Workplace Safety and Bullying Flashcards
Work Health and Safety Act 2011 (Cwth)
- The WHS Act is simply “model legislation”
- Imposes general duty of care
- Standard: Reasonably practicable
- PCBU: Person conducting business or undertaking
- Worker: Employee, contractor, apprentice, trainee, etc
- Occupation Safety and Health Act 1984 (WA)
- Regulates health and safety in WA
- Established a Commission for OSH
- Established a tribunal for claims
- Duty: Provide and maintain an environment where employees are not exposed to hazards
- Standard: so far as is practicable
Duty of Care at Common Law
- Employer must take “REASONABLE CARE” to avoid exposing its employees to unnecessary risks to injury
- Imposed through a term implied by law into the employment contract
- Arises through the law of tort
- Employers duty of care is non-delegable
s789FD
- Defines and establishes criteria for workplace bullying
* Works in a constitutional covered business * Another individual or group * Repeated conduct * Behave unreasonably towards the worker * The behavior creates a risk to health and safety
Bullying Behaviour Case
Male labour hire employee succeeded in obtaining damages after bullying over 5 years.
Conduct included:
physical and sexual assault
threats
grossly improper conduct (racism and sexism)
unreasonable hours
underpaid
required to ask permission to go to the toilet
refused carers leave.
Court found that conduct was “so brutal” that demeaning and unrelenting that it was reasonably foreseeable that it would cause psychiatric injury.
Unsuccessful bullying case
Applicant did not succeed in showing that he had been bullied after returning from an injury and being told to do some “demeaning tasks” (collecting stones, collecting manure, mowing). Employee failed to prove these tasks had been allocated to him.
s789FD(2)
Not bullying if it is “reasonable management action” that is carried out in a reasonable manner
Elements of reasonable management action plan
- Behavior must be management action
- Must be reasonable for the action to be taken
- Carried out in a manner that is reasonable
RMAP - Correct
Public servant claimed psych injuries because of issues relating to performance appraisals, failure to be promoted, and being humiliated in front of others. Rejected because action was a result of reasonable action undertaken in a reasonable manner.
RMAP - Incorrect
Teacher employed by a Commonwealth body. She had been engaged in a performance management process which had been very badly handled. She was able to show that she had been denied procedural fairness (no opportunity to respond). It was also found that the employer failed to adequately document anything, including documenting the inadequate performance.
Applying for Stop Bullying
- Applications must be made to the FWC
- Order is not for compensation, just to stop the bullying
- No timeframe for lodging application
- Application is a workplace right protected by general protections provisions
- FWC obliged to deal with the application within 14 days
- FWC can make order that anti-bullying hearings are held in private, restrict access or publication
- Appeal can be made to Full Bench of FWC within 21 days
- Needs permission of FWC to appeal
FWC powers for stop bullying investigations
- Flexibility to “inform” itself on whatever it feels is appropriate
* Contacting employer * Contacting relevant parties * Conducting a conference; and/or * Conducting a conference or formal hearing
- Are able to dismiss application if:
- Not made in accordance with FWC
- Frivolous/Vexatious
- No reasonable prospect of success
- Are able to dismiss application if:
FWC Orders
- Stop the specified behavior
- Monitor the employers behavior
- Provide information and support
Costs
- Parties pay their own costs
* FWC has discretion to make a cost order
Duty of Care - Elements
- Whether a reasonable person in the employers position would have foreseen the risk of injury
- What would a reasonable person do by way of response to the risk
- Was the injury caused by that breach; and
- Was the injury suffered too remote
