Wayland Legal

From 4 April 2018, Nexus Lawyers (WA) Pty Ltd will change its name to Wayland Legal Pty Ltd.

Wayland Legal is a boutique Western Australian based law firm specialising in workplace health & safety and employment law.

As part of the change, I will be moving my online articles and videos to my new website, which you can find HERE.

I will keep the My Safety Thoughts blog online so people can access past articles, and there will be a link to My Safety Thoughts on the new website.

Go to the website, www.waylandlegal.com.au to find out more.

Process or Outcome?

Today I was reading a LinkedIn post lamenting the state of health and safety management, evidenced by too many “safety stickers” on a piece of machinery.

A commenter noted that the situation was “absolute madness“, which doesn’t keep anyone safe. Much of the conversation from there was focused on whose “fault” it was and we ended up with all of the usual suspects in the firing line – insurers, lawyers, consultants and so on. Probably quite justified too.

To my mind, this issue illustrates the disconnect apparent in health and safety management between “process” and “outcome“. It seems to me that health and safety management is obsessed with process – the way that we “do” safety. This obsession means that every few years somebody reinvents the way we do safety, or the way we do parts of safety. As evidence of this you only need to think of the transition from safety culture, to safety 1, through to safety 2 and now safety differently – with god only knows what in between. On a micro level, just think how many iterations of the JHA you have seen during your working career.

What makes this more interesting is the process doesn’t really matter. How you “do” safety is not really an issue. What is important is whether you can show your process achieves the outcome it was designed for.

The table below lists a series of cases looking at the “outcome” of understanding hazards. The “processes” were all different: documented, undocumented, buddy systems, on-the-job training and so on. But even where the processes were the same this did not determine the decision – the decision was determined on whether the outcome, and understanding of hazards and risks, was achieved.

Process v outcome

So, the question is not how fancy, new or shiny your process is. The question is whether it achieves the outcome.

Update: Access to the Perilya decisions

A few people have been in touch with me about my recent posts on the Perilya decisions;

What are our obligations to careless workers?

Are your JHAs worthless?

When is a person conducting a business or undertaking?

It seems when you try to access the decisions through the links in my blog, or otherwise try to find them online, they are coming up as “restricted”.

I have been in touch with Caselaw NSW who have told me the decisions have been temporarily restricted to make amendments.

I will provide another updated once the decisions are available, and make any amendments to my articles if the amendments make any difference to my original comments.

Regards.

Are your JHAs worthless?

Worthless” is not my phrase, and I make no assumptions about the JSA process as it is applied in your workplace, but I am interested in whether your organisation could pass the “worthlessness” test set out in the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28.

By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate a load cell which measured the weight of ore in the flask.

The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

While Mr Pollard was working, the weights and basket came out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.

The case canvassed a range of issues in safety management, which I will look at in later posts, but for now, I want to consider the roles of the Job Safety Analysis (JSA).

One of the allegations pleaded by the prosecutor was PBHL failed to “assess the adequacy of the Job Safety Analysis”.

The Court took its direction for what a JSA required from PBHLs own documents:

I start by looking at what is required of a JSA. This may be discerned in the first instance from the defendant’s documents.

What is required in a JSA is detail that shows:

  • how the hazards were identified;
  • how the risks were assessed;
  • how the decisions around necessary controls were made.

The Broken Hill Job Safety Analysis Procedure set out six steps in the JSA process.  They included:

  • A JSA must be conducted in a team setting.
  • A JSA should be done on the job site
  • Task supervisors must ensure compliance with the requirements for a JSA.

None of these requirements were met.

PBHL’s procedures said:

The success and value of the risk management process is determined by the quality of the consultation and communication process. Success hinges on involving the right people and using the right information, expertise and experience. Hence, identification and participation of stakeholders is critical.

The Court found that there was “no consultation or communication with the correct stakeholders”.

PBHL’s procedures said:

The less formal nature of … JSAs can present a serious risk in itself. It is essential that these tools are used carefully. If a significant or uncertain risk is missed or not properly managed, participants may be lulled into a false sense of security. Some things to look out for include:

  • New tasks or one that is being done in a new place or using a new method

In relation to this, the Court said:

This was a new task using a new method. The “serious risk” warning should have been heeded.

The Court closely examined PBHL’s own requirements for its JSA process, ultimately finding the process to prepare the JSA was seriously flawed, the JSA itself was inadequate and:

The risk assessment did not involve all those doing the work and was not communicated to all of them. It stood the risk of being and was, for reasons I give, “next to worthless”.

It is also worth noting, the Court’s use of the term “worthless” is not random. The Court has adopted the language of “worthless” from PBHL’s own documents.

