Webinar: Exercising Duty of Care in the Workplace

Webinar Transcript

 Welcome everyone to dita Solutions Webinar on exercising duty of care in the workplace. Thank you for joining us today as we dive into a discussion on duty of care in the workplace. Let's get started. So just a little bit about myself. My name's Ben Pedrazzini. I'm the CEO of dita Solutions. We started this organization with a good friend of mine, Steven White, and we joined forces with Olympic Gold medallist coach Laurie Lawrence, to develop Worldwide Swim school.

And from there, dita Solutions quickly became a workplace safety system, and it's evolved into a more automated and business work platform. Today's guest speaker is Joanne Simonelli. Joanne is the CEO of Evolve Compliance Solutions. Evolve consulting is a boutique consultancy provider providing niche solutions specializing in management of risk and development of resilient people, systems and processes.

Evolve Consulting is our specialist is an integration division and a leading innovator in holistic it for purpose solutions. Our approach to solution-based governance, risk management and compliance monitoring have been acknowledged as best practice methodologies and recognized by some leading certification bodies.

So we're very happy to have Jo in here with us today. So let's start by just doing a broad overview. What is duty of care? Everyone has duty of care, a responsibility to make sure that they and others are safe in the workplace. So let's just break that down a little bit of the legal obligations that we all have and to take reasonable steps to not cause any foreseeable harm to others.

So the first is a general duty of care. So there's a general duty of care. On employers of the workplace to ensure the health and safety and welfare at work of all employees and others who come into the workplace. What's reasonable measures mean in duty of care? So it is the employer's responsibility to ensure that all reasonably practical measures have been taken to control risks against all possible injuries arising from the workplace.

And who does it apply to? The employer's duty of care applies to all people in the workplace, whether they be staff, visitors, contractors, et cetera, anyone coming into your workplace, and even clients and customers. So what's the employee's duty of care? So there is a general obligation on employees to take care of others and cooperate employers in matters of health and safety. All in all sort of workplaces can have significant risks of health and safety. Therefore, employers are required to organize their workplace and their work systems to ensure people at work are not put in harm's way. So what we're going to do first up, so we did these recordings earlier on with Jo, and so what we're going to do is first discuss with Jo about duty of care on hold.

Hi Jo, this is this is Jo Simonelli. She's the CEO of Evolve Compliance Solutions. Jo's coming on today to assist us with answering some questions around duty of care.

So Jo, thank you very much for coming and would you like to just explain to us overall what is duty of care?

At a high level duty of care is really an obligation that sits on any person that's in control of any organization. That responsibility is really for the health and wellbeing of any person that potentially could be involved in any harm relating from any of the operations within that organization.

If I term it a little bit simpler and I guess. Relates to due diligence, and it's really the role and influence of a person in control of a business in order for them to generally ensure the safety and wellbeing of those within their organization. So under the Workplace Health and Safety Act, there's really been a number of changes in the last few years and the commencement of the new Queensland 2018 act and regulation that relates to obviously the amendments under the electrical safety, workplace health and safety and water activities legislation.

There's really some new controls around that. And there's really some compliance outcomes for people that don't have an understanding of what their due diligence role is and how it could actually affect people. And I guess the best instance of that would be the industrial manslaughter legislation that's come through.

There is an ultimately a personal disadvantage for not understanding what due diligence is in your business. People have different activities which impact, from slip trips and falls to premises liabilities. You could be walking in the park fixing, lighting or benches or anything really, and, you could be bitten by a dog or where does that dog come from?

Is there a due diligence on somebody? The general public to ensure your employee's safety. And so it's understanding all these different activities and how they can impact on your operations. So due diligence is really the focus of ensuring that you have. The correct amenities, the correct training, the correct licensing, the correct really role model aspects of your business in place to assure that those incidents, accidents, or other are minimized as much as possible.

So if we look a little bit more deeply into due diligence, I guess there's really reasonable steps that we can take to ensure that. We are maintaining this due diligence and obligation that we have the need to carry out any specific or detailed assessments. As far as workplace health and safety and the implica implications and range of work that we basically need to understand the aspects of and how we could impact others.

