Turner Freeman Lawyers

Seminar Paper

Equal Opportunity, Discrimination, Harassment & Occupational Health & Safety March 2005

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EQUAL EMPLOYMENT OPPORTUNITY This expression generally refers to the following: •

All employees having equal access to the opportunities that are available at work;

•

Ensuring all employees are treated fairly and respectfully and are in no way subjected to discrimination or harassment;

•

Ensuring that recruitment, selection and training is based on merit.

These principles are consistent with the operation of the Sex Discrimination Act and Anti Discrimination Acts. In addition, Equal Employment Opportunity is specifically covered in the Equal Opportunity for Women in the Workplace Amendment Act 1999 (Cth) (EOWW Act).

Why do we need policies for equal employment opportunity? Key indicators such as pay rates, the amount of time spent in full time work and women's lifetime earnings demonstrate that historically, women have not been afforded the same employment opportunities as men. Some recent studies suggest that these trends are ongoing and are evident within the legal profession.

SOME KEY FINDINGS: The Keys Young practising certificate survey data for 199920006 •

Of the women surveyed just 12.7 per cent of women earned over $100,000 compared with 29.15 per cent of men;

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44.7 per cent reported earning less than $50,000 compared to 26.7 of men;

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Women are twice as likely to work in the public sector than men;

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Women comprised just 9 per cent of equity partners;

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37 per cent of the women surveyed reported gender discrimination and harassment compared to 5 per cent of men.

6

Susan Israel "Gender Issues: disparities continue between women and men in the legal profession" (2001) 39 (1) LSI 63 Turner Freeman

-2LEGISLATIVE PROVISIONS The principles and practice of EEO are promulgated by the EEOW Act which amends the Affirmative Action (Equal Employment Opportunity for Women) Act, 1986 (Commonwealth). The EEOW Act is essentially a statement of principles and contains guidelines for employers. The objects of the Act are stated at section 2A as being: (a)

To promote the principle that employment for women should be dealt with on the basis of merit; and

(b)

To promote, amongst employers, the elimination of discrimination against, and the provision of equal opportunity for, women in relation to employment matters; and

(c)

To foster workplace consultation between employers and employees on issues concerning equal opportunity for women in relation to employment.

Under section 6 of the Act, "relevant employees" are required to: (a)

Develop an "equal opportunity for women in the workplace" program, considering the seven employment matters as set out in section 3 of the Act.

These are: (i)

recruitment and selection procedures;

(ii)

promotions, transfer and termination of employment;

(iii)

training and development;

(iv)

work organisation;

(v)

conditions of service;

(vi)

arrangements for dealing with sex based harassment; and

(vii)

arrangements for dealing with pregnancy, potentially pregnant employees and employees who are breastfeeding.

These matters are all areas where unlawful discrimination in employment may occur under the SDA and the Anti Discrimination Act. If an employer complies with the EEOW Act, their potential liability to unlawful discrimination claims will be minimised. (b)

Relevant employers are also required to report annually to the equal opportunity for women agency on the workplace program pursuant to Part IV of the EEOW Act.

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-3Equal Opportunity for Women in the Workplace Programs There are seven stages set out in the Act to be followed. To summarise, these are: (a)

Confer responsibility for the development and implementation of the program on to an appropriate person.

(b)

Prepare a workplace profile by consulting with employees.

(c)

Analyse the issues for women in the workplace considering each of the employment matters.

(d)

Prioritise issues for action.

(e)

Address those priority issues.

(f)

Evaluate the effectiveness of actions.

(g)

Summarise future actions as a result of the evaluation.

A relevant employer must have a workplace program for each reporting period.

What is a relevant employer? 1.

A higher education institution that is an employer; or

2.

A natural person, or a body or association (whether incorporated or not), being the employer of 100 or more employees in Australia.

3.

Not the Commonwealth, a state, a territory or an authority.

What are the reporting periods? •

An employer must prepare a public report pursuant to section 13 of the Act every twelve months unless the requirement has been waived.

•

The public report must contain information about the workplace profile and analysis, the employer's actions and plans.

•

The report must be submitted between 31 March and 31 May each year.

•

An employer can be exempted from reporting requirements on its own request or by its own initiative. If an exemption is granted the organisation will be exempt from reporting for a fixed period, but it still must have a workplace program in place. Turner Freeman

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Before the agency will waive the reporting requirements: the organisation must have complied with the Act for three consecutive reporting years prior to applying for waiver; the organisation has to demonstrate it has taken all reasonably practicable measures to address the equal opportunity issues for women identified in the analysis of the workplace relating to reach of the employment matters.

