Allegations of sexual harassment have dominated headlines, most visibly with the #MeToo campaign.

Sexual harassment complaints, and the laws that attempt to curb the behaviours, are not new. Despite regulation, sexual harassment is still occurring in workplaces. Why?

One answer may be that organisations guard against sexual harassment through policy and lecture style training without reference to the broader workplace context.

To counter this, an alternate approach may be to use existing risk management frameworks, that have traditionally been used in the workplace health and safety context.

Step 1: Identify hazards

This step requires a deep and honest assessment of the:

  • Structure of the organisation and the industry context.
    For example: Highlighting potential hazards, such as reliance on informal recruitment practices and extreme competition for jobs that could combine to create a higher risk environment.
  • Type of work.
    For example: Physically demanding work and roles that seek attributes where appearance determines recruitment could increase risks.
  • Way work is performed.
    For example: If work is performed in environments that isolate workers, and where workers are required to be alone with a superior, colleague or customer this could lead to increased risks.
Step 2: Assess the risks

Understand the nature of harm that could be caused by the hazard, how serious the harm could be and the likelihood of it happening.

To assess this, ask:

  • How often are people exposed to the hazard? Does this make the harm more or less likely?
  • Has sexual harassment ever happened before arising from the identified hazard, either in your workplace or somewhere else? How often?
Step 3: Identify control measures and assess whether they are reasonably practicable

The most important step in managing risks involves eliminating them so far as is reasonably practicable, or if that is not possible, minimising the risks so far as is reasonably practicable. This requires higher order controls.

Can a hazard or risk be eliminated?

If lower order controls are used are these the right type of the controls? Our experience is that lecture style, text book training to address sexual harassment rarely works by itself. Interactive, engaging sessions which avoid regurgitating the legal definition of sexual harassment are likely to better engage a workforce.

Step 4: Implement the control measures

Implementation of the control measures may require changes to the way work is performed. This may require new procedures, additional training and supervision.

Step 5: Review and revise

Viewed through a risk management lens, polices and training which have typically been the tools of choice for addressing sexual harassment are low on the hierarchy of the controls. If organisations approach sexual harassment with a risk management approach, and identify appropriate higher order controls might we decrease instances of sexual harassment?

For example:

It is identified that in a highly competitive niche creative business which uses short term workers, recruitment is frequently informal and takes place at industry events.

All else being equal, the likelihood of (an allegation of) sexual harassment is higher in these circumstances than if recruitment were to occur in an office where a formal interview was conducted with a representative mix of interviewers.

The organisation seeks to minimise the risks, by putting in place processes that ensure even when contacts are met at industry events, a formal interview occurs within working hours in the office environment.

These control measures are reviewed and reviseded. Ensure the control measures remain effective. Are complaints of sexual harassment decreasing? What does formal and informal consultation with workers tell us about the effectiveness of controls?

We are working with our clients to trial this approach – combining our specialist expertise across workplace health and safety, and employment law.


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In the last working week of 2017, the Victorian Government quietly released the Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria. As we settle into the new working year, we consider whether the Review is likely to change the compliance and enforcement landscape in Victoria – whether more ‘carrots’ will be proffered, or whether duty holders will suffer more ‘stick’.

Is the Review likely to result in a seismic shift of compliance and enforcement activities for occupational health and safety offences in Victoria? Probably not. However, this is no bad thing – it symbolises an old adage that “if it ain’t broke, don’t fix it” – we have previously commented that this adage is a sound approach to regulatory and policy reform.

Rather than fundamental change, the report indicates incremental changes to the way WorkSafe Victoria is likely to:

Plan and target compliance and enforcement activities

Publishing its annual compliance and enforcement priorities.

Adopting a risk based approach to compliance and enforcement activities.

Establishing performance based measures which reflect health and safety outcomes.

Responding to the changing workplace context (ie the “gig economy”).

Communicate and implement its compliance and enforcement framework

Identifying and documenting its compliance and enforcement framework with a guide developed by mid-2018.

Communicating the circumstances in which each compliance and enforcement tool may be used.

Developing a process to regularly review documents in the compliance and enforcement framework.

Updating the visual representation of its regulatory approach.

 Provide information and support to duty holders

Engaging more with stakeholders in shaping its strategies.

Being increasingly proactive in risk scanning and monitoring.

Publishing its research agenda.

Increasing the amount of published guidance and resources including some inspector checklists.

Implementing targeted media campaigns.

Increasing the publication of enforcement outcomes.

Collaborate and engage with other regulators and duty holders.

