Tips for Physical and Mental Wellbeing

Are your employees physically well? Do they have good nutrition, sleep and exercise habits?

Physical wellbeing relates to our energy levels at work which are ultimately caused by healthy behaviours such as regular exercise, stretching, sleeping well and eating well.

Physical wellbeing is one of the quadrants that make up whole-person health. When this area of health is improved, employees tend to be happier, more engaged and much more productive. Workplaces need to promote and foster physical wellbeing in employees.

Physically healthy employees will get better sleep, leading to more energetic work performance. They’ll also be more alert and self-aware, lowering the risk of injury onsite.

Healthy employees will request time off less often and will be sick less often.

Exercise leads to a stronger workforce, with healthier minds and better overall company culture.
1. Avoid sugar slumps. That post-lunch sugar-hit may feel good for an hour or two but the slump is not far behind. Educate employees on the best way to fuel their body and sustain energy throughout the day.
2. Don’t spend all your time sitting. Even when sitting down in a desk all day, you come home exhausted and all you really want to do is relax on the couch. Get your employees moving where possible. Walking meetings, going outside for lunch, doing some simple stretches, and taking the stairs rather than elevator can all lead to improvements over time.
3. Promote tips for good sleep. Employees may not know why they aren’t getting good sleep, but they definitely know that they aren’t. Provide tips for better sleep to employees; they may not all be intuitive. Limiting screen time, avoiding stimulants such as caffeine before bed-time, and exercising can all lead to better, more solid sleep.
4. Encourage work-life balance. Don’t create a company culture that encourages employees to always put work first; not only is that not healthy, but it’s also not sustainable. Tell employees to consider their health both during and outside of work hours, and make sure that your company culture emphasises happy, healthy employees. Employees who know that their company cares about them are more likely to care about their company.
5. Implement a team health challenge. Not only can a team health challenge motivate employees to create long-lasting behavioural changes and to develop better personal health, but it can also be a part of your team-building exercises. Working as a team will help your employees bond and will begin to build a stronger company culture.

Employees need to be able to put their health first if they want to focus on their work. When employees are healthy, they are able to better focus on their job. If employees are not feeling well, it is difficult to focus on work no matter how hard they try.


Don’t just be negligent, be reckless - Unpacking Australia’s first industrial manslaughter prosecution

Don’t just be negligent, be reckless - Unpacking Australia’s first industrial manslaughter prosecution

By Harold Downes, Partner and Belle Sakrzewski-Hetherington, Lawyer

 

The Facts

Noting that this decision has already been widely misreported, it seems apt to direct readers to the full judgement at the outset of this article. You can view the judgement here.

Mills Oakley acted for all three defendants in this proceeding. His Honour Judge A J Rafter handed down his decision on 11 June 2020 and the defendants were sentenced as follows after they each pleaded guilty:

  1. Brisbane Auto Recycling Pty Ltd (BAR) was convicted of one count of Industrial Manslaughter (IM) contrary to s 34 of the Work Health and Safety Act 2011 (Qld) (WHS Act). It received a fine of $3 million and a conviction was recorded.
  2. The two directors, Asadullah Hussaini and Mohammad Ali Jan Karimi were both convicted of one count of reckless conduct – category 1, contrary to s 31 of the WHS Act. They were both sentenced to 10 months imprisonment, wholly suspended for an operational period of 20 months, and a conviction was recorded.

The monetary penalty for BAR was always going to be in the region of 1/3 of the maximum which is $10 million. The two directors are extremely relieved at the sentences they received. We do not expect the prosecutor to appeal however they have 28 days from the date of sentence to do so.

The defendants were charged under the Queensland WHS Act. It is important to observe that there are subtle differences in the various iterations of the IM offence which now appear in WHS laws in different jurisdictions. For example, whether the IM offence applies to officers or ‘senior officers’ and whether monetary penalties are available.

These are our observations on the implications of the decision, the IM offence more generally and its interaction with the original offences under the WHS laws, most relevantly the category 1 offence under s 31 of the WHS Act.

