On September 24 2019, the Council of Small Business Organisations Australia (COSBOA) called for the withdrawal of the Boland review into Australia’s work health and safety (WHS) laws.
In a media release COSBOA’s CEO, Peter Strong, states:
“The report solely focusses on workers, giving zero consideration to the mental health of employers and the self-employed….”
This is a curious response as work health and safety laws use the inclusive term “worker” which includes employers who also work for the business. There have also been many cases over the last few years where executives have taken time off or changed jobs due to the mental stress that the positions can create, and those executives are as entitled to workers compensation, employee assistance support and other health and safety-related services as any other worker.
The Boland Review of which Strong is so critical said this of psychological health duties under the WHS laws:
“The model WHS Act defines ‘health’ to include ‘psychological health’. This means that the primary duty of a PCBU is to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to psychological health and safety arising from the work carried out by the business or undertaking…..”page 30
“Worker” relates less to company position or role than “employee” and even if it didn’t, to OHS/WHS duty extends extend to “other persons” of which executives would be part.
The media release also states that if the Boland recommendations are implemented
“…it could see employers sent to prison if one of their employees self-harms a result of a mental health condition…”
This is hyperbole but it makes a connection that many have discussed in private but few publicly. If Industrial Manslaughter laws are introduced, as recommended by Boland, could a Person Conducting a Business or Undertaking (PCBU) be prosecuted if their negligence resulted in a suicide of a worker? It is possible, but for many reasons Industrial Manslaughter prosecutions for WHS breaches are generally unlikely and a prosecution related to work-related suicide would sit within that unlikelihood. Industrial Manslaughter laws only apply to deaths so, unless Strong is being delicate about suicide, his argument is shaky.
Only recently lawyer Jackson Inglis reviewed the work-related suicide of Brodie Panlock and concluded that the employer could have been prosecuted under industrial manslaughter laws if they had existed at the time. Inglis’ perspective supports Strong’s concern about prison but one may argue that prison was exactly the place for the owner of Cafe Vamp. If he had been imprisoned, how different small businesses’ approach to work-related mental health would be!
“It is the combination of these two recommendations [psychological health and Industrial Manslaughter laws] that leads to the concern that employers could be held responsible for the mental health of their employees and potentially charged with manslaughter if a mental health condition results in an employee self-harming.”
Brodie Panlock’s suicide seems to provide an excellent example of how these two recommendations can and should work in reality and not in the “ideological view of the world” Strong mentions elsewhere in the media statement.
Peter Strong seems also to miss the safety point of this issue. If one’s primary concern is to avoid prosecution over negligent workplace decisions, don’t make negligent workplace decisions. Appropriate workplace health and safety management policies, knowledge and practice have always been the most effective way to avoid prosecution and it also creates safe and healthy workers. Who woulda thunk?
Strong concludes the media release with this quote:
““This report if acted on will add to the mental health problems of Australia – unless we only allow machines to employ people. This report reflects attitudes that are stuck in the past and fail to grasp the reality of the modern world and the modern workplace.”
This is a nonsense. The Boland report is a single report and it was a review of the current WHS laws. Strong seems to ignore that broader WHS context of work-related mental health but he has not ignored the Productivity Commission inquiry into mental health as COSBOA made a submission to that inquiry (Submission 537). The submission reiterates many of the points he makes in the September 2019 media release.
COSBOA continues to be a member of the Mentally Healthy Workplace Alliance, which Strong references, which is an influential collection of major business groups and mental health advocates which makes his September media release even more odd. One would have thought his concerns about the mental health of small business owners and the self-employed could have been addressed through this Alliance. They were certainly discussed at length in a Safe Work Australia online seminar in 2016, to which the Mentally Healthy Workplace Alliance’s website provides a direct link.
SafetyAtWorkBlog is baffled by the content and statements in the COSBOA media release. It is also confused about the timing of this statement. Is it because National Work Health and Safety Month starts next week? Is it because Industrial Manslaughter laws are planned to be introduced by the Victorian and Northern Territory government by the end of 2019?
Peter Strong is right to be concerned about Industrial Manslaughter laws as the experience in the United Kingdom is that it is primarily small business that is prosecuted, but his connection of this to work-related mental health, suicide and self-harm is bizarre. Let’s hope other media pick up the media release and give COSBOA opportunities to explain beyond a short media grab of outrage.