g 3 monthly

 Access/housekeeping

•Keep working area clear/tidy

•Manage trip hazards e.g. material neatly stacked

•Dispose excess mortar appropriately e.g. designated areas

Manual tasks

•Use mechanical equipment (e.g. forklifts, trolleys, cranes) to reduce the force needed to lift, carry, move, hold or restrain material and tools.

•Adjust equipment to minimise bending, twisting and over-reaching (e.g. adjust height of work platforms to avoid over-reaching).

•Change work practices or equipment to avoid repetitive actions or prolonged tasks (e.g. use a crane or elevator to lift bricks to work level to avoid throwing bricks).

Noise

•Wear Hearing protection when cutting timber and metal

•Ensure controls implemented to minimise exposure e.g. hearing protection.

Hazardous substances

•Make Materials Safety Data Sheets (MSDS) available for substances classified as hazardous (e.g. cement, lime, hydrochloric acid)

•Store hazardous substances safely and securely when not in use

•Train workers in safe handling of hazardous substances (e.g. wear gloves when handling hydrochloric acid)

•Label hazardous substances (includes safety and risk phrases)

•Do not store hazardous substances in food and/or drink containers (e.g. hydrochloric acid not stored in drink bottles)

Personal Protective Equipment

•Ensure workers wearing steel capped boots, hard hat with shade brim, high vis shirts and sunglasses if necessary

Amenities

•Provide sheltered meal area

•Ensure workers have access to toilets (1 toilet for each 15 workers or part thereof)

•Provide hand and face washing facilities (separate from toilets)

•Ensure workers have access to potable, clean and cool drinking water

•Make sure first aid equipment provided is hygienic and appropriate for the size and complexity of the project

Emergency preparedness and response

•Keep fire extinguishers available and testing current

•Make sure emergency evacuation plan available

•Brief workers on emergency evacuation plan

· Ensure that you have first aid facilities available

Sun protection

•Recognise ultraviolet radiation 3-7 protection required; 8-11 extra protection required

•Ensure protection by seeking shade, wearing sun protection clothing, broad brim hat, sunglasses and using sunscreen

•Wear clothing with a 30+ ultraviolet protection factor

•Wear safety helmets extra brims and neck covers fitted

•Wear sun glasses and 30 + sun protection

Occupational stress

•Monitor work demands and control over work

•Provide support systems for talking about tough situations at work

•Provide clear work structures, particularly through times of change

•Recognise and reward workers

Occupational violence

•Use design or engineering measures to change the physical characteristics of the workplace, to reduce the risk, where possible.

•Change the systems of work or work practices to help reduce risks. For example, train workers in aggressive behaviour management, including the recognition and diffusion of potentially volatile situations; ensure sufficient number of appropriately trained staff, where possible; provide for emergency communication; implement a system of communication and support for home visits.