Employers cannot afford to be complacent when it comes to employee health and safety. Ignoring employee health is costly.
Creating a healthy company culture is no longer an aspiration for employers, it is essential.
A healthy company culture of course brings with it many benefits such as higher employee engagement; positive attitude toward the employer; increased productivity and performance; reduction in workplace conflict; reduction of absenteeism and ‘presenteeism’; low staff turnover; and higher profitability.
Reaping these benefits is enough to encourage many employers to build a healthy company culture. It’s also worth considering the compelling legal implications connected to health and safety in the workplace.
The objects of the Work Health and Safety (WHS) legislation include the aim of ensuring that workers and others are provided with the highest level of protection that is reasonably practicable. Employers have obligations under the WHS to do all things reasonably practicable to ensure the physical and mental health and safety of their workers. The organisation's officers have high level independant duties to take all reasonable steps to ensure the organisation complies with its’ WHS duties. Criminal sanctions can be imposed for breaches of the duties. Fines for breaches of WHS laws can be up to $3,000,000 for organisations, $600,000 and/or 5 years imprisonment for officers and $300,000 and/or 5 years imprisonment for other individuals.
There is significant interaction between the WHS laws and avenues of legal redress for employees such as access to statutory workers compensation, Fair Work Commission anti-bullying orders and litigious damages claims to name a few. Claims of psychological injury and physical illness caused by workplace stress or workplace bullying and the management of sick and injured employees are all too common workplace issues employers have had to deal with in recent years. The Courts have also heard numerous cases and awarded significant damages to employees for claims brought. Sedentary jobs, long hours, intense work pressure or work load often feature as causes of health issues in employee claims.
So what does reasonable practicable mean in the context of the basic WHS duty?
According to the New South Wales regulator, SafeWork NSW, reasonably practicable means doing what is reasonably able to be done to ensure the health and safety of workers and others. This is an objective test which means a duty-holder must meet the standard of behaviour expected of a reasonable person in the duty-holder’s position and who is required to comply with the same duty. A duty-holder must first consider what can be done - that is, what is possible in the circumstances for ensuring health and safety. They must then consider whether it is reasonable, in the circumstances to do all that is possible.
The expectation is that duty-holders should always try to eliminate, so far as is reasonably practicable, any health and safety risks in the workplace. What can be done should be done unless it is reasonable in the circumstances for the duty-holder to do something less.
If a risk cannot be removed, organisations must minimise it by doing one or more of these things:
substituting (wholly or partly) the hazard with something with a lesser risk
isolating the hazard from any person exposed to it
implementing engineering controls (if the risk remains the organisation must implement administrative controls)
use personal protective equipment.
If these controls do not fully eliminate or minimise the risk, the organisation must implement administrative controls (and then, if appropriate, ensure the provision of suitable personal protective equipment). A combination of controls may be used to minimise a risk if a single control is not sufficient.
In determining control measures, the organisation should identify and consider everything that may be relevant to the hazards and risks and the means of eliminating or minimising the risks.
When determining what is reasonably practicable, the organisation must always take into account and weigh up:
the likelihood of the hazard or risk occurring
the degree of harm from the hazard or risk
knowledge about ways of eliminating or minimising the hazard or risk
the availability and suitability of ways to eliminate or minimise the risk
To identify what is or was reasonably practicable all of the relevant matters must be taken into account and weighed up and a balance achieved that will provide the highest level of protection that is both possible and reasonable in the circumstances. Some matters may be relevant to what can be done, while others may be relevant to what is reasonable to do. No single matter determines what is (or was at a particular time) reasonably practicable to be done for ensuring health and safety. Clearly the duties on employers require a pro-active approach to prevent risks to health and safety.
It doesn’t take much to join the dots. Wellness is an extension of health and safety. Employers need to consider multi-dimensional ways to improve employee health. Not only are the social and economic imperatives for workplace wellness compelling, legal benefits are also attached. Employers who adopt a holistic approach to optimising employee well-being through corporate well-being programs and benefits will be well placed to demonstrate the implementation of measures to eliminate or minimise many risks to the mental and physical health of employees in the workplace. As employees become more litigious, these employers are also likely to be better placed to defend other employee claims.