As a board director, officer, leader, or manager, you carry the weight of significant responsibility. Ensuring a safe, respectful, and legally compliant workplace is no longer just a moral imperative – it’s a legal requirement which carries substantial penalties.
Recent legislative changes, particularly in the Safety Laws and the Respect at Work Act 2022 (Cth), have raised the stakes. It’s critical to be aware that, if you are an officer of an organisation, the penalties for non-compliance cannot be covered by your organisation’s liability insurance. You are personally accountable.
In this blog, I offer a constructive heads-up and urge you to take proactive steps to protect yourself, your people, and your organisation.
The Positive Duty Under the Respect at Work Act 2022
The Respect at Work Act 2022 mandates employers to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:
- Sexual harassment
- Sex-based harassment
- Gender discrimination
- Hostile workplace environments
- Victimisation
Unlike previous legislation, this Act places a positive duty on employers to actively demonstrate they have implemented measures to prevent unlawful behaviours. The Australian Human Rights Commission (AHRC) now has the authority to audit organisations, conduct inquiries, and issue compliance notices. Ignorance or inaction is no longer an option.
The Five Steps of Due Diligence
Under the Work Health and Safety (WHS) legislation, Directors and Officers must take reasonable steps to ensure their organisations are meeting safety obligations. This involves demonstrating ongoing due diligence through the following five steps:
- Acquire and maintain knowledge: Stay up to date with workplace health and safety matters, including new laws, guidelines, and best practices.
- Know your business’s hazards and risks: Understand the specific risks and hazards within your organisation, including psychosocial risks.
- Allocate resources and processes: Ensure your organisation has sufficient resources and processes to eliminate or minimise risks. Actively monitor their utilisation.
- Respond to incidents and hazards: Establish robust processes for receiving, considering, and addressing information regarding incidents, hazards, and risks. Ensure timely responses.
- Implement compliance processes: Verify that your organisation has processes in place to comply with all relevant duties, obligations, and undertakings under safety laws, and ensure that they are followed.
The Stakes have never been Higher
Non-compliance can lead to severe penalties such as:
- Western Australia: Directors and Officers face a $350,000 fine if a worker is exposed to a risk of death, injury, or harm. If serious harm or death occurs, penalties escalate to 5 years’ imprisonment and a $680,000 fine. Industrial Manslaughter carries up to 20 years’ imprisonment and a $5,000,000 fine.
- Victoria: Workplace Manslaughter is punishable by up to 25 years’ imprisonment.
Under the WHS Act, liability is no longer tied solely to organisational breaches. Directors and Officers are individually accountable for demonstrating due diligence regardless of the organisation’s actions. Crucially, indemnification by the organisation is prohibited; your liability cannot be covered by insurance.
Taking Proactive Action
To be honest, I prefer to focus on prevention rather than the penalties. As leaders, we have the power to adopt a proactive and informed approach to stay ahead of the curve. Here are some practical suggestions:
- Familiarise yourself with AHRC’s guidelines and WHS obligations. Engage in regular training to stay informed and don’t leave everything to your HR team. If you would like a summary of the extensive 112-page guidelines, please email clair@equalopportunitytraining.com.au
- Partner with reliable workplace consultants to assess your organisation’s compliance and to implement best practices. EEO Specialists has been delivering workplace behaviour training for 15 years to more than 39,000 people.
- Develop and enforce policies that prioritise a safe and inclusive workplace. Role modelling from leaders plays a vital role in creating a healthy work culture.
- Conduct regular audits of your workplace culture and processes to identify gaps and address them promptly.
- Maintain clear records of actions taken to comply with your legal obligations. This demonstrates your commitment to due diligence.
While the obligations under the Respect at Work Act and WHS legislation may appear daunting, they offer an opportunity to elevate employee wellbeing, morale and productivity. It’s better for people and business.
By taking proactive steps, we are not just mitigating personal liabilities, we also protect our people, enhance our organisations’ reputation, and foster a culture of safety and respect. While the consequences of inaction are severe, the potential rewards of proactive compliance are certainly worth the effort.
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The author, Franca Sala Tenna, is a lawyer and acknowledged workplace behaviour and compliance expert. She is also the Founder & Director of EEO Specialists, and Online Compliance Training.