BSBWHS601A Apply legislative frameworks for WHS Essay Example

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    Other
  • Document type:
    Article
  • Level:
    High School
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    1000

Assignment 1

Initially, prosecutions regarding breaches of occupational health and safety (OHS) have been for long, primarily for physical injury that are caused in the environment for working (workplace), predominantly in the industrial areas (State Services Authority, 2011). In as much, there has been a significant trend concerning the prosecution for psychological injury in recent years. The most significant one regarding the case in which a female employee of Café Vamp at Hawthorn in Melbourne, Ms Broadie Panlock, committed a suicide as a result of relentless bullying by her workers. This was act which the employer permitted knowingly. Still on preliminary information, the victim entered into an “on and off” consensual sexual relationship with her marriage. She was spat on, fish oil poured, called ugly names. Even after first attempt to commit suicide in 2006 the main tormentor even said “if you’re going to do it, do it properly.” Though the employer did not complicit in the bullying he took action and even witnessed on one occasion telling the bullies to “take it out the back” and “tone it down” and finally in 2006 the victim threw herself from a multi-story car park. Using appropriate legal frameworks, this assignment seeks to analyse ways of preventing this forms of behaviours in the workplace.

To control these forms of bullying in workplace the first step must augur with the advice given by Coroner, the Workplace Victoria who investigated the allegations. That is, the employer must be given a fine that commensurate the extent of the buying and such must be pegged on Section 25 (duties of employees) and Section 21 (duties of employers) OHS Act 2004. Basically, going by these Sections, Melbourne Magistrates’ Court did not fine the offenders (the employer and his ally $30,000 and $220,000 respectively) amount that commensurate physical and psychological damage suffered by the victim. Additionally, the ultimate death of the victim cannot be pegged on Sections 25 and 21 otherwise offenders may not shun in future. Conversely, I tend to believe that though Magistrate also considered that in absence of organized induction and without discussion regarding inappropriate behavior that included bullying which gave rise to the suspicion that the level of managerial skill generally exercised by the employer in regard to his less skilled employees was inadequate, Section 27 concerning duty of officers, particularly Sub-section (1) (diligence to ensure the business or undertaking complies with the WHS Act and regulation) was ignored the Magistrate—an aspect that can greatly prevent such incidences in future especially if more fines can be levied on the defiant employers.

Secondly, the newly introduced or the on course Crimes Amendment (Bullying) Bill 2011 to the Victorian Parliament needs ratification. For instance, it was noted that during the period of the case, there was request from the parents of the victims for changes to the law to give the court an opportunity to jail workplace bullies. Therefore the introduction of Crimes Amendment (Bullying) Bill 2011 will only be effective if they are ratified in accordance with Crimes Act 1958. This way it will stop actions from fellow workers who have tendencies of bullying fellow workers. Additionally, such additions will have impact especially when Section 32 of the OHS Act 2004 which has a jail term is put into considerations. Finally, Section 28 & 29 (duties of workplace) which requires that co-workers to take reasonable care and that their actions and omissions do not ‘adversely’ affect the health and safety of other people should be considered so that even co-workers who took place in the bullying and harassment process are also prosecuted in accordance with these laws. There is also one issue that came during this case. That is, currently there is a bill that now appears to take up WorkSafe Victoria’s 2005 guidance on workplace violence and bullying that has specified what elements of the Crime Act of 1958. These are issues that were not reflected in the case involving the female employee of Café Vamp. Therefore unlike this case, what must be considered is whether the acts of violence were:

  • Threats to Kill

  • Intentionally or Recklessly Causing Injury

  • Intentionally or Recklessly Causing Serious Injury

  • Stalking and

  • Threats to Inflict Serious Injury

It can be realized that the above are indeed crime that can be committed outside employment but when the Sections are ratified, they become specific to the workplace. Specifically, inclusion of stalking will be interesting in a workplace situation and such will encompass cases where workers are cyber bullied.

This review can also consider the statement made by Attorney-General of Victoria, Robert Clark concerning Law. He did this in Parliament on April 6, 2011. In the process of his submission, he provided a possible solution to cases of victimization as that done to the lady. His position was that though bullying conduct in the workplace is normally prosecuted and punished under the Occupational Health and Safety Act 2004, the consequence of the act have been extremely serious therefore the bill should provide another response—clear strategies of prosecuting the offenders and such must be pegged under the Crimes Act for the offence of stalking. Though this has been the case, the continuing debate on the amendments should continue in the Victorian parliament so that more coercive laws should be realized—laws that when compared with new OHS harmony laws it positively impact the new Victorian legislative model. A point to note is that at the moment, Section 28 & 29
(b) is only general and talks about workers co-operating with any reasonable policies and procedures of the person conducting the business or undertaking, for example a workplace bullying policy. However, these Sections do not specify these policies and procedures that contradicting the acts of bullying and victimization as may be expressed by the offenders. This is to make the OH&S Act to carry the possibility of jail terms.

Reference

State Services Authority (2011) Trends in Bullying in the Victorian Public Sector: People Matter Survey 2004-2010, Melbourne, SSA, viewed 14 April 2011, 806?OpenDocument http://www.ssa.vic.gov.au/CA2571410025903D/0/9CF696362E0F37D1CA25768F0013