Bill 168 – Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009

Bill 168 - Occupational Health and Safety I want you to be aware of this rather far-reaching new piece of legislation which is an amendment to the Occupational Health & Safety Amendment Act.

In essence, the revision introduces a concept of “workplace harassment” which is defined as being a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome.

In short, it really means that if a worker feels uncomfortable or feels harassed or feels that something has been said or done that is “unwelcome”, the employee has a claim and the claim has rather draconian consequences.

Let’s cut to the quick: the penalties are severe. Anyone (that means individuals in authority positions) who fails to comply with the provisions of Bill 168 can be personally fined up to $25,000 or up to 12 months imprisonment or both and any corporation convicted of an offence can be fined up to $500,000.

This is serious stuff.

What do you do?

The first step to comply with Bill 168 is to complete a risk assessment of the operations within your workforce. That is mandatory and you must have posted written policies in conspicuous places and programs and mandatory workplace violence procedures to address workplace harassment. There must be a workplace policy relating to workplace violence and harassment and you must provide a written copy of the harassment policy to a workplace health & safety committee or a health & safety representative that you must appoint in your business.

You must assess your workplace for workplace safety & harassment issues. Workers are entitled to refuse to work or to stop work where he or she has reason to believe that workplace violence is likely to endanger himself or herself. Similarly, if a worker has reasonable grounds to believe that workplace violence continues to be likely to endanger himself or herself, she may inform the representative or a representative of the Minister of Labour and the employer is required to carry out an investigation.

In a recent matter, that investigation was approximately $18,000 in fees before the determination of whether there had been a workplace safety or harassment issue at all.

The emphasis of the legislation is not on the employment environment, but rather on how the employee “feels”. If the employee feels harassed then the employee has a claim and the employer is required to undergo the assessment protocols. Recourse for the employee is to the Social Justice Tribunal, whose decisions are final.

We have been strongly encouraging our clients since this legislation was introduced over 2 years ago to address these issues and we would be pleased to be of assistance to formulate a workplace safety plan with you.

We encourage you to contact us at your earliest opportunity.

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