So it's main maintaining up-to-date knowledge of workplace health and safety matters, as well as applying your specific in applying them into your specific operations. It's understanding the nature of your business, so understanding that whole workflow from start to finish of all of your activities and really risk assessing what are the impacts that could actually affect this operation, ensuring that the business has the appropriate resources and processes.

To eliminate or minimize risk of workplace health and safety associated with its operations and ensuring that the business can undertake an appropriate process to review its information, an incident. So having, not just documented evidence, but having it available and presentable in a way that you can actually record and review it later on.

Verifying the steps that you've carried out and ensuring that you are actually reporting on those internally. To see whether you can actually improve those processes. All right. Thanks for that explanation, Jo. What we're we'll move on to next is the relevance of workplace legislation.

So employees must abide by relevant health and safety and law. Employment law, that's all part of duty of care, is understanding what that health and safety employment law is all about. So let's just take a quick look at the legislation. So Australian State and Territory WHS Acts set out the requirements for creating a safe and healthy working environment while the WHS regulations explain the duties of particular groups of people in controlling the risks associated with specific hazards. So both the act and the regulations are legally enforceable. And at the moment, we're running under the Workplace Health and Safety Act 2011 and Fair Work Act of 2009. Once again.

Let's have a talk about that with Jo. She's the expert in this area. So let's have a listen to what she has to say about the legislation. 

Hi, Jo. When we're talking about workplace legislation, how does that impact both the employers and the employees with inside the workplace? 

Ben legislation is varied. It's extensive and. It's in a legal language, which a lot of organizations find quite difficult to interpret and really to understand how they actually need to comply with it.

So workplace legislation is made up of various federal and state laws, and I guess the key workplace relation laws in Australia are the Fair Work Act 2009. And I guess that's important because we all have people that work for us. We need to understand that, they are really the ultimate reason why we need to ensure due diligence being our first understanding of how we could potentially harm somebody, but also understanding how does legislation map out our operations?

Legislation covers anything from anti-bribery and corruption, building and construction. Obviously there's a plethora of legislation in that area. Corporations, there's specific Activities that we need to understand, as far as taxation and registrations of organizations there's competition in consumer laws, cybersecurity, employment environment, facilities management intellectual property.

Modern slavery has certainly come up in the last year as being, a massive Potential impact for organizations privacy and data protection, social media. I never imagined that social media would be such a massive part of our organizations as it is right now. And I know Covid is probably enhanced that for all of our organizations.

There's a lot of legislation in that area that. Organizations need to be understanding of, for both employees and employer aspects. Taxation, as I said telecommunications. And then there's the workplace health and safety laws. So I guess if I use the workplace health safety laws as a bit of an example I can run through really the understanding of, how that breaks down.

I. The workplace health and safety law, and if I talk about Queensland as that's where I am currently based Queensland workplace Health and Safety Act 2011, the Workplace Health and Safety Regulation 2011. And then there are codes of practice now recently through the number of changes around 2018, there was obviously an update to a lot of the regulatory requirements and compliance around.

What is the head of power and what is the interpretation and implementation requirements around legislation? Codes of Practice have now been made mandatory requirements as part of a lot of operations. And, those, the interpretation of those codes of practice and the impacts on organizations, something that, you know, we did without them for so many years, although there were reference points, now we must comply with them. So it's understanding, how they can impact on our organization.

There are, many organizations that can assist you to break down your requirements. But really it starts at the grassroots. And that is, what do we do? How do we do it? And who's responsible for managing it? Once you understand those three aspects, you can really align well, what are the key aspects of what we're doing and how pan legislation determine what we need to do. So again, talking about workplace health and safety, under all of the requirements within workplace health and safety, it's really around the protection of harm.

