Safety in the Workplace for Therapists

HypnosisAustralia, May 2006

By Dr Tracie O'Keefe DCH, Clinical Hypnotherapist, Psychotherapist & Counsellor
Editorial Director of HypnosisAustralia Online.

One of the issues now facing therapists working from an office in their homes, in a small office in a town centre or at a larger facility is tools to be able to show evidence of complying with Occupational Health and Safety Acts and Regulations. Ask most doctors, dentists, psychologists, counsellors or hypnotherapists about workplace safety and they may not really know what you are talking about - or that they may be placing their business interests, themselves and employees at risk of injury and the potential of their business being seriously disrupted if the statuary authority that is empowered to inspect, investigate, issue on-the-spot fines and prosecute interacts with your workplace.

The complexities of workplace safety laws are new to many Australians. These pertain to the safety of the premises and anyone who has a legitimate reason for being on site, knowledge and evidence of the application of hazard and risk assessment, safe methods of work, reporting and audit systems, the provision of first aid, written information and ongoing consultation and training with all employees and subcontractors to name a few.

There are a myriad of legal obligations that arise when a businessperson invites a customer into their premises or employs someone. If evidence of a reasonable and practicable approach towards compliance with these legal obligations are not in place, not only can access to compensation be jeopardised but business proprietors, managers and employees can be personallyl fined and, in a worse case scenario, be sent to prison.

The busy practitioner may be overwhelmed when having to come to terms with these legal necessities. I talked to Jillian Hayden an authorised representative of a private occupational health and safety company called Work Safe In Business that helps employers and business people to comply with occupational health and safety regulations.

TOK: Tell me, how serious are the problems of non-compliance for small businesses?

JH: As serious as for larger companies. Wherever you conduct your business you need to understand the implications of "Duty of Care" and "Due Dilengence" as specified in the relevant laws. The number one concern is if an incident occurs that results in death and serious injury. This is not only personally devastating and distressing for those involved but also will gain the attention of WorkCover. There are mandatory reporting requirements and the potential of extensive investigation which can lead to prosecution, if not fines, due to lack of evidence of a reasonable and practicable systematic way to assess hazards and risks, and no evidence of the provision of resources and training for employees to understand their responsibilities. As an office-based business is usually perceived as "safe" or benign, many ignore this stuff assuming that it only applies to construction and big industry scenarios. The last thing you want to see is your name in the papers as a defendant of such actions.

TOK: Surely larger government agencies, clinics and charities already have their bases covered?

JH: This is something that many of us assume. Our consultants are sometimes contracted to provide advice within facilities described as therapy centres. Even when a practitioner leases out rooms in a larger complementary health facility they still have compliance requirements to attend to. This may not have been fully understood when formally accepting a contract to supply their services. Also being aware of what induction procedures an owner may have in place for employees or lessees will assist in better time management. For instance, an initial formal induction may need to be completed before the contractor has clearance to go about their activities.

TOK: Can people really be prosecuted for non-compliance?

JH: Yes, there are not only scheduled "on-the-spot" fines for breaches but also provision for prosecution and this applies to ALL employment situations. One example is the NSW Occupational Health and Safety Amendment (Workplace Deaths) Bill 2005. The Bill targets the minority of employers whose reckless indifference to OHS results in a workplace death. The Bill also provides for a defence for such persons who can prove there was a reasonable excuse for their conduct.

Maximum penalties for the offence are $165,000 for individuals and/or up to five years' imprisonment. Corporations can face maximum penalties of $1.65 million.

But coming back from that extreme, there are many situations where an inspector will recommend and pursue prosecution due to such situations as lack of evidence or ongoing disregard of improvement notices that contributed to a serious incident. For instance, in NSW non-provision of appropriate first aid can attract a fine of $25,000. If this lack of basic provision is connected to a serious incident…you can guess the rest.

Also prosecution in regards to fraudulent declarations to minimise Workers Compensation premiums as well as fraudulent claims is vigorously pursued.

TOK: Please give some examples.

JH: The examples below are from http://www.workcover.nsw.gov.au.

Hairdresser fined $16,000 in landmark judgement
22 February 2002

An Illawarra hairdresser has been fined a total of $16,000 in the first successful prosecution for occupational overuse to be brought by WorkCover NSW.

Sakani Pty Ltd (trading as DH&N Beauty Nails), of Dapto, pleaded guilty in the NSW Chief Industrial Magistrates' Court to failing to ensure the health, safety and welfare of a senior hair stylist and two nail technicians, and failing to notify WorkCover of an accident.

WorkCover senior inspector Colin Fraser told the court that although the injuries occurred between October 1998 and May 1999, he had brought the issue of manual handling to the employer's attention in July 1996 during a blitz of 40 salons in the Illawarra.

The hair stylist suffered back strain and the nail technicians suffered back, neck and arm pain during the course of their work.

The employer admitted failing to assess the risks associated with the work being undertaken in its hairdressing salons, and failing to ensure that employees took sufficient rest breaks to avoid the risk of repetitive strain injury.

Chief Industrial Magistrate George Miller expressed surprise that attention was not paid to the risk of repetitive strain injury, given the considerable time and effort spent by the employer in designing its salons and accounting for each minute of employees' time.

