Removing the Glass Floor – Ignorance is No Excuse

With some recent and proposed changes in WHS Legislation around Australia, now is probably a good time to remind NFP Boards about their responsibilities, and consequences of not getting this right.

In July, 2017, the Western Australian Government announced the development of a modernised Workplace Health and Safety Act based on the National Workplace Health and Safety Bill. More recently it has been indicated this bill will be introduced mid-2019. All other Australian States have already implemented similar bills, so this decision will bring the whole of Australia under similar laws.

In October 2017 the Queensland became the first Australian State to introduce an “Industrial Manslaughter” offence into their WHS Act – creating an offence where a “worker dies, and a senior officer or director was the cause of death or was negligent in causing the death”. Victoria, South Australia and New South Wales are proposing similar changes, and it’s rumoured that Western Australia’s proposed WHS Bill will include similar provisions.

Unfortunately, there are two flawed approaches often taken by NFP Boards, particularly small NFP Boards, where directors are often voluntary and often lacking Board experience/training.

1. The “Glass Floor” Approach is often taken by organisations, where the Board, and even at times the Executive, delegate the responsibility for WHS to those below them, believing it’s no longer their responsibility – thereby placing the responsibility below the so-called “Glass Floor”.

2. The “it doesn’t apply to me” Approach where the opinion is held that the WHS Acts do not apply to NFP organisations and NFP Directors. I have come across this approach many times, and not just in relation to WHS compliance.

The introduction of harmonised workplace health and safety laws bought into play instruments whereby Directors and Executives can be charged for WHS Offences based on their negligence – i.e. a Director or Executive have not ensured WHS requirements were complied with within the organisation under their control. If found guilty a Director could face significant fines and even jail time for Category 1 offences. NFP Directors are not immune to these charges - even those working in a voluntary capacity can face charges under some circumstances - and their actions can expose their organisation to charges, even if they are not individually culpable.

The introduction of “Industrial Manslaughter” laws will make the possible consequences for Directors and Executives even greater.

Boards need to ensure their Directors are aware of their compliance requirements, and possible consequences of non-compliance. Ignorance is not accepted as a defense in these issues so please ensure your Board is provided the information they require to fulfill their duties. If needed, bring in 3rd parties to conduct information and training sessions with your Directors.

Legal requirements aside, I believe even a voluntary Board, despite the protections built into the WHS Acts, should consider:

• An organisational culture should be driven from the top - Directors taking, and being seen to take, WHS seriously will go a long way to developing a positive organisational culture in this area.

• Workers employed under a voluntary Board should be afforded the same WHS duty of care as any worker for any other organisation.

• All Boards should strive for "best practice" and as such, where reasonably practicable, should strive to comply with the same requirements applicable to any other Board.

Please share your thoughts in the comments section below, as I learn just as much from you as you do from me.

If this is an area in which TakeControl Solutions may be of assistance to your organisation, please do not hesitate to contact me.

Dwayne Wescombe

Managing Director - TakeControl Solutions