Introducing infringement notices for some offences.

Continuing to use enforceable undertakings (EUs) with an updated policy on when an EU may be accepted and what an EU may contain.

Undertaking “blitzes” of particular industries/high risk activities.

Increasing strategic prosecutions of offences in priority areas and for exposure to risk (as opposed to reactive prosecutions of injuries and fatalities).

The proposed reforms therefore seem to offer a balance of carrot – by way of greater transparency on WorkSafe’s compliance and enforcement activities and some stick – in the form of the suggested infringement notices and increased prosecutions in strategic areas and for exposure of persons to risk.
As the year progresses, it will become clear which of the recommendations assume priority and whether our prediction of only incremental change is correct.

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Throughout 2017 we have been supporting clients to prepare for changes to the Heavy Vehicle National Law (HVNL), effective mid 2018.

In our Safeguard Series, we partnered with the Australian Logistics Council (ALC), highlighting how broad the impact will be on your business, your board and your senior executives. There are a number of resources available, highlighting the risks and pressure points.

The road ahead – the industry trends likely to impact the laws

The industry will continue to grow. It is estimated that truck traffic will increase by 50% by 2030. By 2027, the federal government will have committed AUD $75bn in infrastructure funding to (among other things) develop new transport routes.

Achieving nationally consistent legislation remains a challenge. The National Transport Commission‘s (NTC) latest analysis of the implementation of transport reforms recognises that Western Australia and the Northern Territory not adopting the HVNL creates “significant impacts on industry that operate between WA/NT and the others states”. Hopefully, a greater level of national consistency can be achieved in the future.

The use of telematics will grow. The NTC announced a review of the use of telematics for regulatory purposes to find ways to encourage further take-up and realise safety and productivity benefits.

With new technologies come new risks. New technologies which have the potential to distract drivers have been a growing factor in road safety incidents. To continue to achieve the overall improvement in road safety experienced over the last decade, an approach to reduce driver distraction is required.

The driverless future is closer than ever. Driverless trucks in the Pilbara have now moved more than 100 million tonnes of earth. On the public road, the framework has been established for testing of driverless vehicles. A commitment has been made to have a regulatory framework in place for automated vehicles by 2020.

The black spots, and changes to come

Further reforms of the HVNL were approved by the Transport and Infrastructure Council in May 2017. 

If passed, these reforms will further amend the HVNL to:

  • Increase twin-steer axle mass limits.
  • Extend the positive due diligence requirements on officers to include the non-chain of responsibility offences for which executive officers are currently liable.
  • Revise the heavy vehicle national registration provisions and the heavy vehicle standards.

Vehicles approved to performance based standard level 1 will be able to access the general road network. If amendments agreed to in November 2017 are passed into law.

Updated guidance and codes have been announced. 


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Does an employer have to let a union official in?
Only if they have a permit!

Right of entry disputes are common – partly because of the multiple laws that at a glance seem to overlap in a way that can be confusing. The latest chapter in this saga has recently played out in the High Court. The good news is there is now additional clarity that can be applied in practice when the union comes knocking.

Why is this issue controversial?

Employers want to conduct their business without interference. Union officials want to represent their members in the workplace. This results in a natural degree of tension – which can be stressful when there is a health and safety concern.

The laws provide a rulebook that regulates both unions and employers if they can’t agree on entry. Unfortunately the laws are complex and there is an overlap which has been confusing in practice. Under the Occupational Health and Safety Act 2004 (Vic) (and similar provisions in the Model WHS Act) health and safety representatives (HSRs) can request assistance to help them fulfil their duties. But what if the assistance is from a union official without a Fair Work Act 2009 right of entry permit?

Both sets of laws have a long history – reflecting different policy imperatives. Safety laws prioritise HSRs getting assistance to resolve an issue. Right of entry permit laws ensure that the right is exercised consistently with the objective of balancing union interests and employer interests. The permit regime results in ongoing regulation of permitholders and the right to enter can be removed if the person in question behaves inconsistently with that privilege, eg, by breaching workplace laws.

Until now there was a question about how to deal with the situation if the union official was seeking to enter under state WHS laws, eg, if the site HSR asks a union official to “assist”. At first glance, these state provisions sit entirely outside the “right of entry” regime. Does that mean the official without a permit can lawfully come in? Are they trespassing? Is the employer entitled to have them removed (and will the police assist)?