PBHL’s Risk Management Guideline gave several directions about risk management, for example:

A risk assessment is worthless if it does not involve communicating with the correct stakeholders.

And

Ultimately a risk assessment is next to worthless if it is done in isolation without involving those doing the work, or not communicated to all those doing the work or affected by the work.

The Court did not have to look for language to criticise the JSA process, it simply adopted PBHL’s own views.

PBHL employees accepted the inadequacy of the JSA, for example, Mr Harris, a shaft and fixed plant supervisor:

… agreed that it was not appropriate for one person to simply to write out a JSA and then present it to others without those persons having input into its development. He agreed that a JSA should be prepared as a team, particularly as some members of the team may not be aware of, or understand each of the steps of the task. He noted that this was an important consideration, particularly as there might be persons with different subject expertise performing various parts of the task. He also agreed that it would be important to have all members of the team involved in completing a JSA because if only one person completed the JSA, there was a risk that a step would be missed in the process, or a hazard missed or an appropriate control measure not identified.

The point to take away from a case like this is not the specific technical failures of PBHL, or how the work was planned or implemented. Rather, the case highlights:

First, organisations are accountable for what they say in their documented processes.  If you are going to describe an in-depth, potentially convoluted process for preparing documents like JSAs, you need to recognise you are prescribing the standard against which you will be measured.  Write your documents with the end user in mind to give workers some chance of following them.

Second, regardless of what you document, you need to understand if it is implemented and effective.  Although it is not discussed in the PBHL case, it is extremely unlikely this case was the first time the JSA procedure was ignored in so many fundamental ways.  The history of workplace accidents in Australia is fairly compelling – frontline risk assessment documents like JSA’s have little meaning to frontline workers and are often seen as an exercise in bureaucracy: A paper process workers have to complete before the work can commence.

The question that comes out of a decision like the PBHL case has nothing to do with PBHL.  The question is, how do you know that your JSA procedures are any better in practice?

When is a person conducting a business or undertaking?

A recent NSW District Court decision, Inspector Nash v Perilya Limited [2018] NSWDC 29 (read decision), looks at the interesting question of when a person is conducting a business or undertaking.

On 28 February 2018, Perilya Broken Hill Limited (PBHL) was convicted of charges under the Work Health and Safety Act 2011 (NSW) (Act). PBHL was a wholly owned subsidiary of Perilya Limited (Perilya), and Perilya was also charged with offences under the Act, arising from the same incident.

Perilya argued it was not conducting a business or undertaking in the operation of the mine.

In the end, the Court found Perilya was not a Person Conducting a Business or Undertaking (PCBU) under the Act.

The prosecution had argued several matters in support of their position, including;

  • Perilya published documents pronouncing that it owned and operated the mine.
  • The HSE Management System Overview was published in the name of Perilya and recorded that the Perilya Board had a role to ensure that effective and appropriate systems were in place to ensure safety controls were adequate.
  • Perilya’s Board received HSE reports in relation to the operation of the mine.
  • Employees of PBHL reported to the Board of Perilya about HSE at the Mine.

Relevantly, Perilya underwent significant changes in 2008, because of the Global Financial Crisis. This included:

  • Downsizing its Perth office from 40 people to 8.
  • Establishing PBHL as a standalone business as Perilya had no staff to provide support services.
  • Disbanding the HSE board subcommittee, after which Perilya did not have any committee dealing with health and safety, either in its own operations or any of the entities it owned.
  • The PBHL board had responsibility for HSE, including developing its own policies and procedures.
  • The Perilya board was responsible for oversight functions, rather than hands-on management and had no day-to-day involvement in the activities of PBHL.

After the downsizing the only operating asset was PBHL and it was made a standalone business unit.  It had the necessary people, facilities, capability and assets to conduct business activities without support from a corporate office.

The Court noted Perilya:

 … could have controlled everything that happened at [PBHL] but did not have the resources to.

With respect to HSE reporting, the Court said:

The Perilya board considered HSE reports, but did not make any decision on them. The HSE reports considered by the Board were the consolidated group reports rather than the individual reports from the subsidiaries. To comply with its disclosure and reporting obligations, Perilya would need to keep abreast of matters that could affect its share value, financial position or reputation. HSE would fall within that. It was by reason of Perilya’s disclosure obligations that it received reports.

And

The Perilya Board received a budget from PBHL annually or more frequently. The budget had an impact on Perilya. Likewise, for reasons of disclosure and reporting, Perilya necessarily had to receive this information.