The Advantage of EEO The New South Wales Law Society's Equal Opportunity Handbook and Model Policies lists a number of advantages of having an EEO policy. These include: higher workplace morale; organisations attracting the best employees (discriminating reduces the pool of applicants to choose from besides being unlawful); reducing staff turnover; and attracting a strong client basis (especially government and semi-government clients). Equal employment opportunities are essentially statements of principle designed to assist employers in their compliance with the Sex Discrimination Act and Anti Discrimination Act.

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ANTI DISCRIMINATION – NEGOTIATING JURISDICTIONS There are a number of different pieces of legislation which provide redress and protection in the area of anti discrimination law. While these Acts all have common general goals, they tend to achieve those goals in different ways. Generally speaking, discrimination laws follow a common format: •

First setting out the definition and scope of the regulated behaviour;

•

Second setting out the areas of public life to which the Act applies; and

•

Third setting out the exemptions to the Act. These exemptions are not exhaustive, as the various anti discrimination tribunals have the power to grant further exemptions.

An examination of the redress available to those alleging acts of discrimination shows the relationship between law and public policy. Successive state and federal governments have taken more or less expansive views of the constitutional powers and political will required to legislate in respect of discrimination at the federal level. These aspects of anti discrimination law demonstrate the difference between laws of general application (for example, those laws which prohibit discrimination on the ground of age, regardless of the actual age of the complainant) and laws which are specifically aimed at a defined group which is seen as requiring special protection (such as the NSW law prohibiting discrimination on the ground of homosexuality, as contrasted with the federal law prohibiting discrimination on the ground of sexual preference). While there may be an advantage in enacting laws for the benefit of one particular group, there are also attendant difficulties. For example, the benefit of the NSW state legislation is available only to homosexual persons. It is not clear that ‘homosexual’ could comfortably encompass bisexuality, intersexuality, lesbianism, or even the curious contemporary phenomenon of metrosexuality. It is important that practitioners are aware of the differences between remedies available for the same (or substantially similar) acts of discrimination. These differences arise from the differing policies which drove the enactment of the relevant pieces of legislation, and of the constitutional basis for the legislation. In bringing applications in relation to discrimination, it is important to plead the facts which will enliven the jurisdiction of the relevant body. In conducting a legal practice, it is important to remember that a large body of anti discrimination law is of general application, and applies equally to advantaged and disadvantaged groups.

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-6Age Federal jurisdiction Age Discrimination Act 2004 (Cth). Provides that direct and indirect discrimination on the ground of age is unlawful, and gives powers to the Human Rights and Equal Opportunity Commission (HREOC) and the Federal Court to hear and determine complaints of discrimination on the ground of age. Direct discrimination is treatment of a person less favourably than another person of a different age, in circumstances which are not materially different. Indirect discrimination is the imposition of a condition which is not reasonable in the circumstances and which is (or is likely to) disadvantage persons of a particular age. If an act is done for more than one reason, then it is sufficient if age is the dominant reason for doing the act. As yet, there are no statistics available on complaints to HREOC in relation to age discrimination, and no judicial consideration of the Act. Age discrimination in the area of employment is unlawful in: •

Determining who should be interviewed for a job;

•

Determining who should be offered employment;

•

Determining the terms and conditions of an offer of employment;

•

The actual terms and conditions under which work is performed;

•

Granting or denying access to opportunities for promotion, transfer, training or other benefits;

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Dismissing an employee;

•

Subjecting an employee to any other detriment.

There is an ‘inherent requirements’ exemption for decisions made in relation to determinations of who is interviewed for or offered a job, or in dismissing an employee. The inherent requirements defence is not available in other circumstances.

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-7Age discrimination is also unlawful in relation to: •

Commission agents;

•

Contract workers;

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Partnerships of six or more partners;

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Qualifying bodies;

•

Trade unions;

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Employment agencies;

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Education;

•

Access to premises which are generally open to the public;

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Provision of goods, services and facilities;

•

Provision of accommodation.

