Australia: Work health and safety duties and dealing with bullying in the workplace by non-workers

Introduction

It is common for businesses (particularly those in the service industries) to experience bullying and harassment when interacting and dealing with complaints from customers and other non-employee workplace participants ('non-workers') in the business.

This can cause stress and anxiety for staff in the work environment.

These issues have come to the forefront as businesses continue to respond to the COVID-19 pandemic by implementing their own policies and procedures for ensuring a safe place of work - and also by ensuring that public health orders are complied with.

Key WHS Legislation

The key pieces of legislation relating to bullying and harassment in the workplace are the Work, Health and Safety Act 2011 (NSW) ('WHS Act') and the Work Health and Safety Regulation 2017 (NSW) ('WHS Regulations'). There is similar legislation in other states and territories.

Section 7 of the Public Health Act 2010 NSW (and similar legislation in other states and territories) gives the Minister for Health broad powers to gazette orders imposing measures to deal with the risks and consequences of a risk to public health.

Purpose of the Work, Health and Safety Act 2011

The WHS Act provides the framework to protect the health, safety and welfare of all workers at work, and of other people who might be affected by the work. The WHS Act aims to protect the health and safety of workers and other people by eliminating or minimising risks arising from work or workplaces.

In furthering these aims, regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work, that is reasonably practicable.

Under the WHS Act, a 'workplace' may be any place where a worker goes, or is likely to be, while work is carried out for a business or undertaking. This may include offices, shops, construction sites, vehicles, ships, and aircraft.

To this effect, a client's premises at which the provision of a service takes place would probably be considered a 'workplace' to which the WHS Act and WHS Regulations. Conceivably, if services are being provided at a private residence, that could be a workplace within the meaning of the WHS Act.

Importantly, the WHS Act imposes duties on other persons at the workplace. Section 29 of the WHS Act relevantly states:

This WHS duty would apply to the recipient of a service when attending the workplace, where their actions affect the health and safety of workers in that workplace.

Primary duty of care for businesses

Businesses must ensure, so far as is reasonably practicable, the health and safety of:

• workers engaged, or caused to be engaged by the person; and
• workers whose activities in carrying out work are in?uenced or directed by the person, while the workers are at work in the business or undertaking.

Businesses must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Without limiting the above, businesses must ensure, so far as is reasonably practicable, the provision and maintenance of a work environment without risks to health and safety.

The person with management or control of a workplace must ensure, so far as is reasonably practicable, that:

• the workplace;
• the means of entering and exiting the workplace; and
• anything arising from the workplace,

are without risks to the health and safety of any person.

What is "reasonably practicable" is expanded on within the WHS Act.

What is "reasonably practicable" is to be determined objectively. This means that a duty holder must meet the standard of behaviour expected of a reasonable person in the duty holder's position and who is required to comply with the same duty. This objective test is demonstrated by the requirement in section 18 of the WHS Act to take into account what the person ought reasonably to know.

As part of the objective test, the courts will look at what was reasonably foreseeable by someone in the position of the duty holder at the particular time.

Given this, any incident such as physical or verbal abuse, or bullying and harassment by a third party towards a worker, would most likely be viewed as "reasonably foreseeable", which could result in the business being in breach of its primary duty of care obligations.

To manage this risk, it is critical that businesses document, action and review incidents relating to workplace safety. These records must focus on identifying the means to either eliminate or minimise the current risks identified in dealing with non-workers' behaviour to an acceptable level of risk.

Potential bullying and harassment of workers

Whilst a non-worker is not an employee of the business, there are times when non-workers may reasonably be expected to be present at a workplace. It is likely that any unreasonable conduct by non-workers such as verbal abuse, bullying and harassment of workers could present a safety risk in the workplace.

Guidance material from Safe Work Australia states that bullying is a hazard because it may affect the emotional, mental and physical health of workers. The risk of bullying is minimised in workplaces where everyone treats each other with dignity and respect.

The WHS Act defines 'health' as both physical and psychological health. This means the duty to ensure health and safety extends to ensuring the emotional and mental health of workers. This duty would apply to both the business and the non-worker, as both are directly involved with the 'workplace'.

COVID-19 has introduced a range of stressors for non-workers, which may cause them to become agitated and lash out at a business's staff. This can result from businesses enforcing site safety rules (such as mandating mask wearing or vaccination as a condition of entry), or more generally from a change of procedure in the business that was brought in to minimise face to face contact between customers and employees.

The requirement for businesses to comply with and enforce public health orders has the potential to cause stress for non-workers and staff alike. It is fertile ground for conflict, especially where particular groups of people feel a moral justification for non-compliance with the public health orders and the directions given by staff.

A different set of stressors have impacted some industries - particularly, the health and aged care sector, where friends and family members have had restrictions placed on their ability to visit loved ones. Being turned away at the door has the potential to cause friction between non-workers and those denying their admittance.

What is workplace bullying?

Workplace bullying is repeated, unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.

• "Repeated behaviour" refers to the persistent nature of the behaviour and can refer to a range of behaviours over time.
• "Unreasonable behaviour" is behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening.

Bullying can also be unintentional, where actions which are not intended to humiliate, offend, intimidate or distress, do cause (and could reasonably have been expected to cause) that effect.

Sometimes people do not realise that their behaviour can be harmful to others. In some situations, behaviours may unintentionally cause distress and be perceived as bullying.

Impact of workplace bullying

Bullying can be harmful for both the workers who experience it and those who witness it. Each individual will react differently to bullying and in response to different situations. Reactions may include any combination of the following:

• distress, anxiety, panic attacks or sleep disturbance;
• physical illness, such as muscular tension, headaches and digestive problems;
• reduced work performance;
• loss of self-esteem and feelings of isolation;
• deteriorating relationships with colleagues, family and friends; and
• depression and risk of self-harm.

Those who witness bullying may experience guilt and fear because they cannot help or support the affected person, in case they too get bullied.

Managing the risk

It can be appropriate to impose conditions of entry to your premises, setting out acceptable standards of behaviour and requiring compliance with work, health and safety laws. Adequate notice of the conditions of entry is required.

If services are being provided outside of the usual workplace, the risks should be assessed, and conditions can be imposed on the service recipient similar to those mentioned above.

In some circumstances, additional control measures such as increasing security by way of visible surveillance or engaging a security contractor may be appropriate.

Public-facing staff can also be trained in how to deal with difficult and aggressive individuals. Resilience training can be beneficial.

To manage potentially stressful situations (e.g. complaints from clients), processes can be put in place to ensure that workers can re-direct certain complaints/grievances to senior persons within the business, in order for those complaints/grievances to be handled at a higher level.

In certain circumstances it may be appropriate to refer a complaint to external lawyers, or the relevant external complaint bodies - such as an industry ombudsman. If your organisation does find itself in such a situation, we recommend getting in touch with Holman Webb's Workplace Relations Group to discuss the options available to you.

A business may also rely on the general law to assist in managing risks - particularly those on its property. Business may have recourse under the laws of trespass and Inclosed Lands Protection Act 1901 (NSW) (see Adrian Robert Halliday v. Stewart Nevill & Another (1984) 155 CLR 1 and TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333).

If justified, a business may apply for an Apprehended Personal Violence Order restricting access to premises, or certain staff who have been harassed.

Lessons for Businesses

Businesses must ensure that they:

• Identify and engage with their duties under the WHS Act.
• Are aware of the behaviours that may cause a risk to health and safety - both in respect of the employees of the business, and the customers, agents, contractors and others who attend the workplace.
• Conduct detailed risk assessments, identifying and documenting the risks specific to their businesses.
• Implement control measures in response to the identified risks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.