Okay. Thanks for that Jo. What we're going to look at now is then what happens in a breach. So a failure to meet your duty of care can result in significant damages awarded if the employers negligence caused the employee to suffer an injury. So just breaking that down a little bit, establishing that there was a duty of care is done by proving the employer failed to do what a reasonable person would've done in the circumstances. So it's a question of reasonable foreseeability. Employer negligence can usually be established where it should be, have been reasonably foreseeable by the employer that an injury could result from their.

Whether that be an act or a failure to act, a failure to put systems in place for instance, or processes where it has proven that an employer owed a duty of care, the employer breached that duty of care, and an injury was sustained. Because of that breach, the victim can file Workcover common law. For damages, and that's what we all want to, not for that to happen. We don't want anyone to get injured and we don't want to go down that pathway of Workcover claims. All right.

So once again let's listen to what Jo's got to talk about in the breaching of duty of care. And Jo, if you can just run us through what a company would expect if that a bridge did happen.

God forbid that ever happens to anybody online today. Obviously we're all human and things happen. So it's understanding. I guess the ways that these breaches can come up. There's obviously you. I guess different agencies and regulators that can, find you at any time.

And, they are on a rolling schedule, for different industry. I guess hotspots or industry interventions or campaigns that they might be running at a certain time. Obviously the most common is workplace health and safety. Breaches. And those breaches can be, on the spot fines and through infringement notices, when they're just doing a random check around your area.

And, those breaches can be non-compliances for and improvement notices issued. But those non-compliances could be anything from, safety management construction work sites. They usually like to hang. Manufacturing areas or industrial areas they'll check for licenses on contractors or trainees on site, all these different sort of areas of high risk.

And, it's important to understand that, high risk is really everywhere. There are risks in transport, organizations, certainly with the National Heavy vehicle requirements around employees working too long on the. There's different aspects within each business, and breaches are certainly something that can either be looked at as a part of the operation.

There are certain. Aspects of what we do that may incur breaches, even from an environmental aspect, if tradies are working on a building site, there is often runoff from even washing down concrete jobs or those sorts of things that can obviously interfere with waterways.

So it's understanding how all of these. Compliance requirements can impact on your operation. And it's trying to stop those really at the starting point by understanding what it is that you do, how you do it. So what are the activities that you undertake on your day to day. And then ensuring that you have obviously the controls around managing those.

But there's anything from electrical safety breaches, workplace health and safety breaches. There's things around. Insurance premium compliance. Even with under work cover if you are not reporting the correct numbers to work cover, you can obviously be fined if you're not assuring those things, taxation, there's another area.

So there's really a plethora of opportunities. Unfortunately with the extensive nature of compli of legislation and it's understanding how can. Ensure or assure yourself by minimizing the impact of all of those opportunities by understanding what it is that you do very clearly. Thanks Jo.

So exercising duty of care, the requirements under an employer's duty of care are a wide ranging, as Jo was just talking about and may be expressed in many different ways. So we're just gonna go through. One at a time. The different ways to exercise the duty of care. So clearly defining an employee's roles, jobs and assignments.

So you can't just expect an an employee to come in and know what they've gotta do. You've gotta clearly define that for them in procedures et cetera. And they have to make sure duty of care is taken in, into considerations, ensuring the. The safe work environment for all people. The business must be set up in a way that, that everyone is working in a safe environment providing adequate training and feedback on performance.

You need to train your staff to be able to perform their roles in that safe environment. And then you need to also then give them feedback on that performance. If in any way that there could be some breaches that may be occurring some things that they're not quite doing correctly.

So you've got to ensure that you're giving them feedback on that performance, ensuring that staff do not normally work excessive hours. Due reasons. There's, there, there's a lot of regulation around about how many hours people are working, especially when it comes to heavy machinery and maybe working at heights, et cetera.

You've gotta ensure that those you're sticking to those hours that are set out and, ensure that they're not overworked, tired, where mistakes can be made and and incidents can happen. Because then you'll be, there'll be a duty of care on your part if you've overworked the employee.

And an accident happens providing areas for rest and relaxation. Every workplace should have an area for staff. To have breaks you must have a break small 10 minute breaks in paid time, and then every five hours you have to give a half an hour unpaid break.