IM requires the prosecution to prove criminal negligence. It attracts maximum penalties of $10m for a corporation and 20 years imprisonment for ‘senior officers’ (with no option for a fine). Reckless conduct – category 1 requires the prosecution to prove recklessness and attracts a $3m penalty for corporations, 5 years or $600,000 for officers and 5 years or $300,000 for workers.  Does it seem odd that mere criminal negligence attracts a more severe penalty than recklessness?  It does to us.

Strategy just became very important

Recklessness requires foresight of the probable consequences of the accused’s actions and that they display indifference as to whether or not those consequences occur.[1] It requires the prosecution to prove that the accused made a conscious choice to take an unjustified risk.  

Criminal negligence on the other hand requires an objective test to be applied, of whether a reasonable person would have known that he or she was exposing others to an appreciable risk of serious injury or harm.[2]

The illogical result of the gross disparity between the severe penalties, particularly for individuals for the IM offence as against the lesser penalties for reckless conduct – category 1, is that lawyers will search for evidence of recklessness, to enable their clients to strategically plead to the more egregious offence of reckless conduct – category 1.

This was our strategy from the outset, particularly given our individual clients had the added, potentially catastrophic outcome of deportation given their permanent resident visa status. This was exacerbated by the fact that as refugees, noting the principle of non-refoulment, they would face indefinite detention pending, hopefully, resettlement in another country. This was the consequence they faced if they were to receive a custodial sentence of 12 months or greater.

Post incident conduct

As the media has thoroughly canvassed in its (frequently inaccurate) coverage of this decision, the directors’ conduct post incident was a prominent sentencing consideration for his Honour Judge Rafter.  This highlights the need to build a relationship with a good WHS lawyer and engage with them early post incident in order to manage communications with various stakeholders such as the police, the inspectorate, next of kin, medical support and workers.

When it became apparent to us that a breach of the WHS Act was obvious, the focus turned immediately to mitigatory evidence rather than exculpatory evidence. Given the potentially extreme consequences, this has become a critical part of incident response.

The IM offence

In her review of the model WHS laws, Ms Marie Boland provided the following justifications for the introduction of an IM offence into the model WHS laws:[3]

While it is established law in both England and Australia that a corporation can commit the crime of negligent manslaughter, many legal experts point to significant hurdles for prosecutors to overcome to secure a manslaughter conviction against a corporation. Prosecutors must identify a grossly negligent individual who is the embodiment of the company and whose conduct and state of mind may be attributed to the corporation (identification doctrine).”

Difficulties within the common law with regard to aggregating the negligence of more than one such individual (the prohibition on aggregation) have also been highlighted by UK legal experts—a prohibition which, they say, makes prosecutions of large companies for manslaughter almost impossible. The Queensland Government cited difficulties in its Criminal Code as a key reason for introducing its industrial manslaughter offence. Specifically, it said, ‘the need to identify an individual director or employee as the directing mind and will of the corporation … ultimately means that manslaughter prosecutions under the Criminal Code are only successful against small businesses and that prosecutions against large corporations are unlikely to succeed. The identification of a grossly negligent individual who is the embodiment of a small company is not as problematic, as with small companies it is often the case that the director will be actively involved in day-to-day operations.”

The ability to aggregate the negligence of more than one individual to a corporation would need to be provided for in the development of an industrial manslaughter offence within the model WHS laws.

A further limitation of the criminal manslaughter offence concerns sanctions. Traditionally, the crime of manslaughter is only punishable by sentencing an offender to imprisonment. Courts have interpreted such provisions to mean that a corporation cannot commit the offence of manslaughter because there will be no sanction that can be imposed in the event of a guilty finding. In New South Wales, this has now been addressed so that a court may impose a fine as an alternative sanction where a corporation is found guilty of a crime punishable only by imprisonment. But this is not the case throughout Australia, and the absence of such a provision in Queensland law was one reason cited by the 2017 Queensland Review as justifying the need for law reform.”

Ms Boland’s report was absent any suggestion that there was a need for the IM offence as against natural persons. Further, there is no evidence (before the introduction of IM) of any incident where a prosecution could not be brought against an individual or a company, or where the prosecution failed because its case was too hard to prove. Regrettably WHSQ does not publish acquittals, only convictions on its website. Consider for example the various prosecutions against Nathan Day, Maria Jackson, Claudio D’alessandro, Bill McDonald and Peter Colbert.