There are a number of general exemptions contained in the Act, including: •

Acts done to positively discriminate in favour of persons of a particular age, to provide a bona fide benefit, or to meet a need arising out of the age of the person, or to reduce a disadvantage experienced by persons of a particular age;

•

Acts done by charitable and religious bodies in accordance with their general aims;

•

Admission of members or the provision of services by voluntary bodies;

•

The provision of superannuation, insurance or credit products, provided that the discrimination is based on actuarial or statistical data;

•

Exempted health programmes;

•

The administration of Australia’s citizenship and migration laws.

The Commission may grant further specific exemptions to the operation of the Act. Exemptions are granted by way of application and hearing.

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-8The Act creates certain specific offences: •

Publication of an advertisement which contains an indication of an intention to commit an act which would be unlawful under the Act – 10 penalty units;

•

Intentionally engaging in victimisation of a person, or threatening to do so, on the basis that the person has, will or may exercise a right to complain to HREOC, which results in actual detriment to the person – 6 months’ imprisonment;

•

Failing to provide the Commission with the source of actuarial or statistical data which is the basis of an act of discrimination – 10 penalty units.

State jurisdiction Anti Discrimination Act 1977 (NSW) Provides that direct and indirect discrimination on the basis of age is unlawful. Discrimination is on the grounds of age if it is because of the person’s age, or on the basis of a characteristic that appertains generally to persons of that age, or on the basis of a characteristic generally imputed to persons of that age group. Principals and employers are vicariously liable for the acts of their agents and employees. Liability may be joint and several for acts done by employees and agents. The Act provides that discrimination is unlawful: •

In employment, in essentially the same terms as the Federal Act;

•

In relation to commission agents and contract workers;

•

If it is an act done by a partnership of six or more partners;

•

By industrial organisations, in refusing or failing to accept an application for members, or in the terms upon which an application for membership is accepted;

•

In decisions made by professional or trade qualifying bodies, save that such bodies may set a minimum age for qualification in a profession or trade;

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By employment agencies;

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In the provision of education;

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In the provision of goods and services;

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In providing accommodation;

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By registered clubs, save that this does not apply to clubs which are established for the provision of benefits to persons of a particular age, and does not prevent clubs from maintaining different categories of membership for members of different ages;

•

Victimising a person because they have or might participate in proceedings concerning a complaint of age discrimination made under the Act;

•

Publication of an advertisement which indicates an intention to commit an act which is unlawful age discrimination for the purposes of the Act – penalty is 50 penalty units in the case of a body corporate or 10 penalty units in other cases.

The Act provides for certain exceptions: •

It preserves the capacity of employers to offer employment on junior terms to people up to 21 years old;

•

Where age is a genuine occupational qualification for a job;

•

Where an act is done to meet the special needs of a particular age group, or to promote equal or improved access to facilities, services and opportunities by a particular age group;

•

In the provision of superannuation schemes, credit or insurance, if the discrimination is in compliance with a Commonwealth regulation, or based on actuarial or statistical data;

•

In the provision of licenses to drive, or the terms of the provision of driving licenses;

•

In excluding any person from playing sport, save that no-one can be excluded from sports coaching or administration on the grounds of age.

Sexual preference State jurisdiction Anti Discrimination Act 1977 (NSW). Provides that it is unlawful to treat a person less favourably than another person in materially similar circumstances, on the ground of the person’s homosexuality, presumed or inferred Turner Freeman

- 10 homosexuality, or the homosexuality of the person’s relative or associate. Such discrimination may be direct or indirect. Discrimination may be on the ground of the person’s homosexuality, or on the grounds of a characteristic which appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons. The Act provides that discrimination on the ground of homosexuality is unlawful: •

In employment, in relation to determining who will be interviewed, who will be offered employment, the terms of an offer of employment, the actual terms and conditions under which work is performed, provision of access to training, promotion, transfer or other benefits, or dismissal;

•

In the engagement of commission agents or contract workers;

•

In acts done by partnerships of six or more partners;

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In acts done by local government councillors in carrying out their official functions;

•

In acts done by industrial organisations to determine whether to accept an application for membership, or limiting the access which any member has to the benefits of membership;

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In the decisions made by professional or trade qualifying bodies;

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In acts done by employment agencies;

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In education, save for where the education is provided by a private educational authority;

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In the provision of goods and services;

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In the provision of accommodation;

•

By registered clubs in determining who is to be a member of the club, or the terms of any such membership;

•

To commit any act of homosexual vilification or serious homosexual vilification – penalty for individuals is 100 penalty units and/or 6 months imprisonment; for a corporation, 100 penalty units.

