Influencing your Work Health and Safety

If you are one of those employers who regularly say: “Oh no not another Workers Compensation Claim”, and perpetually have one on the go, then it may be time to step back and look at the bigger picture of your work health and safety.

Let’s just go through a few facts and statistics that have been sourced from the “Compendium of Workers’ Compensation Statistics Australia 2007 – 08” published in January 2010 by Safe Work Australia. *

In 2007 – 2008 there were a total of 131, 110 serious workers compensation claims accepted Australia-wide. A serious workers compensation claim is defined as a claim due to death, permanent incapacity or temporary incapacity for a minimum of 1 week

The above figure equates to 13.5 in 1000 employees and 8 claims per 1 million hours worked

47.9 percent of claims were for sprains, strains of joints and adjacent muscles

22.7 percent were back injuries

12.9 percent were hand injuries

17.8 percent were caused by lifting

15.1 percent were caused by handling

13 percent were caused by trips and falls on level surfaces

As you can see, the types of injuries that occur more frequently can be considered quite “common”, regardless of the work health and safety situation.

Yes, you may have an induction process, you may have all the required safety signage in place and yes you think you have hired people that have common sense. However people still keep injuring themselves and you’re left with a workers compensation claim, which affects your premium, leaves you a person short, and you’re wondering why this keeps happening.

Typically there are a few major factors influencing your work health and safety.

Do you have a culture of safety at your company?  This means more than just having a safety system in place. It means that from the top down there is a genuine desire to maintain a safe work environment, and is built with the buy-in of all employees.

Let’s look at an example. John is a supervisor in the grocery department of a supermarket and is running Jody through her induction on the first day. He is showing her the various processes of her job, and when it comes to sign-off on an induction form, there are specific points covering manual handling and John asks “you know how to lift something don’t you?”, Jody nods and this point gets signed off. A clear message is provided to the new employee that correct manual handling is not important, even though she is likely to be moving boxes and individual items for 90 percent of her new job.

Fast forward 6 months into Jody’s new job. She notices that she has to take on more work because some of her work colleagues have made workers compensation claims, and are getting paid for not being at work because they have a sore back from lifting boxes all of the time. Jody’s load increases, she has not been shown the correct lifting technique, and funnily enough it’s only a matter of time before she makes her own application for workers compensation, and the cycle continues.

Do you devote the necessary time to managing worker’s compensation claims and your work health and safety? The supermarket store supervisor’s approach is along the lines of “out of sight, out of mind.” There are other employees to take on Jody’s hours, and there’s just not enough time to manage the claims and focus on the return to work of injured employees. In the meantime, Jody starts to realise she’s on easy street. She keeps telling the Doctor that she cannot return to work, he keeps providing her medical certificates stating she is unfit for full duties and Jody continues to get paid wages.

Whilst this is a very simplistic example, the key points are that although there are work health and safety systems in place, they are not applied correctly and are not inherent in the culture of the company. Combine this with poor direction and management from two levels of management and no regard to the swift return to work of the injured employee, the cycle of injury and workers compensation continues.

Through this example the following points are clear:

-          Work health and safety is more than a policy and sign-off sheets, it needs to be imbedded in the culture and driven from senior management;

-          Existing workplace safety systems need to be reviewed on an ongoing basis, and are not static. Ensure that employees are consulted as part of the process;

-          Workers compensation claims need to be managed by a representative of the company to insure minimum impact on the business and effective return to work of the injured employee. It’s not enough to rely upon the insurer and doctors.

No leave, No life!

Australian businesses are carrying billions of dollars’ worth of annual leave liability and millions of days of untaken annual leave. What does this say about the Australian modern workplace?

Paid annual leave is supposed to give people the freedom to enjoy regular rest and respite from work without financial hassles. This should be great for businesses because employees don’t get burnt out and great for employees because they can have a healthy work life balance. As is often the case things do not always turn out as one might expect.

Australia’s paid annual leave system is unique in that untaken annual leave is accrued indefinitely and paid on termination or when leave is eventually taken. Leave is always paid at the employees most recent salary (not the salary applicable at the time the leave was accrued) and it is often paid with an additional 17% annual leave loading (bonus). As a result many employees in Australia equate their annual leave account as a savings account which they can access at some point in the future, particularly when they are changing jobs.

