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 Practicable
In 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
Compliance
It 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??