The Act provides certain exceptions to its own provisions: •

Where the proposed employment is in a private household;

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- 11 •

In employment, where the employer has less than five employees;

•

In employment, if the employer is a private educational authority.

Federal jurisdiction Human Rights and Equal Opportunity Commission Act 1986 (Cth) The HREOC Act attempts to bring into Australian law the provisions of the Convention Concerning Discrimination In Respect of Employment and Occupation. It provides that a person who has experienced discrimination is entitled to complain of such discrimination to HREOC. Discrimination is defined in the regulations as a distinction, exclusion or preference in respect of (inter alia) sexual preference. A complaint must be investigated by HREOC, which is to convene a conciliation conference to attempt to settle the issues arising from the complaint. If the issues cannot be resolved by conciliation, then HREOC may compile a report for presentation in Parliament. Complaints may not be carried on to determination in the Federal Court. The Act relates only to activities carried out in the course of employment, although this is not limited to those in conventional employment relationships and may extend to those engaged as contract workers, labour hire workers, commission agents or partners.

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HARASSMENT AND BULLYING Sexual harassment in employment is one of the most common grounds for complaint under the Sex Discrimination Act 1984, if not the most common. In 2002 the Human Rights and Equal Opportunity Commission (HREOC) provided the following data on the nature of the complaints it received: •

86 per cent of complaints involved a man sexually harassing a woman;

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95 per cent of the complainants were female;

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71 per cent of complaints involved verbal harassment, 37 per cent involved physical intimacy and 23 per cent involved sexual physical behaviour;

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72 per cent of complainants reported that the harassment began in the first 12 months of the complainant’s employment;

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60 per cent of individual respondents were in a more senior position in the workplace than the complainant;

•

At the time the complaint was made to HREOC, only seven per cent of complainants were known still to be actively working for the organisation where the alleged harassment occurred. 67 per cent had left the organisation and 10 per cent were on leave. 1

On the basis of the above data, complainants in 2002 were overwhelmingly women who had been harassed by a male in a senior position during the first twelve months of employment. Sexual harassment is prohibited by the Sex Discrimination Act 19842 as well as the New South Wales Anti Discrimination Act 19773. It is defined as follows: “…A person sexually harasses another person (the person harassed) if: the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.” 1

Human Rights and Equal Opportunity Commission, “Sexual Harassment: A Bad Business, Review of Sexual Harassment Complaints in Employment 2002” available at www.hreoc.gov.au/sex_discrimination/bad_business/ 2 Section 28A 3 Section 22A Turner Freeman

- 13 The legal test for sexual harassment has three essential elements: •

the behaviour must be unwelcome;

•

it must be of a sexual nature; and

•

it must be reasonable in the circumstances to conclude that the person who claims to have been harassed felt offended, humiliated or intimidated.

Sexual harassment is prohibited in employment as well as in employment agencies, educational institutions, in the provision of goods and services, in the provision of accommodation, by members of qualifying bodies (authorities which regulate the practice of a profession), in dealing with land, in relation to sport and in the administration of State laws and programs.4 Some examples of sexual harassment that have featured in cases over the years are: •

Uninivited touching, pinching, stroking or massaging;

•

Uninvited kissing;

•

Comments or questioning about a person’s private or sex life;

•

Sexually suggestive or lewd emails, telephone calls, text messages, screen savers, posters, photographs, calendars, cartoons, videos, toys, graffiti or published material;

•

Comments about a person’s body or attire;

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Playing or interfering with clothing;

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Declarations of love or marriage proposals;

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Requests for dates or sex;

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Gender based taunts or insults;

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Stalking;

•

Physical or sexual intimacy, sexual assault and rape.

BULLYING

4

Sex Discrimination Act 1984, sections 28B-28L and Anti Discrimination Act 1977, sections 22B-22J Turner Freeman

- 14 A number of recent studies indicate that workplace bullying is widespread, including within the New South Wales legal profession. Statistically, bullying is more prevalent than harassment, using the definition of harassment under the Anti Discrimination Act. Data collected by the Law Society of NSW indicates that more often than not up to half of any particular work force are likely to claim that they have been bullied in relation to their work or workplace, whereas only about one in five will claim that they have been harassed. Some important statistics: •

The ILO's 1998 report "Violence on the Job" indicates that workplace bullying is one of the fastest growing complaints of workplace violence.

