workplace health and safety

On 12 December 2013 Seyfarth Shaw announced our Australian offices were officially open for business. Today marks five years since those doors opened.

What better way to reflect than to ask ourselves, what have been the biggest changes in our specialist areas of law over those five years?

“It has become increasingly difficult to make enterprise agreements that are compliant, genuinely enterprise-focused and fit for purpose due to increasing modern award complexity combined with the unworkable approach adopted in decisions of the Fair Work Commission and Federal Court to the BOOT and other procedural aspects of agreement making.”
– Rachel Bernasconi

“Over the past five years, I have observed the tension between sharing improved safety lessons and legal risk. I am concerned about compounding this potential unintended consequence with the rise of the industrial manslaughter offence.”
– Paul Cutrone

“I think the biggest development in employment and industrial law is how courts and tribunals are grappling with modern expectations of what ‘working’ looks like. This means they are looking at how to deal with the gig economy, flexible working arrangements (including working from home and telecommuting), employees wanting lengthy periods away from work and ‘portfolio’ careers. There is a real tension as employers seek flexibility to ensure customer demands are met while balancing the costs of labour vs employee representative groups seeking to pull the other way, seeking automatic casual conversion rights and laws that treat gig workers as employees. The next five years will see this tension play out in the policy debate.”
– Ben Dudley

“The most significant change I have seen is increasing employee mobility. Employees of large international organisations are spending more time on assignment in locations throughout the Asia Pacific, on both a short-term and long-term basis. We see this occurring as a result of organisations expanding their operations throughout the region. Employers are increasingly seeking specialist employment advice on both a single jurisdiction and multi-jurisdiction basis, including to confirm compliance with new frameworks and to ensure the appropriate arrangements are in place.”
– Luke Edwards

“The last five years has cemented a realisation that has been brewing for the last ten years. Enterprise bargaining amidst the current regulatory environment has reached its use-by date for many employers. Enterprise bargaining is no longer an opportunity to secure win-win outcomes but rather a process aimed at reducing the risk to on-going operations.”
– Chris Gardner

“There has been a shift away from spending money on large, wordy paper systems written by lawyers. I question whether anyone is any safer once they are developed. Smart organisations are investing heavily in understanding their key risks, controls and testing the effectiveness of those controls. This is where their efforts need to be.”
– Jane Hall

“One of the most significant developments I have seen in the last five years is the rise in the influence of workplace regulators. Consistent with the overall dynamic facing corporate Australia, we are seeing far more active, better resourced and assertive regulators across various workplace issues. The environment is one of heightened focus on compliance with workplace and safety laws; the financial and reputational stakes are higher than ever for employers who fall short.”
– Darren Perry

“Over the past 5 years, we have seen a number of areas where our Fair Work Commission cannot speak with one voice. While many parts of its jurisdiction have been affected, it is most noticeable in individual claims. How the Fair Work Commission balances even very serious conduct against mitigating factors remains unpredictable and has resulted in flip-flopping which creates ongoing uncertainty. This is costly and time consuming. Faced with cost and uncertainty we are seeing our clients feel pressure to settle rather than defend a sound and rational decision to uphold reasonable standards of conduct. The absence of clear statements of principle from the Fair Work Commission (such as we had in the past) and its increasingly subjective approach creates uncertainty, inefficiency and unfairness of a different kind.”
– Henry Skene

“The changes have been many and varied. What I am seeing is increased competition across a number of industry sectors, which means there is a war to retain and protect the most talented staff, who are the engine of the business. This has led to a big uptick in restraint of trade work – a highly specialised area which can be compared to a game of chess. We are passionate about this area of law and have built a specialist service model that in our opinion is market leading – whether it be getting into court within a matter of days when necessary, to defending applications for injunctions or damages. Our clients recognise that a good restraint is a business asset, and invest accordingly.”
– Michael Tamvakologos

On behalf of the team, we would like to thank the truly valued supporters of Seyfarth Shaw in Australia. We are excited to continue to work with you into 2019, and beyond.


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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. 


Subscribe to receive the next Workplace Law & Strategy blog direct to your inbox – where we will continue our focus on the HVNL and CoR, as we move towards implementation.

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?