Australia’s preference for banking annual leave has the following unintended consequences:

1. Employees end up burnt out
2. Businesses end up with large leave liabilities in their balance sheets which is money that could be invested in growing the business or paying down other debts
3. Employees view changing jobs as a means to access their accrued leave which leads to higher employee turnover
4. Taking all four weeks annual leave per year is subtly discouraged In many workplaces

In other jurisdictions, like the United Kingdom, things are very different. In the UK annual leave is provided on a “use it or lose it” basis (i.e. annual leave is not accrued from year to year). This policy relieves businesses from the balance sheet liabilities and encourages a positive attitude towards taking annual leave. People who have worked in the UK know that in July and August is a quiet time of the year as most employees take time out to enjoy what little summer weather is available. From personal experience working in the UK I think there is a much more healthy and positive attitude towards taking four weeks annual leave each year.

Here in Australia employers can better manage annual leave with well considered annual leave policies and procedures that work within Australia’s employment law to promote the taking of regular leave and the minimisation of annual leave banking. Call us if this is something you would like to explore for your business.

Social Media Policy & Unfair Dismissal

Most companies have resorted to social media as a promotional strategy and channel to reach their main customers. It has been found that for businesses operating particularly in the consumer goods and hospitality industries, social media is a must in order to simply remain alive within the competitive market that exists today. Businesses practice using social media for branding, communication and promotional purposes.  The fine line that lies between using social media for work purposes and social media for leisure can cause huge debate. Therefore, a social media policy strategy must be practiced to avoid unfair dismissals from arising.

Several employees all around Australia have already lost their jobs due to inappropriate comments, ‘likes’ and ‘tweets’ made on social media networks and a lacking social media policy. James Manning from the Sydney Morning Herald reported that, Alec Armstrong was sacked after commenting on Facebook that the council had too many office staff and not enough workers. Jane Morgan was fired from her job at a construction management company in Sydney in 2009 after she wrote a message on a friend's Facebook wall saying the company "sucks".

As our society focuses more on communicating using technology via social media networks, there are more risks to the reputations of businesses with unhappy or regular status updating employees. People can communicate to several hundreds of people at a time in just a few seconds and any bad comments mentioning a particular company’s name or processes can be more damaging and costly than the legal expenses required to go to court.

Mr. Young a partner at the Sydney-based law firm Holman Webb believes that coming out against the company in the public domain can be reasonable grounds for dismissal.

In contrast, “a decision handed down by Commissioner Roberts of Fair Work Australia reinstated an employee of Linfox who had been dismissed for material which the employee had posted on Facebook. Commissioner Roberts noted that Linfox did not have a social media policy either at the time of the employee's dismissal, or at the time of hearing. Instead, Linfox sought to rely on its induction training and handbook. The absence of a social media policy, Commissioner Roberts observed, was "not sufficient" and was considered an unfair dismissal.”

So what is the purpose for social media policy?

Social media policies have two main purposes, to provide reasonable guidance to employees so that their use of social media does not get them into trouble with their employer and to provide a written basis for any disciplinary action, including dismissal which the employer may consider necessary for adverse action.

What social media use is an employer entitled to regulate?

The most challenging part of creating the social media policy is differentiating between the social media use in the course of employment. Employees who are in charge of the social media communications channel vs. personal social media use that is unnecessary to complete the job description responsibilities. Guidance for such employees is best provided in their individual job descriptions and the social media policy is to be used as guidelines for social media use which occurs outside the course of employment.

Employers are entitled to address social media communication which is taking place outside of the course of employment on the employer’s equipment (i.e. computer or smartphones) as well as social media communication occurring in the employee’s home with their own equipment as it has the potential to damage the employer and their reputation.

“When it comes to social media use outside the course of employment, there are four broad areas in which that social media use has the capacity to affect employment (and thus, in turn, to concern the employer, and to merit attention in the employer's social media policy).” These include, social media use which has the capacity to damage the employee’s professional reputation, the reputation of the employer, the employee’s ability to work with their colleagues and finally social media use that breaches another of the employer’s policies e.g. discrimination, harassment and bullying policy.

These must be identified throughout the social media policy in order to truly inform employees of when and how they can use social media and when their actions can become a risk to their employment. This in turn will avoid claims for unfair dismissals and make the grounds of unfair dismissal easily understood by all parties.

Flexible Working Arrangements

With the introduction of the National Employment Standards (NES) from 1 January 2010; employees who are parents or carers of under school-aged children or parents or carers of children under the age of 18 with a disability, have the right to request flexible working arrangements from their employer.

What is a Flexible Working Arrangement?