•

In March 2001 the ACTU reported on its website that, out of 3,000 responses analysed in its current bullying prevention campaign, 54% reported intimidating behaviour, 10% reported physically threatening behaviour, 5% reported being assaulted at work, and 84% reported that the bullying was done by their employer, manager or supervisor, 44% said that they were afraid to speak up about the practices.

•

A 2002 survey carried out by TMP Worldwide found that 18% of employees said that their boss or co-workers bullied them. This survey of 5,000 employees indicated that the legal profession was the worst offender. 33% of employees in the legal sector stated that they were experiencing bullying tactics from their employer.

•

The NSW Law Society's 2002 Remuneration and Work Conditions Survey, to which there were 1,241 Respondents, also indicated that bullying behaviour by bosses and co-workers was a serious problem in the New South Wales legal profession. In particular, one in five Respondents reported that they had experienced bullying. Less than half that number reported either harassment or discrimination. Women were more likely than men to report experiencing bullying, discrimination and harassment.

Despite this, there is no statutory definition of bullying either at the New South Wales or Commonwealth level. Bullying is not specified as prohibited conduct in the workplace under the discrimination laws. Nor is it an independent cause of action. In the workplace context bullying may be viewed as a form of workplace harassment. Where the behaviour involves sexual conduct or undertones, it may amount to sexual harassment and may be unlawful under the relevant Anti-Discrimination Legislation. Turner Freeman

- 15 Below are some examples of cases where bullying behaviour has been deemed to be actionable as a form of sexual harassment.

Malinov -v- South Pacific Tyres [1997] HREOCA 53 In this case the Complainant alleged that a co-worker regularly approached him from behind, pushed his finger into his backside and walked away. He had told the co-worker on a number of occasions that this behaviour was not welcome. On other occasions the employee had walked past the Complainant making sucking or kissing noises and had called him a "poofter". On one occasion a telephone constructed out of scrap rubber had been left in his work area and the following inscription was contained on it "Val's anal sex line" along with the telephone number A complaint was made to the employer and the complainant sought medical treatment and took a period of sick leave. The Complainant also alleged that following the complaint his overtime was stopped. The Human Rights and Equal Opportunities Commission found that the Complainant had been sexually harassed and it also found the employer to be vicariously liable on the ground that it did not adequately communicate its sexual harassment policy and complaints procedures to all staff. Total compensation of $7,500 was awarded for injuries to the Complainant's feelings, humiliation and damages to his sense of self-esteem. W -v- Abrod Pty Limited t/as Schoonens' Computer Services and Simon Schoonens [1996] HREOCA 11 (27 May 1996) The conduct complained of included the following allegations about the employer, Mr Schoonens: •

Yelling at her and other staff, swearing at them in their presence and making derogatory comments;

•

Making suggestions to her that he would like to attend business trips interstate with her, that he wanted her to stand beside him in lectures and assist him in talking to clients as his client would remember the beautiful woman beside him;

•

Frequently referring to his wife was whilst in the presence of other staff as a f***ing bitch or f***ing woman;

•

Regularly slapping things down on his desk, throwing pens across the top of the desk and pushing papers from the desk on to the floor;

•

Showing a lingerie catalogue to another employee in the Complainant's presence; Turner Freeman

- 16 •

Making comments to the Complainant about her body and legs;

•

Touching the Complainant on the backside on a number of occasions and approaching her from behind, kissing on the back of the neck;

•

Describing his sex life with his wife in detail to the Complainant;

•

Punching the Complainant on the thigh with a closed fist while he was talking to a client on the telephone;

•

Telling the Complainant that if she made a mistaken again she would be sacked;

•

Contacting the Complainant's mother while she was on holiday and abusing her over the telephone for a number of hours.

In this case the Commission had no difficulty in finding that the conduct complained of in part constituted sexual harassment and the Complainant was awarded $22,599 in damages comprising general damages, lost income, future treatment and loss of earning capacity. Commissioner Atkinson made the following comment: "In my view, this is the worst example of workplace bullying by Mr Schoonens of Ms W and is consistent with the other examples of sexual harassment by Mr Schoonens which due to the unwelcome nature and the differential in age and power between the Complainant and the Respondent are also consistent with sexual harassment being a form of workplace bullying as well as sex discrimination." Hudson -v- Strathfield Golf Club [2000] NSW ADT 88 In this case the Complainant, who was of Greek decent, commenced proceedings under the NSW Anti-Discrimination Act on grounds of race. This case involved a number of allegations of bullying, such as speaking to the Complainant in a raised voice, pointing fingers in his face, constant questioning about his performance, calling him stupid in front of other workers, pushing him to the ground in a physical altercation and deliberately driving into objects while the Complainant was in the car so as to cause him discomfort. Other allegations included calling the Complainant racist names and regularly referring to the Complainant as a f***ing wog. The Complainant raised these matters with his Supervisors but the matter was not resolved to his satisfaction. He then was diagnosed as suffering from nervous stress and was away from work for an extended period time. Turner Freeman