The reality is that the means to enforce compliance has always been available. The ability to issue prohibition notices is an extremely effective tool, but rarely used. Regrettably, Regulators have simply not been up to the task of effectively using the tools that are available.  That is not to be critical of the Queensland WHS Prosecutor, he is very skilled. The lack of skill exists within the Regulator. So, instead of upskilling the Regulators, parliament introduced IM in an exercise of intellectual laziness. No thought appears to have been given to the way in which corporations or line managers would respond. We discuss this below and, in our opinion, the outcome has more disadvantages than advantages for risk management.

It is not possible to postulate the offence’s effectiveness in targeting prosecutions of the controlling mind of a large corporation. This was not a useful test case in that regard because BAR was a small corporation and its directors were intimately involved in the day to day management of the business. What is important to mention here is that (at least in respect of the Queensland WHS Act) mid-ranking managers of corporations are exposed to the IM offence.

It seems to us that IM stands to predominantly benefit the prosecution by simply making their case much easier to prove. That was the objective and the objective has been achieved.

Section 244 implications

Section 244 of the WHS Act provides:

244 Imputing conduct to bodies corporate

(1)          For this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

The prosecution successfully argued that the conduct of the forklift driver (who operated the forklift when not licensed nor expected or directed to do so) was attributable to Brisbane Auto Recycling.[4]

The bizarre effect of this provision, is that a body corporate, that may (so far as is reasonably practicable) comply with its duties under the WHS Act, can still be exposed to IM, in circumstances where an employee’s conduct results in the death of a worker and that conduct is within the actual or apparent scope of their employment.

This highlights the importance for line managers both in their day to day activities, and in conducting workplace investigations to also be alert to identifying employee misconduct and expressly calling out anything which is not within the actual or apparent scope of their employment. If this is not done, then the attribution to the corporate defendant is made and that in turn exposes the ‘senior officers’ to IM.

So, not only has the union movement’s push for IM meant that WHS now operates in an extreme blame environment for line managers and officers, but the trickle-down effect is that this will also be the case for workers.

If worker compliance with safety management systems is not strictly enforced, then corporations, their officers and line managers are allowing conduct that will expose themselves personally to prosecution for IM and a sentence which would send them to prison.

Is there a winner?

Yes, those boards or leadership teams that need to see a ‘stick’ in order to engage seriously with WHS, will now be more likely to do so.  IM is certainly a big stick.

However, once they engage, the outcomes may prove to be worse rather than better for risk management. Boards or leadership teams who respond to the ‘stick’ are unlikely to suddenly adopt best practice. They are more likely to adopt the most legally defensive protocols available and, for example, maximise the use of legal professional privilege.

So, our fear is that even a win is pyrrhic.

The loser in this debate

The loser in this debate is safety.

Our forecast? With exposure for mid-level managers at an all-time high, post incident investigation methodologies that enquire into ‘organisational failure’ will be fiercely resisted by line managers occupying roles in the department that is said to have failed. Investigations, driven by the at-risk managers, will be scoped carefully to exclude findings that can send them to prison. Legal professional privilege will be overused, and slow or no release of information will be the order of the day.

Perhaps Charles Dickens anticipated the combined effect of s.244 and the IM versus category 1 illogicality when he wrote in the 1830s:

“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.

“That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

And finally, here are a few things we suggest you consider doing to prepare for a potential IM event:

  1. IM will have such a big impact on your post incident response that it should be put through a management of change process;
  2. Revisit your post incident response protocols to ensure (so far as is reasonably practicable J) that they do not restrict your ability to be flexible in your investigation(s);
  3. Brief your line managers/officers on the offence and what your organisation is doing to look after their legal wellbeing;
  4. Make yourself familiar with the proper use of legal professional privilege;
  5. Those workers / line managers who are exposed to IM (in fact all workers) should be very comfortable with the corporation’s position in relation to its “relationship” with the inspectorate and they should be thoroughly briefed on their rights during investigations, particularly the right to the privilege against self-incrimination; and
  6. Find a good WHS lawyer(s). You are going to need them if you have an incident which has or could result in a death. The difference between a specialist WHS lawyer and one who dabbles in this area could be the difference between imprisonment or not.