That's what it is here in Queensland. But you say you need to ensure that there's an area for them to have rest and relaxation, protecting staff from bullying or harassment from either colleagues or third parties. This is really important this day and age. To understand and to identify if there's any harassment or bullying taking place in your workplace, whether that be from other staff members or management or supervisors, or whether it be from clients and customers coming into your business place.

Sometimes people can be quite upset and you've gotta ensure that a staff member's not under any duress from bullying, harassment. Protecting staff from discrimination. So we'll be very aware of the discrimination laws and ensure that all staff are protected from any form of discrimination at all.

Providing communication channels from employees. To raise concerns. So it's not just enough putting systems in place providing training, but you've also got to allow the employees to be able to bring and raise concerns to you some way that there's not gonna be any fallback onto them for bringing up those concerns.

Consulting and reviewing with employees on issues that concern them. One way, you've gotta, you've gotta put in place a system where they can raise concerns, and then you've also gotta go through a consultation process with them and review that to ensure that that you are taking care of them and what they feel might be of a concern to them.

Produce quality products and best, and provide best service to customers. Once again duty care is not just on your staff, but it's also towards your customers, your clients. So ensure that you've got quality products. You're not se selling substandard products and make sure that you're giving the best service to your customers, keeping them safe with inside of your workplace as well.

Take measures to avoid pollution to the environment. That's and that's far more applicable on some, in some workplaces than other, especially construction sites and so forth. But, you've gotta minimize those pollution risks from the environment in a workplace, and comply with all laws and regulations as we.

We set out there before it's important that you need to understand all the laws and regulations that affect you in your industry and to make sure that there's policies and procedures in place in your work environment. Okay, one of the subjects that's come up recently is duty of care from home.

So what we're gonna do is have a chat to Jo about that now how do you ensure duty of care to your employees when they're working from home? So let's see what Jo has to say about that. Okay, Jo, one of the things that I think a lot of businesses now would be very interested in understanding is knowing their duty of care in covid times now that so many people are working from home or they've got a they're sharing their roles or they're working some days from home and some days in the office.

So there's. There's a change in the environment. What's the workplace's duty of care when people are working from their home? Just like what, where you are today, where we're doing this interview? Where what are those things that workplaces need to be aware of and put in place in ju duty of care?

How amazing has this world changed just within the last 10 months? Is it I can't believe, I'm almost saying it's a year, ultimately there's two areas, insurance and psychological issues. We all have humans working for us. And the psychological aspect of that human element is, it's really overwhelming to think of all of the issues I.

During the covid lockdown, I was working from home obviously, and I still am some days. But I do prefer to interact in an office environment. I think I personally, get more done in that environment and, working in that close. Closed environment with my children was an absolute nightmare and trying to understand for myself how I was going to, maintain my schedule of work and look after them at the same time was certainly very difficult.

Using a lot of online systems to try and help me maintain my projects and understand, what was coming next was obviously very helpful. But there was a psychological aspect, that I feel is left over. I deal with a lot of organizations nationally and, they have, anyone from, five, 10, a hundred, 200 to 3000 capacity staff numbers.

And, some people live in environments where, we had to be locked down. It wasn't about you. Going home and doing risk assessments on every single environment that everybody was in. And everybody was just in an environment where they had to make a choice to go home. From physical aspects of people sitting in their bed on, with their laptops, on their laps for hours and hours, which seemed great for a couple of weeks, even to understanding sitting at their desk, which might look physically you.

I guess set up correctly, ergonomically, within a week potentially the chair that they sat on, wasn't that comfortable and actually started to cause injuries. So it wasn't just a physical it wasn't just a psychological aspect. It was also leading into a physical aspect that was impacting a lot of workers and still today.

Those are things that we need to better understand. Then there's obviously the liability of risk to understand how can those physical or mental aspects impact our liability from an organization's perspective? There wasn't that due diligence initially with the move.

From, working environments to home to, to be able to have time to, understand all of those risks and impacts for our organization. So I think there is a lot of questions out there and certainly things that we need to work on. But I guess the main concern for all organizations was really around the cyber risk.