- 17 The NSW ADT found that the bullying amounted to direct discrimination on the grounds of race. The Complainant was awarded $3,000 for non-economic loss and $9,020 for past economic loss. There was no award for future economic loss.

Further liability: Occupation Health and Safety, Common Law and Workers Compensation Under the Workers Compensation Act 1987 employers are liable for workplace injuries. Employees who suffer an injury, including a psychological injury, as a result of workplace bullying, may be entitled to receive payments of workers compensation for the extent of any incapacity. Common law remedies are also available, based on the employer's duty to implement and maintain a safe system of work for both employees and others. A common law or assault action may also be available in some circumstances. Any case run on common law principles would be reliant on proof of damage. Under the Occupational Health and Safety Act 2000 (NSW) employers have an obligation to provide a safe workplace, which includes providing a workplace that is free from bullying. Employers who do not take steps to prevent bullying in the workplace could be said to be failing to provide a safe workplace and therefore breaching the legislation. Inspector Gregory Maddaford -v- Graham Gerard Coleman and Anor (2004) NSWIRComm 317 This decision of the Full Bench of NSW Industrial Relations Commission was an appeal from an earlier decision of the Chief Industrial Magistrate. The appeal points essentially went to sentencing. The facts of the case were as follows: •

The company conducted business out of factory in Lidcombe. Mr Doyle was employed by the company to work in the factory as a labourer. Mr Doyle was 16 years old at the time of the incident.

•

On 21 December 2001 Mr Doyle was working at the factory. Also present were Mr Ciacchi (storeman), Mr Calistro (contractor), Mr Fraser (contractor engaged as site foreman), Mr Last, Mr Pomente, Mr Ashby, Mr Prastalo, Mr Gobbo and Mr Manolis.

•

At about 10:00am or 11:00a.m Mr Doyle was called to attend the top level of the factory, purportedly to assist in moving cabinets. When he arrived he was grabbed by Messrs Pomente, Manolis, Prastalo, Gobbo and Ashby who wrapped him from Turner Freeman

- 18 his neck to his feet in plastic wrap using a manual plastic wrapping machine. He was placed on his back on a mobile work trolley and secured to the trolley with more plastic wrap. Mr Doyle asked to be freed. Mr Gobbo placed a Stanley knife at the end of a table near Mr Doyle and said words to the effect of "If you can reach it you can cut yourself free". The trolley was pushed from side to side and spun around. •

Mr Pomente then shoved a handful of sawdust in to Mr Doyle's mouth. Mr Doyle, an asthmatic, coughed and chocked and was unable to breathe. Either Mr Gobbo or Mr Ashby used a fire hose to wash the sawdust and glue out of Mr Doyle's mouth. As one of the group of men squirted glue into Mr Doyle's mouth, another squirted a fire hose into his mouth. Mr Doyle spat the mixture out of his mouth as more was pumped in.

•

The entire incident lasted approximately half an hour. Mr Fraser cut Mr Doyle free from the plastic wrap and the trolley. Mr Pomente told Mr Fraser not to do so.

•

Mr Doyle was then given his Ventolin inhaler by his mother, Carmen Doyle, who was also an employee of the company.

Brian Coleman, Director, was on the premises at the time of the incident but claimed that he did not know of or witness the incident. The incident was eventually reported and was investigated by the WorkCover Authority of NSW. A prosecution was initiated in the Chief Industrial Magistrate's Court and the company entered a guilty plea, was convicted and fined an amount of $24,000. Two the company's Directors were also prosecuted and eventually entered guilty pleas. Prosecutions were also successful against Messrs Pomente, Prastalo, Ashby, Manolis, Gobbo and Last. The employees were variously fined, placed on good behaviour bonds and order to pay costs. In his decision at first instance Chief Industrial Magistrate Miller stated: "A purpose of the Occupational Health and Safety Act is to eliminate risks to health and safety at the workplace. What occurred on this day is often described as an initiation. It is a polite term for bullying. A bullying culture has been known to exist in some work places, often seen as a bit of fun at the expense of someone else. It is a culture that needs to be stamped out. Bullying has no place in the workplace."

