Occupational Health & Safety

Transcription

1 Occupational Health & Safety Rima Newman Partner Kristopher Cook Senior Associate Logie-Smith Lanyon Lawyers Logie-Smith Lanyon Lawyers E: T: E: T:

2 Overview Kristopher Cook (Senior Associate) Overview of OHS/WHS law in Australia Update: The harmonisation of work health and safety laws in Australia Duties of directors, company officers and senior management Penalties Dealing with work safety inspectors Insurance Rima Newman (Partner-in-Charge) Mental health and the workplace Bullying and sexual harassment This presentation provides a general summary and is not intended to be comprehensive. It is not legal advice. You should obtain legal advice specific to your circumstances before relying on any aspect of this presentation.

3 OHS/WHS Law in Australia OHS/WHS law is criminal law. Penalties can include custodial sentences and significant fines (up to $3m for a body corporate and $600,000 for a company officer in some jurisdictions). It is contrary to public policy in Australia to enforce an indemnity (e.g. insurance) for criminal penalties or for a company to indemnify an officer or employee for the consequences of their criminal conduct. Insurance is available to cover the legal costs associated with an investigation, prosecution or inquiry.

4 Duty of Care OHS/WHS law = statutory negligence. Common law negligence: duty of care; breach of the duty; and damage. OHS/WHS law damage is not necessary to incur a liability. The focus is on risk rather than actual injury or illness.

5 Reasonable Foreseeability "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Lord Atkin in Donoghue v Stevenson

6 Injury Includes psychological injury - PTSD, stress related illness, anxiety, depression - musculoskeletal, headaches, migraines, skin disorders, ulcers - behavioral indicators: absence from work, erratic behavior etc.

7 Why is OHS/WHS important? Ineffective management of OHS/WHS can lead to: employee health and safety issues (injury, illness, death) criminal liabilities civil litigation increased insurance premiums loss of reputation disruption to business closure of operations

8 Harmonisation Harmonisation: Legislation based on model Work Health and Safety Act (WHS Act) has commenced in QLD, NSW, SA, TAS, ACT, NT and Commonwealth. Harmonisation: Council of Australian Governments (COAG) reform agreed in 2008 to reduce cost of regulation and enhance productivity and workforce mobility. Victoria and Western Australia are the only jurisdictions that have not adopted the WHS Act. Victoria: Occupational Health & Safety Act 2004 (Vic) (VIC OHS Act). WA: Occupational Health & Safety Act 1984 (WA OHS Act)

9 Harmonisation WA Work Health and Safety Bill 2014 (WA) is 95% compliant with model WHS Act.* VIC The new State Labor has indicated it will not implement WHS Act. PwC report (2012) additional costs of $3.4 billion to Victoria over 5 years, $812 million to transition to the laws and $587 million a year for the first 5 years in ongoing costs to businesses. * Source: Ministerial Advisory Panel on Safety Legislation Reform

10 WHS Act: Relationship between duties of care, activities and relevant standard Nature of the activity Operation of the business or undertaking Duties associated with the activity Primary Duty of Care PCBU Specific classes of duty holders Relevant Standard Reasonably practicable Organisational decision making and governance Officers Duty of Care Due diligence Work activities (including supervision) Workers Duty of Care Reasonable care Circumstantial attendance at the workplace (ie visitors) Duty of Care of Others (ie at a workplace) Reasonable care

11 WHS Act - Penalties Category 1 (Reckless) Corporations: $3m Officers: $600k / 5 years jail Workers: $300k / 5 years jail Category 2 (Exposure to risk of death or serious injury) Corporations: $1.5m Officers: $300k Workers: $150k Category 3 (Failure to comply with duty) Corporations: $500k Officers: $100k Workers: $50k

12 VIC OHS Act Duty of employers to employees (reasonably practicable) - plant and systems of work that are safe and without risk to health - safe workplaces - adequate facilities - information, instruction, training Duty of employers to monitor health and conditions (reasonably practicable) Duty of employers to other persons (reasonably practicable) Duty of employees to themselves and others (s25) (reasonable care) Officer duty must relate to a contravention by the company of one of its general duties (s144).

13 Penalties VIC OHS Act (max. penalties) - $1,328,490 for corporation - $265, for individual WA OHS Act (max. penalties) - $625, for corporation - $312,000 / 2 years for individual

14 Are you a company officer? OHS Acts and WHS Acts adopt the meaning of company officer in s9 Corporations Act 2001 (Cth). Director, Secretary, CFO, COO and General Counsel Possible candidates include: - Human Resource Manager - Health and Safety Manager - Chief Information Officer - Compliance Manager - General Managers

15 Makes or participates in making decisions that affect the whole or a substantial part, of the business.

16 Company Officers WHS Act A POSITIVE duty on officers to exercise due diligence to ensure the organisation complies with the WHS Act. Due diligence is defined under the WHS Act similar to definition found in case law re: duty of officers under Corporations Act and at common law. Due diligence is a personal duty it can not be delegated, modified or transferred. Due diligence = corporate governance applied to health and safety.