You went from these secure environments to all of a sudden having open-ended everything and signing up to all these subscription services across all types of different television or video or, just even being able to zoom your colleagues, they're all of these opportunities that cyber criminals have to gather our personal details and to obviously impact on our organizations. I know a number of accounting firms and even law firms that, did have breaches and, the amount of or even large organizations with insurance data, those organiz.

Were expecting that they had all the controls in place, but unfortunately, opening their organizations, with all this level of in-home I guess connectivity. You are never gonna be aware or as prepared as you should be. So hopefully we've learned some pretty valuable lessons and I'm pretty excited about our future.

I think technology has jumped 20 years in those last 10 months, and I'm very excited about the future. But certainly there are some learnings for all organizations around, those risks. Aspects to do with people and systems. So systems are certainly something that I think will stay in the working environment for a long time, but it's ensuring that they are set up correctly and they have all of the capacity and capability that will assure your business moving forward.

Yeah I can relate to that obviously with dita, with what we do with offering solutions for organizations to move outside of the bubble where they had set up previously the secure bubbles that they had in their work environment, but now their workforce is split a amongst, and it's still providing - you still need to, as part of your duty of care, you still need to be able to offer those policies, procedures connections, training onboarding processes, retraining certification follow ups. So those things have really changed over this year. And I'm sure that's a really important part of this duty of care, whether it be in the office or at home as well.

Yeah. Prevention, it is, as we've always said, prevention is better than cure. If you can try and prevent it by having those systems set up with all of the connectivity that you're leading, then obviously you are reducing that impact overall. Excellent. Look, Jo, thank you so much for joining us today.

I, I know of the people that are watching this will be very appreciative of your views. I'll pass out your information at the end of the webinar, but once again, thank you very much for joining us today and we will talk with you soon. Thanks Ben.

All right. So just going through a couple of things after listening to Jo there one of the things that we've got to put in place is building the company policies. That's really before you can have your procedures working in your business, you've got to build your company policies and you've got to create those policies and the training that's in line. That relevant legislation and industry codes of practice. So then that's the first step that you've got to do to set the procedures and then be able to then take care of your duty of care.

Having policies and procedures documented for duty of care in the workplace is an important step. Reinforcing and clarifying expectations each organization has of its employee. So it's there in writing. So an effective policy should include reference legislation. So they understand it's not just you making up this is reference to legislation, so that's why they have to follow it.

Also the purpose of the policy and why duty of care is important. This policy is in place for this reason. And we are doing this because we're wanting to look after Your your care what, who the policy applies to. Which employees or customers or contractors, who's this policy who's it relevant to?

Who needs to read it? The objectives of the business. In relation to duty of care and w h and S. You are gonna set out those objectives for your business to follow for that policy implementation. There's no point in having policies in place if then you're not gonna implement them.

There's you do by law have to have these policies. In place. So then part of that is having the procedures then to follow up with that and implement by implementing the policies your workplace culture. Your workplace culture will be determined a lot by the policies that you create and the procedures that you put in place from that.

What happens if a policy is breached? So you need to know what are the consequences for both the. And for the employer employee if a breach happens. So everyone understands the severity of it. So additional resources look we've got a whole lot of new additional resources in data solutions for your business.

So this is part of what we did through 2020 through the Covid times. Developed a whole range of training modules that address all of these all of the training aspects of arounds legislation and regulations. So just quickly running through them, there's bullying and harassments for your staff, which is a different training module to the bullying and harassment for your managers.

So one's about the understanding of it for your staff, how to identify. And to prevent it. The other one is about the managers and being able to see it in the workplace and ensure that it doesn't happen. Cybersecurity there's a lot of, that's a really hot topic at the moment and everyone's gotta be careful of the security that the businesses are offering, especially with.

Customer details and their staff details. Duty of care for managers providing an overview of WX and s and the responsibilities for practical understanding. Diversity and cultural awareness are really important for all. Businesses to have that awareness of diversity in the workplace and celebrate the diversity to give the business its feel equal opportunity for managers.