In the end, the Court looked at the practical application of the relationship between PBHL and Perilya. The Court recognised it did not matter that Perilya could have chosen to take over and run the mine.  Being able to take over and run the mine because it was the sole shareholder of PBHL did not make Perilya a PCBU, rather:

It is what was happening in practice that is important

In practice, with only eight staff in Perth, it was impractical for Perilya to be involved in the operation of the mine, and day-to-day management of the mine was in the hands of PBHL.  The Court also said PBHL could change the HSE system without referring to Perilya.

This is not a case of Perilya transferring its duty to another. Nor is it a case of an agreement or arrangement purporting to limit its capacity to influence and control the matter in respect of which it had a duty. This is a case of Perilya ceasing to have control of the mine and its operations. Control must be more than a legal right to control otherwise every parent company with a 100% shareholding of a subsidiary would be, without more, under a duty under s19.

The Perilya decision shows that a close relationship between corporate entities is not enough to make either of them a PCBU.  What must be established is that an entity was conducting a business or undertaking, and in each case, this requires an examination of the relationship between the entities and their role in the relevant business or undertaking.

Swearing at work: Where are we now?

Many employers regard swearing and inappropriate language at work as misconduct, and often grounds for dismissal.  Unfair dismissal claims and other cases which consider swearing in the workplace recognise that abusive language can be misconduct, although it is another question again whether the “misconduct” justifies termination of employment.

On 23 February 2018, the full bench of the Fair Work Commission handed down its decision in Illawarra Coal Holdings Pty Ltd T/A South 32 v Matthew Gosek [2018] FWCFB 749, another case considering inappropriate language in a workplace context.

Illawarra Coal had employed Mr Gosek for more than 11 years, and he was the Lodge President for the Construction, Forestry, Mining and Energy Union (CFMEU).

A member of the CFMEU had made a complaint about a manager at Illawarra Coal, and Mr Gosek had represented the member in relation to this complaint.

The allegations in the complaint were not proven.

On 4 October 2016, Mr Gosek, who was not rostered for work, went to the pub and was drinking. During the afternoon Mr Gosek sent a text message to seven of his colleagues and his supervisor. The text message said “dogs”. The employees rang Mr Gosek to discuss the text. Mr Gosek could not remember what he said in these conversations, but it was not contested:

  • The phone calls involved tense and heated discussions.
  • Mr Gosek used inappropriate language and called his colleagues a variety of names including “f**king dog” and “dog c***”.
  • Mr Gosek was under the influence of alcohol at the time.

This outburst was related to the workers participation in the incident investigation, or as the Commissioner described it:

Mr Gosek intended to convey to his colleagues his disappointment as Lodge President about their role in the investigation and his view that they had not upheld union principles and they had lied to the investigator.

When the case was first heard, the Commissioner found that Illawarra Coal had a valid reason to end Mr Gosek’s employment, but the termination was harsh, unjust, or unreasonable and ordered Mr Gosek be reinstated.  One of the factors influencing the decision was a finding by the Commissioner that the type of language used was “commonly used in the mine”.

Illawarra Coal successfully appealed the decision.

While there were multiple grounds of appeal canvassed in detail by the Full Bench, regarding the specific conduct, two Commissioners found:

by focusing on the language and not the totality of the conduct the Commissioner downplayed the character of the conduct. The problem was not that Mr Gosek swore at this work mates. The conduct involved an expletive filled tirade which included threats directed at employees because they participated in an investigation.

In part the case is indicative of the difficulties faced by employers when assessing this type of conduct, because Commissioner Booth rejected the appeal, noting:

Although the conduct of the Mr Gosek on the day in question was clearly inappropriate, for the reasons detailed in this decision, the Commissioner took into account the conduct of the applicant and a range of other matters and concluded that the termination of Mr Gosek ’s employment was also unfair. That is, the decision reached by the Commissioner was that Mr Gosek’s behaviour was unacceptable but explainable. Therefore a finding the dismissal was unfair was available to the Commissioner. No error is revealed.

In my view, the case reinforces, rather than gives any new direction, about inappropriate language in the workplace.  The principles we can take away from decided cases, including this one are:

  • Prior warnings and repeat offences of swearing or inappropriate language in the workplace will support an employer’s decision to dismiss an employee.
  • Even if swearing is common in the workplace, it must be considered in context. It is one thing to swear in a general sense, it is another thing to swear aggressively and maliciously at another person, which is more likely to support a decision to dismiss an employee.
  • A single isolated incident of swearing, even directed at a person, is unlikely to justify dismissal.
  • While swearing, inappropriate language, or inappropriate behaviour, can be a valid reason for dismissing an employee, the dismissal must still be “fair”. Generally, this means that an employer must:
    • Give the employee an opportunity to explain their conduct;
    • Consider the conduct in context – why did it occur and were there any mitigating factors?
    • Consider the circumstances of the employee and any factors relevant to them, such as length of employment or prior performance.

