The Occupational Health and Safety Act 2004 (Vic) (the OHS Act) provides the legislative framework for how employers are expected to protect employees from risks which may impact their health and safety. The OHS Act defines the principles of health and safety protection as the need for employees and members of the public being given the highest level of protection against health and safety risks by eliminating or reducing risks so far as reasonably practicable.
An employer has a duty to ensure that, so far as reasonably practicable, they provide and maintain a safe working environment which does not pose a risk to an employee’s health. An employer also has a duty to monitor the health of employees, monitor workplace conditions, provide information to employees about health and safety issues and complaint mechanisms, keep records of health and safety matters, consult with employees on health and safety matters, and ensure the workplace does not affect the health and safety of others.
Employees also have a duty to take reasonable care of their own health and safety and the health and safety of others affected by their acts or omissions. Employees are required to cooperate and comply with any actions taken by their employer to comply with the Act and Occupational Health and Safety Regulations 2017 (Vic) (the Regulations), and not intentionally or recklessly interfere with or misuse anything which supports workplace health, safety and welfare.
Types of Occupational Health and Safety Risks
The Fair Work Act 2009 (Cth) (the FWA) sets out a variety of workplace rights which are protected under the FW Act. This includes the right to be protected from discrimination, bullying and harassment, violence and sexual harassment, as well any conduct which can adversely impact an employee’s health and safety in the workplace.
Discrimination
The FWA protects an employee from being discriminated against based on their ‘race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin’.
An employee cannot be discriminated against for any of these protected attributes. Discriminatory conduct includes firing or injuring an employee, changing an employee’s job or role, or offering unfair contract terms and conditions, treating and employee differently, or not hiring someone based on a protected attribute. Discrimination can impact an employee’s emotional and psychological wellbeing and can lead to high levels of stress. Discrimination can also have negative impacts on a workplace’s functioning, cohesion and morale.
Bullying
The FWA defines workplace bullying as any repeated and unreasonable behaviour directed towards an employee or group of employees which impacts their health or safety. It can include verbal abuse, hostile behaviour, abusive and offensive correspondence, teasing and joking, purposeful exclusion, unreasonable demands, pressure and deadlines, unfair allocation of tasks, undermining performance, and deliberately withholding necessary work-related information and resources.
Workplace bullying can impact an employee’s capacity to do their job and can lead to absenteeism, isolation, low morale, and low self-esteem. It can also have long-lasting effects on an employee’s mental health, relationships, physical health.
Gendered Violence
Gendered violence is any behaviour which is directed towards an employee because of their sex, gender or sexual orientation which impacts their health or safety. Gendered violence can occur directly or indirectly and can include stalking, intimidation or threats, abuse, exclusion, sexually explicit gestures, offensive language and imagery, being undermined, sexual harassment, and sexually assault or rape.
Gendered violence can cause an employee to feel isolated and withdrawn and can impact their mental health. It can result in physical injury and can impact relationships, physical health, financial well-being and can cause immense stress. Women are at a higher risk of experiencing gendered violence in the workplace, as well employees who identify as LGBTQIA+.
Sexual Harassment
Sexual harassment is any unwelcome sexual advance or request, or any other unwelcome conduct of a sexual nature towards an employee, which results in the employee feeling offended, humiliated or intimidated. While conduct only needs to occur once to be considered sexual harassment, repeated and continuous sexual harassment can also be considered as bullying. Conduct which can be considered sexual harassment includes touching and unnecessary contact including sexually explicit contact, staring, suggestive comments, sexually explicit pictures and correspondence, repeated invitations to go on a date, requests for sex, intrusive questions and insults based on sex and gender.
The FWA prohibits any person from engaging in sexual harassment towards an employee or prospective employee. An employer can be held vicariously viable for an employee or agent engaging in sexual harassment if the conduct occurs in connection with the employee or agent’s duties. Sexual harassment can impact an employee’s mental, physical, emotional, psychological and social wellbeing. It can cause an employee to feel isolated, withdrawn and can impact work productivity, attendance and work, and feelings of safety and security in the workplace. As with gendered violence, women are at higher risk of experiencing sexual harassment.
Stress
Work-related stress is the physical and psychological response of an employee who feels that the demands of their work exceed their abilities and resources. Stress can develop due to work demands, low levels of control, lack of appropriate support, lack of role clarity, as well as environmental issues such as noise, lighting, and temperature. Work-place stress is also impacted by an employee’s own resilience and life experiences.
Work-place stress can cause physical illness, impact mental health and wellbeing and work productivity and can have long-term social, emotional, psychological and physical impacts.
Vicarious Trauma
Vicarious trauma is the indirect exposure to another person’s trauma which impacts an employee as though they had experienced the trauma themselves. Exposure to a violent or traumatic event, reviewing distressing information, investigating a serious incident or supporting others who have experience a traumatic event can lead to vicarious trauma.
An employee experiencing vicarious trauma can display overly strong emotions, become overly involved, feel guilt and shame, feel loss and cynicism, and can develop burnout. Vicarious trauma can impact an employee’s mental health and wellbeing and can cause issues in social, emotional and psychological domains of their life.
Workplace Investigations
Employers have a duty to their employees and members of the public to ensure they provide a safe environment free from risks to a person’s health and safety. Employers have a duty to investigate concerns that arise in relation to health and safety complaints and ensure that employees are safeguarded from foreseeable risk of harm.
Employers have a duty to respond to health and safety risks quickly and effectively. Investigations should be undertaken when an incident occurs to determine what has occurred, what needs to happen to stop further incidents occurring, and to make recommendations and findings in relation to the allegation.
Investigations should be undertaken by experienced and impartial investigators with expert knowledge on occupational health and safety issues. An employer should ensure that an investigator has access to all relevant evidence and that the complainant, respondent and witnesses are aware that an investigation is being undertaken and they may be required to participate in an interview. Following the completion of an investigation, the investigator will provide a report which outlines the allegations, the investigation process, the evidence relied upon, the findings, and any recommendations which an employer should adopt to ensure they are compliant with their legal obligations.
How can Safe Space Legal Help?
The team at Safe Space Legal have extensive experience working with employers to support and strengthen their safeguarding practices. We work with employers across Australia to ensure they are meeting their legal health and safety obligations and frequently conduct independent safeguarding investigations. Safe Space Legal provides the following services to ensure employers meet their legal obligations:
- Drafting legally sound policies, procedures, and codes of conduct.
- Supporting employers to recognise gaps in policy and/or practice which put them at risk of non-compliance with legal obligations through thorough root cause and gap analyses.
- Delivering training to ensure employers and employees are aware of their legal obligations.
- Conducting safeguarding investigations which are compliant with relevant state and territory legislation and regulations.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations.
- Assistance and support to respond to allegations of health and safety breaches.
- Provide sound legal advice on risk mitigation.
Contact [email protected] or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.