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.

According to Bloomberg’s Businessweek, computer giant Intel is one of four companies trialing the use of online personal health records to help employees monitor their own health.

A consortium of companies including Intel, Wal-Mart and Pitney Bowes are involved in the project that hosts the records of employees so they have a good way of getting their entire medical [history] in one place.

According to the report about 7 percent of Americans have now used personal health records, nearly double the percentage a year ago. In theory, by giving employees an online tool to monitor their health, companies can cut health-care costs without raising concerns about data privacy. Plus doctors have better information with which to recommend treatments.

Personal-health-record software from companies like Dossia, as well as from Google’s (GOOG) Health system and Microsoft’s (MSFT) HealthVault, takes the place of pen-and-clipboard medical histories that patients fill out before doctor visits.

The information is different from that kept in electronic medical records, which can be difficult for patients to transfer among heath care providers. In addition to patients’ medical histories, personal health records also contain information about drug prescriptions and lab results.

The systems typically work by collecting health information from doctors’ offices, health plans, pharmacies, and labs — plus data that employees enter themselves — into a secure Website. The information is private to employees; employers can’t see it. And when employees leave a company, they take their personal health records with them.

Personal health records aren’t a cure-all: Employees must do the hard work of living healthfully. Yet the software can encourage positive changes.

The report went on to say that while millions of dollars are spent trying to find the cure for RSI we don’t appear to be getting very far. In fact it is generally agreed that the most success comes from prevention, not cure.

The number one cause of RSI is the huge impact of computers in our lives – in particular the use of keyboards. Almost every worker in an office from the receptionist to the executive suite works daily with a desktop or laptop. Even in a world where the use of the personal device and smart phone is fast becoming the next “platform” PC use is as mainstream as paper and pencil.

The report says that incorrect seating, poor work regimes and appalling physical fitness can play a role in RSI, which is why many experts often prescribe special exercises to help lessen the effects of long hours spent at the computer making hundreds of thousands of key strokes. While these movements may be small, they carry the risks and dangers of any athletic activity.

There are some simple tips to avoiding RSI and still remain productive at work.

First, start with a good chair that has as much adjustability as possible and is easy move. The chair should not be so long that it digs into the back of the legs, and the chair’s height should be adjusted so that the feet can touch the floor without dangling.

To help improve posture, select an ergonomic designed keyboard. If you cannot change your hardware make a simple adjustment to the keyboard. Slip a board, about 25 centimeters thick, beneath the lowest side of the keyboard. This provides a “negative” tilt, taking some strain off the wrists and encourages you to sit up a little straighter,

According to the American College of Orthopaedic Surgeons, sufferers of RSI can be aided by the correct environmental climate with which to operate at work. The college suggests workers change the desk height, change the seat, and use a foam wrist rest.

Another field of thought says that the best way to treat RSI is keep the tendons supple and moving. The theory is that tendons that move heal better, so people are encouraged to warm up by doing fine motor movements such as wrist twirls and finger lunges to keep things supple.

By limiting how much hands and wrists move you can cause muscles to contract and tendons to shrink. People end up alleviating some of the pain, but they tend to put added stress on some of the other muscle groups. The goal is to maintain a range of motion.

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.

The awards are a joint initiative by the National Safety Council of Australia and GIO. They are designed to celebrate Australian innovative safety solutions, best practice OHS and safety communication in the workplace.

The key objectives of the awards are to recognise high standards of safety by Australian organisations and individuals, promote OHS excellence and increase awareness of the Safety Council’s commitment to safety.

People or organisations can nominate under six categories:

1. Best Implementation of a Specific OHS Management System
2. Best solution of a OHS Workplace Risk
3. Best OHS Training Program
4. Best Communication of a Safety Message
5. Excellence in Innovative Environmentally Sustainable Work Practices
6. Business Excellence through OHS Management

Previous winners of the awards came from companies such as CGU Insurance, Railcorp, Queensland Department of Public Works and Bluescope Steel.

Each winner of the six categories is automatically in the running for the annual Award for Excellence in OHS which is the pinnacle for the award program and seen as an ultimate recognition for workplace safety.

Nominations for the awards are open till 2 July 2010. If you are interested in entering the 2010 Awards visit the Safety Excellence Awards Entry page.

Southern California Coalition for Occupational Safety, a nonprofit group, had the idea for the mock funeral to urge passage of stronger state and federal occupational safety laws.

Worker safety has been in the news with the recent deaths of 29 people in a West Virginia coal mine and the explosion of an oil rig in the Gulf of Mexico that left 11 missing. But in the US most occupational deaths receive little notice. According to the U.S. Department of Labor, thousands of U.S. workers are injured or killed on the job each year as a result of “preventable incidents.”
 
On the day, a flower-bedecked altar set up outside the labor center paid tribute to a number of fallen workers, and displayed snapshots and brief biographies.
 
Vehicles in the mock procession proceeded from MacArthur Park on an almost four-mile route through central Los Angeles, with posters written in English and Spanish conveying messages such as “No job is worth more than our lives” and “Remember the dead — fight for the living.”

Do you think would work here in Australia – a mock funeral procession down our Ann Streets, Collins Streets or even George Streets?  A mock funeral to show how big an impact a workers death can have on family and the community. OHS in Australia is covered by state laws that are a lot stricter than those in the US, but even these laws will not prevent accidents and deaths at work without widespread culture of compliance from the CEO down to the shop floor.

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.

The good news is that the premium increases will not come with restrictions on access to common law compensation claims. It looks like the government has backed away from recommendations made by the WorkCover Queensland Board in November last year to restrict injured workers access to compensation through the courts.

There was considerable pressure on the government not to reduce compensation access at a time when workers were most at risk due to the impact of the overseas financial crisis on local trade and manufacturing.

WorkCover has advised that the reform package will include an increase in the average premium rate from $1.15 per $100 of wages paid to $1.30 in 2010-11.

Despite this increase QLD Employers will still be paying the lowest average premium of any state or territory in the nation. That may still change because the government did say they would review the situation in 2 years and if the costs of claims has continued to rise and outpace premiums then it will be forced to put through more increases or cut back on cover.

In a press release the Premier said “Our aim is to make sure every Queenslander returns home safely from work, each and every day. In the event of a workplace incident causing injury or death, we want to ensure there is a strong compensation scheme in place to support workers and their families”.
 
Our friends in Queensland should note that WorkCover and Workplace Health and Safety Queensland will start auditing employers with a poor safety record and if there is a history of poor performance WorkCover has the power to raise their premiums above the cap.

Legislation required to implement the reform package is expected to be introduced into Parliament by mid 2010.

Organizers of the event pointed out that about 7,000 Australians die each year from work-related causes and that in Western Australia alone 21 people had died at work since January 2009. In fact there was some criticism of the WA government because it had refused to sign up to nationally agreed safety laws and that was seen as leaving workers with “the weakest safety laws in Australia”.

Meanwhile, thousands of construction workers have marched in Melbourne’s CBD to protest against the rising rate of deaths and serious injuries at work. According to union figures, deaths in the construction industry increased from 3.14 deaths per 100,000 workers in 2004, to 3.86 in 2005, 5.6 in 2006, 4.48 in 2007 and 4.27 in 2008, he said. Workers placed black helmets on white crosses symbolising the eight construction workers who had died since the last memorial day.

In NSW, hundreds of family and friends placed flowers on the Memory Lines sculpture at Reflection Park in Sydney’s Darling Harbour to honour those who had died as a result of a workplace accident or illness.

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.