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From time to time, as an FRCSA, I am asked to be part of a Professional Conduct Review Committee to help RCSA members resolve professional conduct grievances that have been made against them by stakeholders.

Almost always the conduct under investigation is conduct that could not reasonably be described as reckless or intentionally illegal.

Frequently the behaviour under examination by the PCRC is best described as ignorant or careless.

My wish is that all recruitment agencies and labour hire firms learn from the mistakes of others so they do not have to suffer the very real (and sometimes significant) damage to their respective reputations (and often, bank balances).

Two recent judgements involving workplace deaths of on-hired workers have highlighted the importance of rigorous and consistent OH&S policies and procedures.

The death of a South Australian worker in April 2020 led to a significant fine for labour-hire firm after a 29-year-old man received fatal head injuries while working at a quarry.

Late last year labour-hire company, Taurus Recruitment, was found to have failed to adequately consult, coordinate and cooperate with the host employer to ensure their employee was protected from hazards and risks.

A SafeWork SA investigation found the worker’s host employer, Taurus’s client, had not conducted a risk assessment or created a safe work procedure for the task that led to the worker’s death and, as a result, the worker was not provided with adequate training to safely conduct the task. The investigation also found that as this risk was identifiable and foreseeable, the host employer had breached their obligation to prevent such an event from occurring.

Taurus said that, prior to the incident, it had a system to check in with employees and host employers, but that this was “informal, undocumented, and inadequate”.

The SAET fined the labour-hire company $40,000 (reduced to $24,000 after a 40% discount for an early guilty plea) plus legal costs.

Last month, in New South Wales, a labour hire company, Prime Metal Roofing, was fined $495,000 for two incidents (including a fatality) that occurred only three weeks apart.

In both judgements (Shortlist $ subscriber link), District Court Judge David Russell highlighted work health and safety provisions specifically stating that companies’ duties cannot be delegated.

Prime Metal was fined $375,000 over a February 2019 incident that occurred at a Riverwall Constructions site where one of its on-hired workers was fatally electrocuted while on the roof.

Judge Russell found Prime Metal had no WHS system of its own; rather it relied upon the safety systems of the other companies at the site and when workers had raised concerns about the proximity of powerlines but were simply told to avoid them.

The second incident occurred just three weeks later at another site, when two Prime Metal workers suffered injuries after falling four metres through an overloaded roof that collapsed.

Interviewed by industry news service, Shortlist ($ link), earlier this month Squire Patton Boggs director Steve Bowler stated that the duty to consult is one that labour hire companies must be “actively involved” in.

“Be aware that just because you’ve sent someone to a host site, doesn’t mean you can go ‘everything’s cool now, we’ve done our duty’,” he says.

“It’s an active, ongoing thing, that duty to consult. It really is an exercise in due diligence, and you need to know your client pretty well, and know the systems they’ve got in place.”

In other words, this is not, and never will be a set-and-forget part of sending your onhire employees to a client site.

A workplace is a dynamic environment with changing physical elements, different workers and varying leadership directives, all of which contribute to an environment that is rarely the same each day or each week. What may have been acceptable last month may not be acceptable this month due to just one or two small changes.

The risk of sexual harassment in the workplace is one that has recently gained elevated importance.

Legislative reform in the ACT will impose a positive duty on organisations, businesses, and even individuals with management responsibilities to take reasonable and proportionate steps to eliminate sexual harassment.

As Crikey opined yesterday

“The significance of this legislation is that it represents a shift in the burden of responsibility, completely reframing how we understand the root cause of sexual harassment and to whom we attribute it.

See, in the best traditions of Australia’s attitude to sexual violence, our institutions and systems predominantly retain an approach that is less do no harm and more give no fucks — at least until a harm occurs. Once something happens, we might respond at an individual level — and even then, there’s only so many f^cks to give, it seems. 

As a society, we have historically engaged in a sort of cognitive dissonance. On one hand, we think of sexual violence and harassment as perpetrated by other individuals — creeps and sleazes who are separate from us. But on the other hand, when confronted with the reality that perpetrators are among us, we often find ways to excuse the behaviour: this one’s a good bloke; he was drunk; it was a clumsy attempt at a compliment; is it worth ruining his career? 

These responses are two sides of the same coin we use to buy our own absolution. Neither response requires us — our communities, our institutions, our places and spaces — to look at ourselves. We make sexual violence and harassment an individual, event-based issue, refusing to recognise that it is a product of an ecosystem to which we all contribute.”

So true – it’s an ecosystem to which we all contribute and it’s equally an ecosystem that we call change.

Here are some questions any recruitment agency and leader might usefully ask themselves to be proactive, rather than reactive on these matters:

  • How well do I understand both the legal and professional conduct obligations I have as an employer to my employees (both internal and on-hired)?
  • How effectively does my onboarding and induction training introduce my employees to any individual responsibilities they may have in ensuring my company’s compliance with the law and professional conduct requirements?
  • How effectively do my systems prompt and help my employees comply with the company’s legal and professional conduct obligations?
  • What ongoing compliance ‘refresh and update’ training do I have for my employees? How effective is it?
  • What independent and regular quality assurance processes are in place to ensure I am not complacent or deluded about the current benchmark of my company’s performance with respect to both its legal and professional conduct obligations?

In today’s litigation-happy and compliance-focused world, I would suggest you can almost never be too cautious when it comes to assessing and mitigating behavioural risk in the workplace.

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