How WHS can work with HR to Resolve Legal Issues such as Mandatory Vaccination

There is an overlap between WHS and HR when it comes to multiple areas of employment laws, and more recently in the context of COVID-19 responses and policies for the introduction of mandatory vaccination in workplaces, according to global law firm Clyde and Co.

Organisations have to adopt a risk-based approach and conduct health and safety risk assessments in assessing whether mandating COVID-19 vaccinations are a reasonably practicable control measure in the context of a number of factors, said Alena Titterton, a partner in the regulation and investigation practice of Clyde and Co.

These factors include the various types of work they perform, the potential exposure to vulnerable people, the nature and characteristics of their workforce (among other factors), she said.

This risk assessment should then overlay considerations as to whether it would be considered a reasonable and lawful direction from the perspective of employment law, and also provide for appropriate exemptions processes in order to navigate anti-discrimination laws.

Titterton, who was speaking as part of an AIHS endorsed professional development series of Clyde & Co webinars on WHS and employment (with the next session on Wednesday 22 September 2021), explained The Fair Work Ombudsman has created four tiers of guidance based on work types to support organisations in their thinking around whether a mandatory vaccination would be considered a reasonable and lawful direction.

However, this material must be considered alongside undertaking specific health and safety risk assessment processes.

“As if managing those overlapping areas was not challenging enough, organisations also need to think through the privacy legal ramifications to consider when it comes to your approach to the collection of sensitive health information,” she said.

Titterton also said the areas of overlap between WHS and employment law appear to be increasing in recent years, particularly in the context of psychosocial hazards and risks.

“There has been law reform and calls for further law reform across WHS and employment law contexts in addressing these issues and an increasing level of recognition of the overlap. Key examples where this overlap exists include bullying, harassment and also sexual harassment,” she said.

“I think we will see an increase in the level to which there will be this overlap in the area of psychosocial hazards and risks, and particularly in the context of bullying and harassment and more specifically, in the area of sexual harassment.”

In the context of psychosocial hazards and risks, in May 2021 Titterton said the Workplace Relations Ministers agreed to incorporate specific WHS regulations to expressly refer to proactive risk management requirements for psychosocial hazards and risks, as recommended by the Boland Review.

“That news came at the same time NSW became the first jurisdiction to elevate this hazard category to the level of a Code of Practice and we saw the publication of an international standard, ISO45003,” said Titterton.

The SafeWork NSW Code of Practice on Managing Psychosocial Hazards at Work expressly lists bullying as a common psychosocial hazard as well as harassment (including sexual harassment) and Titterton said the Code requires organisations to undertake risk assessments to proactively manage the risks associated with those hazards.

“That elevation of the issue to the level of a Code of Practice will bring more enforcement activity from health and safety regulators over the coming years in asking organisations how they are proactively managing these issues, rather than the previous approach which predominantly involved organisations responding to individual complaints-based employment legal frameworks,” she said.

“Simultaneously, we will continue to see applications for stop bullying orders under the Fair Work Act.”

Organisations that have a more proactive WHS-based approach to managing the risks of bullying will be better prepared to respond to the stop bullying order legal regime, said Titterton.

This need to proactively manage the risk factors for bullying and harassment when working environments change (such as the manner in which workers are treated when working remotely from home in the context of COVID-19) has already been ventilated in one such Fair Work Commission decision (Bailey v PCL Finance Pty Ltd; Illawarra Home Loans Pty Ltd T/A Illawarra Home Loans [2020] FWC 3771).

Titterton also foresaw continued advocacy to strengthen a prevention-based and positive duties approach to sexual harassment in legal regimes beyond WHS laws.

“While managing the risks associated with sexual harassment in the workplace has always been within the scope of the primary duty under WHS Laws, we do not yet have a Sex Discrimination Act positive duty placed on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible as was recommended by the Sex Discrimination Commissioner in the Respect@Work Report,” she said.

“I believe that reform will eventually be upon us and is indeed a necessary reform to see the cultural change that is required across Australian workplaces.

“WHS professionals have an enormous opportunity here because we have walked this path of supporting businesses with positive proactive prevention-based regimes before and have much to offer in facilitating cultural change programs to eradicate the scourge of workplace sexual harassment. We ought to urgently bring that experience to the table in making sexual harassment in the workplace a thing of the past.”

There are a number of important implications in this for WHS professionals, and Titterton noted there has been a tendency from WHS professionals and HR professionals to want to “stay in their lane”.

“In my experience, neither WHS nor HR professionals are particularly comfortable traversing into each other’s disciplines and seem to work to avoid it at all costs,” she said.

“The difficulty is, ignoring the overlap is simply no longer an option. The complexity in overlapping legislative frameworks is now such that a multidisciplinary approach is non-negotiable for all businesses.”

Given there are a variety of avenues for regulatory interventions or individual claims in the context of issues such as bullying and harassment, whether it be under employment law, anti-discrimination law or WHS law, Titterton said there is a real need for WHS professionals to proactively think about how health and safety management systems dovetail with HR policies and procedures.

“Often in our work, we will see issue and dispute resolution processes and procedures in the HR and WHS contexts that bear no relationship with one another,” she said.

“WHS professionals need to work collaboratively with their HR colleagues and ask themselves whether there are coherent arrangements for addressing these areas of overlap.

“They need to work together to adopt the prevention approach required by WHS laws but also effectively navigate the potential for applications for stop bullying orders, unfair dismissal or discrimination claims.”

Titterton said there is a real opportunity here for WHS professionals to support their HR colleagues in bringing their prevention and risk assessment skillsets to minimise the potential for these issues to arise in the first place.

Conducting the mental health impact assessments and risk assessments for psychosocial hazards and risks now required by SafeWork NSW’s Code of Practice for Managing Psychosocial Hazards at Work and the new ISO45003, for instance, will mean strengthened systems for prevention, she said.

“But part of that approach means looking at organisational system design more holistically than just looking at the design of health and safety systems and processes,” said Titterton.

“If you are going to conduct effective risk assessments in these areas, you are going to need to work collaboratively with your HR subject matter experts to develop and plan effective approaches for prevention and response that are integrated and deal with the myriad potential issues that may result in the event of an incident.

“How you bring those skill sets together for incident investigation in the areas of overlap will also be key for both managing the legal liability risks across the different legislative frameworks and for continuous improvement more broadly.”

Titterton said there is a real opportunity for WHS professionals to broaden the scope of work they have done in fostering positive health and safety cultures and become part of a broader conversation in translating that work into positive organisational cultures that are free of bullying, harassment and sexual harassment.

“We need our WHS professionals to be leaders in that change,” she said.

Titterton is presenting a series of AIHS endorsed professional development Clyde & Co webinars on WHS and employment law, with the next session to be held on Wednesday 22 September 2021 from 13:00-14:00 AEST. The AIHS and Clyde & Co have partnered to deliver the series of webinars which focus on “WHS & the law: case studies, legal issues, challenges and opportunities”. For more information call (03) 8336 1995, email events@aihs.org.au or visit the webinar series website.

Article originally published by the Australian Institute of Health and Safety.

‍