1. 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

2. 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

3. 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

4. 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)

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Questions