A flexible workingarrangement is a change in the ordinary working arrangements of an employee based on their caring responsibilities for a child. Examples of flexible working arrangements include:

Flexible working hours.

A compressed work week.

Working from home.

Teleconferencing.

Job sharing.

A reduction in working hours.

Who can request a Flexible Working Arrangement?

For permanent employees, 12 months continuous service is required before a request can be made. For casual employees, they must be a long term casual and have a reasonable expectation of continuing employment on a regular and systematic basis. In addition to this, they must be a parent or carer who meets the conditions mentioned above. Requests from employees must be made in writing to the employer, stating the details for the changes that are sought and the reasons for the request.

Can a business refuse a request for a Flexible Working Arrangement?

The employer must provide a written response to the employee within 21 days of the employee’s request, stating whether the employer grants or refuses the request. The employer must also provide reasons if the request is refused. The response may offer other options to the employee. The Employer, however, can only refuse the request based on reasonable business grounds which include, but are not limited to, the following factors:

The effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service:

The inability to organise the extra work amongst existing staff.

The inability to recruit a replacement employee to cover the changes/loss of hours.

The practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.

The financial impact on the business, as well as the impact of efficiency, productivity and customer service.

What can you do to ensure you are compliant?

Provide flexible work arrangement policies that are written in plain English, easy and clear to understand by all your employees.

Develop policies that explain what flexible work arrangements are available and the criteria that will be used to assess applications and implementation guidelines.

Provide easily accessible application forms for employees.

Develop flow charts outlining the application process, including timelines.

Circulate detailed implementation guidelines to relevant management.

Employers and employees are encouraged to discuss their working needs and arrangements in order to strive to reach an arrangement that balances the needs of both parties. As an employer, you should also be mindful of any State or Territory laws that provide employee entitlements in relation to flexible working arrangements, such as carer’s provisions under anti-discrimination laws.

If there is a dispute to what is agreed in an employment contract, enterprise agreement or other written agreement, then, to seek mediation in case of disagreement, the Fair Work Act 2009 empowers Fair Work Australia or some other person to deal with the dispute.

Employment Law: Studying and Training for the Critical Issues

Company owners, supervisors, managers, members of the human resources team and other key company personalities should be aware of and updated regarding employment law. It’s not an option, it’s a requirement. Company leaders should be knowledgeable of a number of statutes, practices, rulings, interpretations and current laws that apply on the local, federal and state levels.  

It’s a requirement because the company is expected to be completely aware of all existing and applicable employment law. Failure to do so could mean law suits, penalties and even government action against the company. This is, clearly, a critical and sometimes complicated task. Some components of it require not just a considerable amount of staff hours but also a considerable degree of expertise and experience. Some organizations have an in house department or team or even a legal department to handle the processes and issues covered by laws on employment. Other businesses hire human resource consultants or service providers to make sure that they have an experienced and knowledgeable team managing the critical processes and issues.  

Critical aspects in the business that need expertise regarding applicable labor law include several issues and processes under Enterprise Agreement such as Enterprise Agreement terminations, drafting and lodging of Enterprise Agreements, variations, calculation of compensation and representing the organization before a tribunal that handles all matters related to Enterprise Agreements.

Another task that requires knowledge on applicable labor legislation is drafting the employment contract. A task accomplished during the recruitment and hiring process, drafting the contract employment is in critical need of guidance from someone knowledgeable in labor laws. This is to make sure that there are no phrases or words that could be misunderstood and could lead to lawsuits. Other tasks such as drafting company policies and procedures and managing occupational health and safety, and employment conditions also need expertise on applicable and relevant laws.

These and other similar tasks such as those for recruitment and hiring, in particular tasks for hiring employees from abroad and up to the end of engagement or employment are among the critical issues and processes that demand skill – and, therefore, a fair amount of studying and training – to be able to provide sound legal advice and, in some cases, provide legal representation.

Yet another set of tasks that require knowledge of laws on employment are those that are required to resolve Industrial Relations disputes and other issues such as union right of entry and good faith bargaining. Handling issues under wage claims, managing National Employment Standards and applicable industrial instruments, auditing and reporting, obligations on record keeping and counsel and representation during claims regarding wages and employee benefits.

Whether you have an in house team or a service provider handling these tasks, what you need to make sure is that the team is competent and well trained. For an in house team or department, that means training and constant re training to make sure that the team is updated on the prevailing laws, as well as the trends and processes used in handling issues that fall under employment law.