Whilst misconduct cases often present difficulties for an employer, setting up clear processes to investigate and address misconduct while avoiding the temptation to “rush to judgement” will give you the best chance to successfully manage the situation.

Workplace bullying: Understanding the legal labyrinth

Recent allegations about workplace bullying and workplace conduct in public authorities in Western Australia have thrown the legal context of workplace behaviour into sharp relief.

Workplace “bullying”, while having a specific meaning in legislation, has become somewhat of a catchall phrase for a range of workplace behaviour spanning several legal contexts.

Historically, bullying has been understood as an employment issue, often in the context of discrimination or harassment.  From time to time, bullying has crossed into the workplace health and safety jurisdiction, but in most cases, this happens when the “bullying” results in some sort of physical outcome.  For example, the Café Vamp case involved prosecutions under Victorian health and safety legislation, with significant fines for the employer and several individuals following horrific workplace bullying leading to a young worker suiciding.

In another case, a New South Wales company and two of its directors were prosecuted when a 16-year-old worker was physically assaulted in a workplace “hazing” (Inspector Gregory Maddaford v M A Coleman Joinery (NSW) Pty Ltd).  It will be interesting to see what regulatory or legal approaches authorities will take in relation to the recent allegations of hazing at university colleges.

In an article published by ABC News online on 28 February 2018, the city of Perth was allegedly accused by staff of creating an “unsafe workplace” because of “sustained and persistent poor conduct” by elected members.  The article goes on to explain successive CEOs had taken leave, variously described as “stress” and “personal” leave, allegedly caused by breaches of an employment contract in one case and an “unsafe workplace environment” another.

Another article posted by ABC News Online reports that WorkSafe Western Australia is investigating the Southern Ports Authority over allegations of a “toxic culture of workplace bullying” in the Authority.

This last example shows a shift in attitude by the regulator, away from physical harm to investigating allegations of bullying in their own right.

We have also seen examples where an employer’s response to concerns about behaviour in the workplace can result in psychological harm and consequent legal proceedings.  For example, in Campbell v Woolworths [2017] NSWWCC 213, an employer was liable for an employee’s major depressive disorder following a workplace investigation.

Whatever the headline descriptor might be, bullying, harassment, discrimination and so on, it is apparent “psychological harm” issues arising from this behaviour cut across a raft of legal frameworks including unfair dismissal and general protections claims under the Fair Work Act, harassment and discrimination claims under various state and Commonwealth legislation, workers compensation claims, workplace health and safety legislation and in some cases the criminal law, for offences such as assault.  I am sure there are others.

Workplace behaviour and the potential harm it can cause is a significant workplace risk.  Employers need to make sure they have adequate processes to minimise the risk of inappropriate behaviours and respond to them if they occur.  The content of those processes will vary from organisation to organisation, but I think we can say with some confidence, just relying on Employee Assistance Programs will not be enough.

For the health and safety industry the whole concept of workplace behaviours and psychological harm is a fundamental challenge to the entire structure of how we do business.  At the most basic level, and I have written about this before, there is an arguable case that current practice of health and safety contributes to psychological harm in the workplace.

But, even if you are not prepared to go that far, I think it is strongly arguable that health and safety legislation, regulators, and health and safety practitioners are not well-equipped to deal with the complex environment of psychological harm.  Health and safety legislation in Australia, despite the deference we might have to the concept of “health”, is fundamentally concerned with fatalities and significant physical injuries in blue-collar work – mining, construction, agriculture, oil and gas and so on.  Almost exclusively, inspectors working for health and safety regulators come from a technical, operational or engineering background – at least the ones who appear on site.  The health and safety industry is built on an engineering paradigm, very well-equipped to deal with heavy industry, but poorly disposed to the management of people and their psychological well-being.

This whole discussion, in my view, is made more interesting because Safe Work Australia is currently asking for comments as part of their review of the model WHS laws.  Unlike the lost opportunity that was the introduction of WHS laws in the first place, let’s hope this review can look beyond the narrow, 1970s approach to workplace health and safety and try to incorporate all (or some) of the complexities of a modern working environment.  Further, let’s hope the review looks beyond the narrow self-interest of the health and safety industry to incorporate the whole spectrum of concerns about workplace “well-being”, including compensation, discrimination, harassment, employment relationships and so on.

In a modern, sophisticated society, personal well-being at work should not be an elaborate version of the Monty Hall Problem, nor left to the whim of regulators and their choice of which cases to pursue.  Any serious conversation about WHS legislation would include, at a minimum, alignment with workers compensation legislation but should understand and incorporate – or at least align to – employment and discrimination legislation.