17 WHS Act - investigation and questioning powers of workplace inspectors Removal of the right to silence (but note the amendments to the WHS Act in SA). Cannot refuse based on privilege against self-incrimination Use immunity if assert the privilege Requirement for warning Need to rely on the courts and Evidence Acts complex. Legal professional privilege enshrined

18 Critical incident management Develop a documented critical incident management protocol that considers: - OHS/WHS jurisdictional interface - Dealing with investigators, regulators and the police - Rights and obligations of individuals - Union right entry and H&S representatives

19 Insurance Directors and officers liability insurance. Insurance policies that purport to cover criminal liability are void against public policy: see s272 WHS Act (no contracting out). Can insure for legal costs and other expenses associated with defending a prosecution.

20 Insurance Note: a prosecution can take place after a company officer or worker has left the company. What do your employment contracts and/or deeds of indemnity say re: assistance and access to information AND indemnity for legal costs associated with a regulatory investigation? Review company insurance policies for coverage and exclusions re: breach of statutory provisions (including re: admissions made in the course of an investigation)

21 Mental health at work Work environment work location and environment travelling and expatriate employees unreasonable work expectations and other stressors inherent requirements of position Bullying and harassment Managing and responding to workplace risk

22 Work environment Physical environment (e.g. sedentary lifestyles) Workplace culture Unreasonable work hours or expectations Stressful occupations

23 Stressful occupations? Telstra call center operator committed suicide in 2007 after complaining that work targets were set too high. UK lawyer committed suicide. Sleepless nights and inconsolable with worry over outcome of big case. 10 employees of Orange France have killed themselves since beginning of BBC journalist committed suicide. Stressed and overworked (also alleged poor handling of harassment allegations).

24 Travelling and expatriate employees Increased risk of physical and psychological injury: - unfamiliar environment, culture and language - unfamiliar legal jurisdiction - increased risk of physical attack or kidnapping - isolation from family and friends - extended periods of travel

25 FIFO workers Social isolation from family and friends Stress, fatigue management and highcompression rosters Disruption to sleep patterns WA Parliamentary Inquiry into mental health impacts of FIFO work arrangements

26 Workplace environment Legal risks Failure to identify and manage potential risks associated with mental health and psychological injury in the workplace, could be a breach of OHS/WHS laws. Also: civil litigation and insurance claims.

27 Workplace bullying legislative framework Fair Work Act 2009 (Cth) (FW Act) OHS/WHS Acts Workers compensation legislation Crimes Act 1958 (Vic) (Brodie s law)

28 Bullying- defined Repeated and unreasonable behaviour directed towards a worker or group of workers (by an individual or group) that creates a risk to health and safety. Draft Code of Practice on Preventing and Responding to Workplace Bullying Fair Work Amendment Act 2013

29 Examples Abusive, insulting or offensive language or comments Withholding information vital for effective work performance Excessive or unreasonable scrutiny of work Setting unreasonable timelines or constantly changing deadlines Setting tasks that are unreasonably below or beyond a person s skill level

30 Examples (cont.) Denying access to information, supervision, consultation or resources to the detriment of the worker Spreading misinformation or malicious rumours Draft Code of Practice on Preventing and Responding to Workplace Bullying

31 What is not bullying? Reasonable management action carried out in a reasonable manner Draft Code of Practice on Preventing and Responding to Workplace Bullying Fair Work Amendment Act 2013 Note also similar exclusion in workers compensation legislation

32 Non-legal Risks Effect on morale Lack of efficiency/productivity Drain on company resources: management/hr Impact on premiums Floodgates? Risk of employee departures

33 Risk minimisation / management Anti-bullying policies / workplace conduct Standards of expected behaviour Definition of workplace bullying Process for reporting and responding Details of contact officers / resolution offices Consequences Social Media policies Grievance processes / complaints procedures

34 Risk minimisation / management Training (cont.) Induction at point of commencement Ongoing training/refreshers Record keeping of training Acceptable workplace behaviours - workplace bullying policies and procedures When, how and to whom to make a complaint Complaints process Where to go for more information and assistance

35 Use by employees (cont) Risk minimisation (cont) Employee education/training Investigate allegations (grievance process) Take disciplinary action where appropriate Consider blocking access Support services

36 Non-legal risks: Risks (cont.) effect on morale; lack of efficiency/productivity; drain on company resources: management/hr; impact on premiums; floodgates; employee turnover; and financial costs.

37 Complaint handling Informal/formal resolution process. Characteristics of a sound investigation process: complies with relevant internal policy/process; impartial investigator; confidential; and consistent with natural justice: all parties and witnesses interviewed and given opportunity to respond; and timely.

38 Questions?

39 Logie-Smith Lanyon Lawyers Australian Defence Procurement Employment & Industrial Relations Family Law Intellectual Property Insolvency, Corporate Investigation Insurance Litigation, Dispute Resolution Mergers & Acquisitions Private Client Services Property & Construction Taxation (Direct & Indirect) Rima Newman Partner Employment & Industrial Relations Law E rnewman@logielaw.com T Logie-Smith Lanyon Level Bourke Street Melbourne VIC 3000 AUSTRALIA T F This presentation provides a general summary and is not intended to be comprehensive. It is not legal advice. You should obtain legal advice specific to your circumstances before relying on any aspect of this presentation.