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- 19 On appeal the Full Bench of the NSW Industrial Relations Commission increased the fines on the two Directors from $1,000 each to $9,000 for Mr Brian Coleman and $12,000 for Mr Graham Coleman. Occupation Health and Safety prosecutions may be initiated by the WorkCover Authority of NSW or by a properly registered Trade Union. The decisions of the various courts and tribunals in relation to sexual harassment and bullying make it clear that, as a minimum, employers must take the following steps to avoid liability for harassment and bullying in the workplace: •

Implement a written policy outlining the law and the obligations it creates;

•

Communicate the policy to employees verbally;

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Provide the written policy to employees on the commencement of their employment;

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Provide regular training and updates to employees with respect to the policy;

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Implement and circulate a grievance or complaints procedure which employees can access and easily follow;

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Ensure all levels of management understand their obligations in the event of a complaint.

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OCCUPATIONAL HEALTH & SAFETY ACT, 2000 AN OVERVIEW LEGISLATIVE BACKGROUND On 1 September 2001, the final stage of the New South Wales Government’s new occupational health and safety legislation came into effect. The new package of legislation is contained within the Occupational Health & Safety Act, 2000 and the accompanying Occupational Health & Safety Regulation 2001 and requires employers to become proactive in eliminating risks at the workplace, rather than reactive to incidents. To ensure compliance with the new scheme, the Act provides substantial penalties for persons or corporations who are found to contravene the provisions of the Act. An example is found at section 12 of the Act, which provides the maximum penalties for persons or corporations who are found guilty of an offence: •

in the case of a corporation (being a previous offender) 7,500 penalty units being $825,000 (a penalty unit is currently $110); or

•

in the case of a corporation (not a previous offender) 5,000 penalty units being $550,000; or

•

in the case of an individual (a previous offender) 750 penalty units being $82,500 or imprisonment for two years or both; or

•

in the case of an individual (not a previous offender) 500 penalty units being $55,000.

EMPLOYER DUTIES The primary obligation of an employer under the new scheme is contained in sub-section 8(1) of the Act, which states: “An employer must ensure the health, safety and welfare at work of all the employees of the employer.” The duty is further expanded in sub-section 8(2) to include those people at the employer’s workplace (other than employees) are not exposed to risks to their health and safety arising from the conduct of the employer’s undertaking.

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- 21 This obligation is real and requires employers to be pro-active in their duty to protect employees and other persons at the workplace. Chapter 2 of the Regulations expands on the primary duty in Section 8 and requires employers to: •

Identify any foreseeable hazard that may arise in the course of the employer’s undertaking and that has the potential to harm the health and safety of any employee or any other person legally at the employer’s place of work. (Regulation 9);

•

Assess the risks of harm to employees and other persons legally at the workplace; (Regulation 10); and

•

To eliminate any foreseeable risk (Regulation 11).

Employers must also take into account matters such as shift work arrangements and the potential for workplace violence (Regulation 9), amongst other things.

DUTIES ON OTHERS The Act places duties upon persons other than employers as follows: •

Self-employed persons have a duty to ensure that others are not exposed to risks arising from the conduct of the self employing person’s undertaking (section 9);

•

Controllers of premises, where work is performed, have a duty to ensure that the premises are safe and without risks to health (section 10);

•

Controllers of plant and substances used by others for work have a duty to ensure that the plant or substance is safe and without risk to health when used (section 10);

•

Persons who design, manufacture or supply any plant or substance used to perform work have a duty identical to that provided to controllers of plant and substances, as well as providing or arranging for the provision of adequate information to those whom it is supplied, to ensure its safe use (section 11); and

•

Employees have a duty to take reasonable care for the health and safety of others at work or who may be affected by them, as well as cooperating with their employers in their efforts to enable compliance with the Act (section 20).

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- 22 LIABILITY OF DIRECTORS & MANAGERS Section 26 of the Act impugns liability upon persons concerned in management of a corporation that has contravened any provision of the Act or the Regulations. Thus far, WorkCover has brought prosecutions against directors, as well as licensed electricians who have apprentices under their direction. The defences provided in section 26 also give an indication that this section is intended to cover those persons who have an ability to influence the conduct of the corporation in relation to the contravention.

