11 NOVEMBER 2006 Occupational Health & Safety: Rights and Responsibilities in Health Care ACHSE Essential Update on Health Support Services Sydney, 30 November 2007 SPEAKER Julie Hamblin Partner Ebsworth & Ebsworth

Duty of employers (s.8 Occupational Health & Safety Act, NSW) Ensure premises are safe and without risks to health Ensure any plant or substances are safe Maintain safe system of work and working environment Provide necessary information, training and supervision Provide adequate facilities

Duty to consult with employees on workplace health and safety (s.13) Employer must consult with employees to enable them to contribute to decisions affecting their health and safety at work Failure to do so is an offence under the Act Consultation requires sharing of relevant information about OH&S issues, opportunity for employees to express views, and views must be taken into account Where more than 20 employees, OH&S Committee must be established if requested by majority of employees

Duties of employees (s.20) Employee must take reasonable care for the health and safety of other people at the place of work Employee must co-operate with employer to enable compliance with the Act Failure to do so is an offence under the Act Employer must not dismiss or otherwise penalise an employee for making a complaint about workplace safety or participating in an OH&S Committee (s.23)

Liability of Directors and Managers If a corporation breaches the OH&S Act, each director and each “person concerned in the management of the corporation” is taken to have breached the same provision Very broad provision – could apply to any level of management Defence if director or manager can show he or she was not in a position to influence the conduct; or he or she used all due diligence to prevent the breach

Liability of Directors and Managers (cont’d) In practice, almost all senior managers are likely to be found to have been in a position to influence the conduct ( see Kumar v. Ritchie, 2006) Once accident has occurred, difficult to establish due diligence was exercised unless director or manager had tried to address a particular workplace risk and been overruled Recent study showed 96% of defended prosecutions against corporations resulted in a conviction

Penalties For corporations: Fine of up to $525,000 for first offence and up to $850,000 for second or more offence For reckless death/corporate manslaughter, fine of up to $1.65 million For individuals: Fine of up to $165,000 For reckless death/corporate manslaughter, up to five years imprisonment No director or manager has ever been sent to jail

Workplace bullying and harassment Procedures to address bullying and harassment are recognised part of OH&S obligations Need to have staff training on bullying and harassment and proper grievance procedures Employers must encourage reporting of bullying and harassment, investigate complaints and take appropriate action E.g. Coleman Joinery; Naidu v. Nationwide News

When are prosecutions brought? WorkCover Authority has a broad discretion Will weigh public interest considerations such as: Seriousness of the incident Need to highlight a common hazard or risk to deter similar practices by other employers Degree of culpability of the alleged offender Public concern or community expectation that employer will be prosecuted

Considerations in health care settings Hospitals are highly complex organisations with a large and diverse workforce Often an emotionally stressful environment Operate 24 hours a day – not everyone can be supervised all the time Particular occupational risks, e.g. needlestick injuries, infection control Workplace fatigue Patient violence Risks associated with shift work

Considerations in health care settings (cont’d) Need to have clear policies and procedures to address occupational health and safety risks Also clear lines of management accountability in relation to occupational health and safety

Questions jhamblin@ebsworth.com.au www.ebsworth.com.au