Conclusion

If you have an incident at work, and you think you are exposed to a breach of the WHS Act, don’t avoid being identified as having been reckless. That way, you have the option of arguing about a fine versus imprisonment, and if you are looking at imprisonment, the term would be subject to a maximum of 5 years. That is a much better outcome than being merely criminally negligent and exposed to an offence where there is no option of a fine and your prison sentence is a portion of 20 years.

[1] R v Nuri [1990] VR 641 at 643.

[2] Wilson v R (1992) 174 CLR 313.

[3] See pages 120 to 122 of the Review of the model Work Health and Safety laws – Final report by Marie Boland published December 2018.

[4] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 at [59].


What should Business Owners do to protect workers and others at a workplace?

What should Business Owners do to protect workers and others at a workplace?

While you could (and should) read the below article or just use Safetyminder and have it all covered! Contact us Now!

 

Under the current WHS laws, Owners must have measures in place to eliminate or manage the risks arising from COVID-19.

To do this, you should keep up to date with the latest COVID-19 information and advice to ensure that any action taken is appropriate. This includes closely monitoring the information provided by the Australian Government Department of Health, the Smartraveller website and advice from state or territory government agencies, including health departments and WHS regulators. See Information and Resources section below for links to these agencies.

You may not be able to completely eliminate the risk of workers contracting COVID-19 while carrying out work. However you must do all that is reasonably practicable to minimise the risk of workers of contracting COVID-19.

What control measures will be reasonably practicable will depend on the work being carried out by workers and particular workplaces. Generally, you should:

  • determine appropriate control measures in consultation with workers, their representatives and taking account of official information sources
  • implement those measures and clearly communicate them to all workers, including providing clear direction and guidance about what is expected of workers
    • workers should know when to stay away from the workplace
    • what action to take if they become unwell, and
    • what symptoms to be concerned about
  • continually monitor relevant information sources and update control measures when and if necessary. Owners should continue to provide information to workers, including changes to control measures, as the situation develops
  • provide workers with continued access to official government sources for current information and advice
  • provide workers with appropriate personal protective equipment and facilities, and information and training on how and why they are required to use them
  • require workers to practice good hygiene, including:
    • frequent hand washing
    • limiting contact with others, including through shaking hands, and
    • covering their mouths while coughing or sneezing
  • require workers to stay away from the workplace if they are unwell and not fit for work, and encourage them to seek medical advice as appropriate
  • seek advice from health authorities immediately if there has been a confirmed case of COVID-19 in your workplace
  • limit access to the workplace by other people, unless necessary
  • reconsider work-related travel and implement other methods of communication
    • for example, rather than requiring employees to undertake air travel to attend face to face meetings, facilitate attendance by tele or videoconference
  • remind workers that they have a duty to take reasonable care for their own health and safety and to not adversely affect the health and safety of others.
  • provide workers with a point of contact to discuss their concerns, and access to support services, including employee assistance programs
  • allow workers to access available entitlements in line with obligations under any applicable enterprise agreement, award, employees’ contracts of employment, and workplace policies.

 

SOURCE: https://safeworkaust.govcms.gov.au/doc/coronavirus-covid-19-advice-pcbus

Dated 16th March 2020

 

Giving you “Peace of Mind” at the end of each day.

For more information contact us on sales@safetyminder.com.au
or go to safetyminder.com.au


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Send out important new COVID-19 WHS Procedures & documents.

Giving you “Peace of Mind” at the end of each day.

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Working from Home – Abiding by the COVID-19 government requirements

Working from Home – Abiding by the COVID-19 government requirements:

Managing information flow to external staff and ensuring they are kept up to date will all COVID-19 requirements is essential to businesses in today’s difficult business environment. It is one thing to send out information, but it is another to ensure your team has read and agreed to the changes required.
Safetyminder “Safety memo’s” are not only sent to everyone in your business but you received a consolidated record of who has read it and who has signed it off, allowing you track and review when information is being actioned. This can also be applied to your customer’s COVID-19 requirements as well in this every changing environment.

# Along with remote Access to all your safety documentation & information.
# Remote Setup (Cloud Based Software)
# Remote Training
# Assistance in building bespoke documents.
# Ensuring compliance to your requirements via an audit trail.