Recent times have seen the introduction of a plethora of legislation regulating workplace behaviours. The stated aim is to ensure psychological safety at work and to create a more harmonious and productive workplace. The other aim is to ensure compliance with legislative provisions – some of which may result in the imposition of civil penalties.
The legal obligations imposed on employers have, in the most part, required them to be proactive in the workplace and engage in risk management assessments before taking action to manage workplace behaviours. Inadequate or non-compliance with legislation exposes employers to a range of consequences, including civil penalties. Sometimes the consequences extend to individual directors or senior leaders within a business, in which case they may be held personally liable.
Are You Covered?
You may think that you have nothing to fear. You may have taken out Employment Practices Liability and/or Management Liability /and or Statutory Liability insurance policies which will cover you if you and/or your organisation were to find yourselves facing legal consequences; compensation/damages; penalties and legal costs. You may also have compulsory statutory workers compensation insurance. Surely this is adequate protection for you and your business… OR IS IT?
- Have you checked the small print carving out your excess and the terms and conditions imposed, or the numerous exclusions that apply to each of your policies?
- Are you aware of section 272A of the Work Health and Safety Act 2020 (WA) (WHS Act) which renders any insurance policy or other indemnity against the payment of fines to be of no effect?
Workplace Behaviour – Criminal Legislation
A toxic workplace or a toxic workplace culture is repellent to current societal values and expectations. It is now also unlawful and the consequences for employers are severe and far-reaching. A few examples paint the picture:
- WHS Act at section 19 (1) imposes the primary duty of care on a PCBU to ensure, insofar as is reasonably practicable, the health (including physical and psychological) and safety of its workers while they are at work.
- WHS Act at section 19 (2) imposes the primary duty of care on a PCBU to ensure, insofar as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business.
- Work Health and Safety General Regulations 2022 (WA) – Division 11 dealing with Psychosocial Risks at Regulation 55C provides that a PCBU must manage psychosocial risks as there set out, including at Regulation 55 D.
- Work Health and Safety (Mines) Regulations 2022 (WA) – Division 11 dealing with Psychosocial Risks at Regulation 55C provides that a PCBU must manage psychosocial risks as there set out, including at Regulation 55 D; and
– At part 3.2 dealing with General Workplace Management at Regulation 39 (2) provides that a PCBU must ensure that information, training and instructions provided to a worker is suitable and adequate. –
– Regulation 40 provides that a PCBU must ensure, insofar as is reasonably practicable, general workplace facilities. - Sex Discrimination Act 1984 (Cth) at Part II; Division 3 dealing with sexual harassment at section 28B (3) provides that it is unlawful for a PCBU to sexually harass a worker or a prospective employee or harass that person on the ground of their sex; and
– At section 28M (1), provides that it is unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex.
– At part 11A (Duty to Eliminate Unlawful Sex Discrimination etc) at section 47C, provides that a PCBU must take reasonable and proportionate measures to eliminate, as far as possible, conduct including sex discrimination, sexual harassment hostile workplace environments and victimisation. - Fair Work Act 2009 (Cth) at Chapter 2, Part 2-9, Division 5 where it is unlawful to enter into fixed term contracts of employment except in limited circumstances there set out and any such limitations (bar exceptions) will have no effect:
– Division 6 at section 333M, provides that employees have a right to disconnect outside of their working hours unless the refusal is unreasonable.
– Chapter 3, part 3-1 dealing with rights and responsibilities of employees and employers aimed at protecting the workplace rights of employees. Section 340 relevantly provides that a person must not take adverse action against another person because that person has a workplace right; or has/has not exercised that workplace right; or proposes to/not to exercise that workplace right or to prevent the exercise of that workplace right.
The WHS Act creates criminal offences dealt with in our criminal courts and those prosecutions subject the so-called “accused” person to substantial fines (in the millions of dollars). For serious offending – such as industrial manslaughter – this extends to substantial terms of imprisonment. Separate from these penalties, the criminal courts have a discretion to, among other things, make training orders and publication orders.
Workplace Behaviour – Non-Criminal Legislation
As for non-criminal legislation, the Fair Work Commission (or the WA Industrial Relations Commission if you are employed in the public sector or by an individual or a partnership) now have extended powers to deal with applications seeking, among other things:
- Stop Bullying Orders or Stop Sexual Harassment Orders.
- A variety of Orders to resolve the identified dispute(s) which must be complied with by the employer and any named individual.
In applications for breach of workplace rights, the Fair Work Commission has a range of remedies available to it. At any hearing of a matter before the Federal Court or the Federal Circuit Court, an offending party may be ordered to pay substantial compensation based on the losses the claimant is able to prove. Civil penalties subject to the seriousness of the unlawful conduct may also be applicable.
What can Employers Do?
As an employer, you will understand that bullying behaviours create an unsafe work environment given the impact on victims. Sexual harassment and its impact similarly create an unsafe work environment. This conduct is not only contrary to human resources focused legislation, but it also now falls squarely within the scope of the criminal law under the WHS Act and the consequences that flow from the same.
To deal with all aspects related to the regulation of unlawful workplace behaviours would require a treatise which is beyond the scope of this blog. I believe the important take away is that the law currently requires employers to be proactive to ensure that the workplace and those working within it are treating each other according to current societal values and within the confines of the law.
In addition, if put to the test, employers must be able to prove the measures they have put in place to deal with what may only be described as toxic workplace cultures. If an employer has not done enough, they could face a range of legal consequences separate from any fall out at the workplace level.
As a lawyer practising in these areas of the law, I recommend that you become proactive and not wait for problems to arise. I also recommend you get specialist advice to ensure your compliance with current legislation and regulations. This will help you work out a strategic plan to deal with matters before they escalate into insurmountable issues or legal disputes. It will also help protect your team and your business.
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The author, Cav. Maria Saraceni is a prominent Barrister with Francis Burt Chambers. She is passionate about employment, industrial relations and work health and safety matters.