In October 2000 WorkCover General Manager Kate McKenzie launched the first Nail Technicians Health & Safety Kit, produced jointly with the Department for Women, WorkCover and NSW Health.

Ex-director guilty of workers comp fraud
10 June 2003

The former director of a Dapto bricklaying firm has been convicted on five counts of workers compensation fraud by the NSW Chief Industrial Magistrate's Court sitting at Wollongong. A WorkCover audit showed that Daryl Wesley Waller, 39, had used false business cards and invoices to reduce his workers compensation premiums by $3,781. Waller falsified the number of sub-contractors and paid workers employed by his company, Coastline Bricklaying Pty Ltd.

Waller exaggerated the number of sub-contractors he engaged - who were responsible for their own workers compensation policies - and reduced the number of paid workers he employed.

He was fined $1,500 on one charge and ordered to enter good behaviour bonds totalling two years on the other four charges brought under Section 178BB of the NSW Crimes Act, 1900. Waller will also be required to pay WorkCover double the amount of avoided premium, totalling $7,562.

$12,256 penalties for Coffs Harbour workers comp fraud
28 July 2003

A former Coffs Harbour security man has been ordered to pay penalties totalling $12,256 after being found guilty in the NSW Chief Industrial Magistrates Court of 18 charges of workers compensation fraud.

Geoffrey William Flower, 53, was fined $200 on each of the 18 counts, ordered to pay costs of $2,462 and restitution of $6,194 to the insurer, Allianz Workers Compensation (NSW) Ltd.

The insurer had reimbursed Flower for hydrotherapy and associated accommodation expenses he had claimed in connection with a back injury suffered while working as a security officer in 1991.

Doubts about the claims were raised in 2001 after Allianz checked the accounts.

An investigation by WorkCover's NSW Fraud Investigation Team uncovered 15 forged accounts for hydrotherapy, totalling $5,414, and three false accounts for accommodation amounting to $780.

Chief Industrial Magistrate George Miller said he favoured making a community service order, but decided on a financial penalty due to Flower's health condition.

Flower was given 28 days to pay, with a moiety of the $3,600 fine awarded to WorkCover.

WorkCover Acting General Manager Robert Seljak commented: "This conviction demonstrates WorkCover's determination to prosecute workers compensation fraud.

"WorkCover recently expanded its fraud and compliance units to ensure that maximum effort is being directed to improve WorkCover's detection and prosecution of workers compensation fraud," said Mr Seljak.

TOK: Getting to grips with the complexities of required compliances can be a nightmare for many of us in practice who want to focus on therapy. What can both larger employers and even single practitioners do in order to comply?

JH: Treat this as a core value of your activities and acquire some resources and training to be able to equip all who are part of your work environment with the tools and skills to participate effectively. An example of a cost benefit is for an informed business owner considering the leasing of work premises. Knowledge of what is a landlord's safety responsibilities as well as such things as "sick building syndrome" and staff amenity when leasing can make a big difference. The bottom line is diligence at a scale that is reasonable and practicable. Research shows that incidents can happen due to a task being infrequently performed and when lack of ongoing training is absent. One of the big reasons that I enjoy working with Work safe in Business is the primary goal to assist in the development of a safety culture within your business that will also address your statutory obligations.

TOK: Does compliance apply to all Australian states?

JH: Yes, with various specific structural differences but the same basic requirements exist. The state and territories' workplace safety legislations are being refined to federal government's national standards regarding workplace safety.

TOK: Any other important issues for therapists to consider?

JH: That the non-provision of workers compensation can also attract fines and not having evidence of an appropriate OH&S programme in place may jeopardise access to compensation, if not fines. This applies to situations where you employ staff, even casually. Please note that even if you are the only salary or wage earner, if you operate as a registered company you are required to meet the above.

TOK: Where can practitioners go for help?

JH: Worksafe in Business is the organisation I work with and we can provide assistance to readers of Hypnosis Australia Online Journal to make sense of their local workplace safety statutory requirements. We have developed numerous industry specific packages and I would be happy to discuss this with individual therapists as well as organisations with premises. If you contact your state-specific workplace safety authority you can access general information regarding meeting your business obligations as well as the national OH&S council. The following site www.business.gov.au has some quick links to these organisations

TOK: Can you give me a brief bio about yourself in relation to the O&H stuff and your contact details.

I have been exposed to and involved in OH&S awareness since my childhood. My father was a safety officer for most of his working life. In my more than 20 years of being in the workforce I have been an employee, contractor, and business owner and as a small business owner I do understand the potential headache this can be. I continue to not only participate in formal training but also learn from you, the client, how to best serve the needs of your business. By working with Worksafe in Business I have access to highly trained specialists regarding all areas of workplace safety. By working with you we can make a difference not only in your practices but also have a positive impact on minimising your business's exposure to potential disruption. Change is inevitable and being prepared and seeking skilled advice can save your business a great deal of money.

You can contact me directly

jillian.hayden@worksafeposters.com.au

0421 545 012

For further information
http://www.worksafeinbusiness.com.au

©HypnosisAustralia, May 2006