A victory for common sense – Powell v Australian Building and Construction Commissioner

Highlighting the need for a practical solution, in the recent case, the Federal Court decided that the CFMEU official still had to comply with the entry permit regime, even where he had been invited into the workplace by the HSR under the Victorian OHS law. The Judges found there was no reason of common sense or policy why different arrangements would apply depending on the reason for entry – noting that this could lead to confusion in practice, undermining the utility of the entry permit regime.

WorkSafe Victoria and the CFMEU official sought to appeal the decision on the basis that this excludes the capacity of HSRs to seek assistance from union officials outside the right of entry rules. The High Court dismissed the application for special leave to appeal– meaning the decision of the Federal Court stands.

Know the rules and be ready to act!

Health and safety issues can flare up quickly requiring an immediate response – with everyone under pressure. Nobody is doubting the importance of ensuring that HSRs can deal with health and safety concerns including having access to specialist assistance as required as quickly as possible. This is why it is important to have clear rules that everyone can follow.

The state legislation (and the guidance that may be issued by regulators or inspectors) will not necessarily present the full picture because you need to consider both sets of laws. Recognising that it can be difficult to “stand your ground” in a high pressure situation, employers should have a protocol in place which deals with all the issues and ensure that managers are prepared to respond when a union official arrives. The legal position is now clear: a union official will always need a right of entry permit even if they are seeking to enter under state laws.

This outcome is a win for common sense. It means that the rules are clear – which is good for both industrial relations and for achieving a quick resolution of health and safety concerns.


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Working with Australia’s leading organisations means we are supporting them on a range of strategic business initiatives, to drive safety outcomes in the workplace of the future. These organisations are extending themselves beyond the regulatory assessment of ‘reasonable practicability’ and embracing innovation. Here is a snapshot of some of the pioneering work.

Collaboration is creating relevance

Addressing issues including mental wellbeing and workplace responses to domestic violence and sexual misconduct require multidisciplinary approaches. The risk management skill set which health and safety professionals possess has an important part to play in a holistic approach that should be used in collaboration with human and resource management professionals. The most creative organisations understand that cross-disciplinary teams are best placed to respond to new workplace challenges and facilitate pooling of ideas from safety, human resources, industrial, wellbeing and other professionals – working in true collaboration.

The recent discussion paper on Mentally Healthy Workplaces in New South Wales recognised the importance of identifying organisational psychosocial risks together with individual psychosocial risks such as bereavement, or new parent fatigue which may render workers more vulnerable to psychosocial risks at work. A traditional risk management approach does not provide a complete answer and organisations are responding by allowing safety professionals to upskill to identify  meaningful strategies that will improve health and wellbeing.

Networks and contacts

Safety professionals cannot possibly hope to be subject matter experts on every topic as their work, and the tools available to them, expand. Take for example, big data. We all know that if we can harness and mine the wealth of data we capture, we are more likely to be pro-active and could, for example, better predict issues like plant break down or fatigue onset. This opportunity sees safety professionals reaching for their metaphorical rolodex to build an understanding of, or the ability to source, specialist skills in data analytics and coding.

Pioneering safety professions are building and maintaining wide networks of specialists from a variety of fields and encouraging their teams to do the same. Being less insular makes the profession more relevant and responsive.

Some of the most pioneering safety initiatives we have seen in recent times draw on the skills of illustrators, computer animators, actors and advertising creatives (to name a few). As our appetite for digesting written information decreases, the most innovative organisations will foster collaboration between safety professionals and others to ‘keep it real’.

Viva la refinement

Avoiding the temptation to ‘throw the baby out with the bathwater’ when responding to challenges. Asking if existing frameworks, with refinement, will address new challenges. The supply chain risk of modern day slavery is a good example. Where the pre-qualification processes, system of inspections, audits and verification that are familiar tools to the safety professional are ones which, with refinement, can be deployed to address aspects of working conditions at the ends of supply chains so they are not exploitative.

Nimbleness and harnessing technological platforms

We have previously written on the employment law challenges which arise from highly flexible workforces. For safety professionals a similar set of challenges arise because there are likely fewer traditional ‘touch points’ with workers and less ‘face time’ when compared to more traditional models of work.

Increasingly, flexible approaches are being used to induct workers, maintain training, provide an appropriate level of supervision and create and maintain the safety culture businesses desire in highly flexible workforces. Nimble organisations are supporting safety professionals to build multi-disciplinary teams to change their modes of delivery and to embrace the same technological platforms which allow for the flexibility in employment to communicate safety messages.