So it's important for managers to understand that every employee needs to have the same opportunity so you can. Just side with some people and give them the opportunities. Everyone needs to have the same opportunity to progress in the company and to achieve their goals. Competition and consumer law.

So that's really, that's a three part module designed to cover all aspects of competition and consumer law managers and your customers and business to business. Engagements, workplace health and safety fundamentals will, everyone needs to go through workplace and health and safety training when they first start work, and should be taken through that on a yearly basis as well, or when required privacy.

Understanding the privacy Act and how it applies to your organization so you know, what information needs to be kept very private and secure. Electronic communications and social media. And it's a big part of the world today, especially if people working from home. A lot of the connections a lot of your engagement with your clients and your customers is through social media and electronic communications.

So it's understanding the expectations of the equipment use and online behaviours and security awareness being, provide. Knowledge of business processes regarding the protection, physical and information business assets. They're all very important. So we've got all those training modules. We've had them written up by publishing house. They're there for you to use. You can also adjust them prior to releasing them to your staff. We just put them into the publishing interface and then you can make the adjustments to make it specific for your industry and for your workplace.

And then easily then assign it out to all new staff and ongoing training from then on. As well as that, we've created a whole lot of policy templates that then linked to that. So you've got a policy and procedure templates policy template. Workplace bullying, electronic communications, social media, diversity and cultural awareness, customer service, equal opp, employment opportunities and customer complaints.

So you can see how a lot of that relates back to the training templates that we also have in the system for you. If. It will really help you set up those policies, procedures, and your training ready for you to go in an environment where it can be working inside the work workplace or working from home or externally.

All right, so managing your policies. So once you've got those policies written up then you need to manage 'em. And there's a couple of different parts to that process of managing the policies. And the policies are really the cornerstone of your duty of care. It's putting those policies in place that then have to be adhered to in the work environment.

So using dita documents for your organization's policies can ensure you maintain meticulous records of regulatory compliance. And the three main steps to that is policy distribution. So the system's built so that it automatically distributes all relevant policies and procedures and information to your staff.

So whether they be a supervisor or a. There'll be a set of policies and procedures that they need to go through and need to possibly sign off on and give feedback on. Our system takes care of all of that, of documents and for staff, general staff, there'll be other policies that they have to go through and have an understanding on and agree to an assign off on as well.

So metadata, and that's the part of utilizing online document management system is the collection of metadata. So it automatically collects the tracking and timestamp information so that you know who has read the content, who's read the policy, where they're up to, how long they spent on it et cetera and it keeps a copy of that as evidence.

And then third version controls. Obviously policies need to change. They need to be reviewed. Most cases annual. Depending on the policy sometimes more frequently cuz there may be legislation changes or there may be regulation changes. So you've gotta have to have versioning of those policies as you go along.

And it's important that you have a system that controls that versioning. So you know, the control of each new version of an existing document. While maintaining the data attached to each document version. So you need to be able to keep all that for audit processes and also be able to understand when things changed in your policies and who was notified of those changes.

So that version controlling is very important. Alright, look. Jo I want to give out Jo's details. Evolve Compliance Solutions is an amazing organization. Jo's helped a lot of organizations, small and large. You can get in contact with her by email at [email protected]. On a LinkedIn, if you want to go and connect with her there at Evolve hyphen compliance hyphen solutions on their websites, consult evolve.com.

So follow us on Facebook at dita Solutions or Twitter at dita Solutions, Instagram at Solutions and LinkedIn. dita solutions. If you wanna get in contact first, you can do that at any time by email. You might have specific contacts in our organization. If you don't already, then you can get to [email protected] by contacting us on 3 1 0 7 double four six oh, or just go to our website and there's some contact pages there.

Contact where we'll get in contact with you on the spot at ditasolutions.com. After the, after this we're finished, if you could fill out the post webinar survey, that would be really helpful. Thank you very much everyone for joining us today, and we'll be back with another webinar in the next month.

Thank you.