The New Safety Laws – Are you being Harassed?

Jamie McPherson

Partner

MVM Legal

Introduction

• What psychological injuries are covered under the Act

• How does this effect things like investigative powers and right of entry?

• How does an employer discharge those obligations

• Some examples of prosecutions under the legislation

• Is the Act the appropriate forum to manage such issues?

How does a psychological injury fall under the Act?

• Must ensure, so far as is reasonably practicable, the health and safety of workers– “ensure” means to eliminate or minimise

risks to health and safety– “health” –Schedule 5 – means physical and

psychological health• Therefore, the primary duty contained in

the Act requires an obligation holder to eliminate or minimise risks to psychological health so far as is reasonably practicable.

What about management Decisions?

• Section 32(5) of the WCRA

injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—• (a) reasonable management action taken in a

reasonable way by the employer in connection with the worker’s employment;

• (b) the worker’s expectation or perception of reasonable management action being taken against the worker;

• (c) action by the Authority or an insurer in connection with the worker’s application for compensation.

What about Management Decisions

• No such exclusion contained in the Act• There is reference to it in the Prevention of

Workplace Harassment Code – but it excludes such decisions from the operation of the Code, not the operation of the Act

• One would hope that reasonable management decisions would fall outside the scope of the primary duty in any event– Embarking on reasonable management action is

evidence that an obligation holder has eliminated or minimised the risk to psychological health

What does this mean re: Right of Entry etc?

• Is a psychological injury notifiable?– No (unless become an inpatient in a

hospital)• Is it a dangerous event? – No• Can an Inspector investigate it?

Yes• Can a WHS permit holder enter a

site in relation to it? - yes

Right of Entry

• So even though it is not a dangerous event, and not a notifiable incident, Right of Entry can be exercised…

Right of Entry

• But what is the proper “gate” for right of entry in such circumstances?– the primary duty contained in the Act requires

an obligation holder to eliminate or minimise risks to psychological health so far as is reasonably practicable.

– The right of entry can only be exercised when there is a reasonable suspicion that this elimination or minimising or risk has not occurred, not merely when a risk of psychological injury is identified

How does an Obligation Holder Comply with the Act?

the primary duty contained in the Act requires an obligation holder to eliminate or minimise risks to psychological health so far as is reasonably practicable.

Reasonably PracticableIn this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

SO…Look at the Prevention of Workplace Harassment Code

ComplianceIt is therefore only where there is evidence that there is no systems in place for • identification of possibility or existence of workplace harassment• No risk assessment in relation to the possibility of workplace

harassment• No control measures (harassment and HR policies and

procedures)• No review of effectiveness (ought reasonably know that

harassment is occurring notwithstanding the existence and enforcement of those policies)

• Or any one of those

That there is a breach of the primary duty of care

Is it a Category 1 Offence?

Is it a Category One Offence?– Recklessly endangering a person to risk of

death or serious injury at a workplace• Doesn’t matter whether they suffer the injury or not• “Reckless” - Recklessness transcends ordinary

negligence. To be reckless, conduct must demonstrate indifference to consequences under circumstances involving peril to the life or safety of others, although no harm is intended.

– A case of clear and unchecked bullying leading to severe injury (hospital admission or physical abuse) would clearly be, if no HR policies and procedures in place and enforced

Some Examples

• Maddaford –v- M A Coleman Joinery [2004] NSWCIMC 42– “initiation ceremony” for a new employee – wrapped in

cling wrap, and had saw dust and wood glue stuffed into mouth

– No action taken, no workplace harassment policy– Company fined $24,000 and Directors fined $9,000

and $12,000 respectively• WorkSafe Victoria –v- Map Foundation Pty Ltd trading

as Café Vamp and Ors – Brodie’s case– Systemic bullying over a long period of time ultimately

led to the victim committing suicide– No policies or procedures in place– Convicted and fined $110,000 for each offence.

Is the Act the best forum to deal with such issues?

• Fair Work Act• Workers Compensation and

Rehabilitation Act• Discrimination Legislation• OHS Legislation• Brodies Law (?)• Where is it beast dealt with or

should it be dealt with by all??