Our ‘future of work’ series has been considering how businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while increased communications potential has meant that many workers can perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

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The community was rightly outraged by the tragic loss of life in incidents at Dreamworld and Eagle Farm. The recent legislative response to those tragedies has attracted significant media attention, with laws recently rushed through Queensland parliament, introducing new offences into the Work Health and Safety Act 2011 (Qld), the Electrical Safety Act 2002 (Qld) and the Recreational Water Activities Act 2011 (Qld), from 23 October 2017.

Much of the focus in the legal media and beyond has been on the headline grabbing figures of penalties of up to AUD$10m for body corporates and 20 years imprisonment for individuals – making these the toughest workplace penalties in Australia at the moment. The new offences respond to the sense of outrage, but with the attention on the penalties, there has been little pause to ask:

Are these laws an appropriate response to the tragedies?

To coin the phrase often used by lawyers, “the jury is still out”.

Looking at the introduction of the industrial manslaughter offences in the Work Health and Safety Act, we make the following observations:

  • The Act has the primary objective of protecting workers and other persons against harm to their health and safety.
  • The Act already provided for terms of imprisonment for the most serious types of offending.
  • It is not clear how the recent introduction of longer terms of imprisonment and higher penalties will help regulators prevent injury, illness and death as correctly highlighted by the Bar Association of Queensland, there has only been one prosecution of a category 1 offence (the most serious offence under the WHS Act) in Queensland so far.
  • There is no real evidence that the existing laws were ”inadequate”. We are not suggesting that a tragic loss of life in a workplace should not result in a detailed examination of the circumstances and, where there is evidence of serious offending by a duty holder, regulators ought to take enforcement action. The query is whether regulators in Queensland were unable to adequately do so prior to 23 October 2017.

Will the new offences have unintended consequences?

One serious concern amongst businesses, their workers, key stakeholders and others ought to be whether the introduction of longer terms of imprisonment and higher penalties and threats of greater enforcement will encourage business and industries to learn from failure in an open and transparent way.

The prospect of very severe (and, in particular, personal) penalties, will be an impediment to sharing valuable safety learnings in industries, at least until the legal processes have run their course. This can take up to five years in some circumstances. Will valuable lessons be lost?

This can only be detrimental to health and safety outcomes – the very opposite of what the laws seek to achieve.

We all want healthy and safe workplaces and appropriate responses to serious offending, but this should not be at the expense of an environment that encourages learning and sharing. We hope that the approach taken to the enforcement of the new offences does not create a new form of outrage caused by business and individuals justifiably exercising significant caution about sharing safety learnings with others in a timely fashion.


We raised the question in our related blog, Victorian OHS enforcement: why change the game plan when your team is on top? If the ‘end game’ is improving health and safety outcomes, are better options available?

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On Friday 24 March, Western Bulldogs kicked off their 2016 premiership defence with a tenacious win against Collingwood. Round 1 of the 2017 AFL season also coincided with the introduction of the WorkSafe Legislation Amendment Bill 2017 (VIC).

This Bill includes changes to the rules by which WorkSafe Victoria can prosecute alleged indictable offences against the OHS Act outside the current two year limitation period. Continue Reading Victorian OHS enforcement: why change the game plan when your team is on top?

boxing-gloves-375473Ronda “Rowdy” Rousey was at the top of her field, training hard and winning harder.  Her success had built her brand.  So much so that she diversified into acting with parts in two big budget, big publicity movies. Then it happened. Her reputation did not match her performance. Immediately the questions started – would she come back?

As the saying goes ‘the bigger you are the harder you fall’. Continue Reading Would you survive a knockout?

Phone

Are you getting the best advice when it comes to health and safety compliance?

When we deliver legal briefings, both in Australia and internationally, top-of-mind for Boards and Senior Executives is the health, safety and welfare of people affected by their operations. This is how it should be – so everyone breathe a collective sigh of relief (insert sigh).
When it comes to seeking commercially sound legal advice on these issues – whose advice should you be seeking? Continue Reading A word of advice, on advice

PokemonOur colleagues in the US recently published an article on Pokémon GO, Nintendo’s augmented reality game involving scrambling around real-world locations to ‘catch’ virtual beasts with your smart phone. (There’s a sentence I’ll never write again!).

The article explains that, despite the game’s popularity, employers have cause for concern in relation to data and security and workplace safety.

Pokémon GO is similarly taking our fair shores by storm. It seems all too easy to poke fun at this new gaming mobile app. However, as the article highlights, if employees are out to ‘catch ‘em all’, employers could very well find themselves caught in a nasty game of software security, privacy and workplace safety issues.

Anime (see what I did there?), that’s enough from me.

I hope you enjoy the read – Pokémon NO: New app creates risks for employers