CONSULTATION WITH EMPLOYEES The legislation compels employers to consult with their employees “to enable the employees to contribute to the making of decisions affecting their health, safety and welfare at work” (section 13). This consultation is to be meaningful (section 14) and is required of all employers in New South Wales irrespective of how many employees they employ. Section 15, requires the consultation to take place when: 1.

Risks to health and safety from work are assessed or when they are to be reviewed;

2.

Decisions are made about measures to eliminate and control risks;

3.

Introducing or altering procedures for monitoring risks;

4.

Decisions are made about the adequacy of facilities;

5.

Changes to the systems or methods of work are proposed; and

6.

Decisions are made about procedures for consultation.

Specific provisions provide how this consultation is to occur: •

If there are 20 or more employees and the majority of employees request the establishment of an OH&S committee, an employer is required to set up and recognise this committee as the means by which consultation occurs (Section 17 (1));

•

In any workplace employees can insist upon the appointment of an OH&S representative so long as one member requests the election of such a representative (Section 17 (2)); and

•

A union must be consulted so long as any employee so requests (Section 17 (3)).

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- 23 RIGHTS OF OH&S COMMITTEES AND REPRESENTATIVES The rights of OH&S committee members and representatives include the following: •

To be consulted on any change at the workplace, such as the introduction of new equipment, substances and hours of work (section 15);

•

To be provided with sufficient access to employees they represent during working hours (Regulation 27 (1) (c));

•

To be provided with necessary facilities (Regulation 27 (1) (d));

•

To be paid for all time spent in the performance of the role (Regulation 27 (1) (f));

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To be reimbursed for any expenses reasonably incurred in connection with their participation or training (Regulation27 (1) (g));

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To be an observer at any formal report by a WorkCover inspector of the employer (Regulation 30 (1) (b));

•

To request an investigation by an inspector if a safety issue cannot be resolved with the employer (Section 18 (c));

•

To accompany an employee during any interview by the employer on any OH&S issue (Regulation 30 (1) (c));

•

To be an observer during any formal in-house investigation (Regulation 30 (1) (d));

•

To be provided with training from an accredited training provider (Regulation 31).

PROTECTION OF EMPLOYEES UNDER THE ACT An employer is not allowed to dismiss or injure an employee in the course of their employment if they: (a)

Make a complaint about a workplace matter that the employee considers is not safe or is a risk to health.

(b)

If the OH&S committee member / representatives are exercising any of the functions as a member or representative.

If the employer dismisses or injures an employee in the course of their employment as a result of the above, section 23 of the Act provides for substantial penalties which apply in these situations. Turner Freeman

- 24 TRAINING Regulation 13 requires employers to provide all employees with OH&S training which covers: •

arrangements for the management of OH&S, including the manner of reporting hazards;

•

procedures relevant to the place of work, including the use and maintenance of risk control measures; and

•

how employees can access information on OH&S.

In addition, employers must ensure that every OH&S committee member and representative undertakes a training course provided by an accredited trainer (Regulation 31).

POWERS OF INSPECTORS Inspectors appointed by the WorkCover Authority have the power to enter the employer’s premises without notice and to make searches, inspections, examinations and tests, take photographs and make videos. It is an offence for any person to: •

Obstruct an inspector;

•

Prevent any person from assisting an inspector;

•

Intimidate or attempt to intimidate an inspector;

•

Fail to answer an inspector’s questions without reasonable cause;

•

Give false or misleading information to an inspector.

Inspectors are required under Section 69 to consult the OH & S Committee, Representative or a union official and take a person nominated by any of these bodies on the inspection.

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- 25 POWERS OF UNION OFFICIALS Authorised union officials may enter the workplace to carry out investigations in respect of suspected breaches of occupational health and safety legislation and can enter the employer’s premises without notice (Sections 77 & 78). A union official who visits the employer’s premises may under the power provided under Section 81 of the Act: •

carry out inspections and take photographs;

•

require the employer to provide such assistance as is reasonably necessary to enable him to carry out his functions;

•

require the employer to produce records that directly relate to health and safety of employees in the workplace; and

•

obtain copies of any employer’s records relating to health and safety of employees.

A person must not obstruct or intimidate an authorised union official who is carrying out any investigation into breaches of occupational health and safety legislation (Section 84).

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