Issue 90 , Thursday 28 May 2015

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[1]

Is your workplace OK?

By Professor Niki Ellis

Adjunct Professor, Institute for Safety, Compensation and Recovery Research and Department of Epidemiology and Preventive Medicine, Monash University

www.nikiellis.com.au

Twitter @ProfNikiEllis

Recently an organisation asked me to consider what being a mentally healthy workplace might look like for them. It was a great brief, they were up for it. I started by having a look at their business strategy and found they were growing, planning to further develop their leadership and workforce and IT platform to enable them to be competitive and make the most of the opportunities they could see. 

I then reviewed their current investment and performance in health and safety and concluded that they were a strong performer in the traditional health and safety model. By that I mean they aimed for zero harm in relation to the prevention of injuries. They had started a workplace health promotion program, but it was early days, and quite a long way off best practice.

A team from Johns Hopkins recently described best and promising practice as:

·         Health education

·         Supportive social and physical environments

·         Integration with HR, infrastructure and environmental health and safety

·         Links between HP and related programs eg EAP. 

And that it works if:

·         Goals are aligned to business

·         Program design is evidence-based

·         Theory-based implementation

·         Ongoing evaluation

What they did have was R U OK, and a great start on a health portal. Way to go.

Potential for web-based interventions

In another project I am working on for the life insurance industry we have done a rapid review on the management of psychological claims. 

The review found that with regard to treatment there was huge potential with web-based interventions for mental health.

A Canadian case study illustrated the future with a confidential web-based mental health self-management resource. This allows someone to assess their own mental health, provides information on treatment and rehabilitation, with supporting material for doctors and then tools for tracking progress. 

The resource was based on recent evidence-based guidelines, and was being marketed to insurers and employers. 

A proposal to become a mentally healthy workplace

Meanwhile back in Australia, having assessed the broader strategic environment and what programs were already in place relevant to mental wellbeing; not just in health and safety and workplace health promotion but also in HR more broadly (EAP, diversity strategy, respectful workplace policy etc), I developed a proposal for becoming a mentally healthy workplace.

This drew on two sources of information: Tony La Montagne's model of an integrated approach to mental health in the workplace; and Gloria Sorensen's conceptual model for an integrated approach to the prevention of 'work-related injuries and illness and the enhancement of overall workforce health and wellbeing'. 

Tony La Montagne is at the University of Melbourne and his model has four components:

·         Prevent harm from psychosocial hazards

·         (using work to) Promote positive mental wellbeing

·         Early detection

·         Manage illness and minimise consequences.

Implementation science is key

Sorensen (above) is the Queen of the integrated approach to workplace health and safety. She is the head of the Centre for Work, Health and Wellbeing at Harvard University.

A colleague of La Montagne's told me the light bulb went on for Sorensen when she was running Quit programs at a foundry, and realised the uselessness of talking to workers about them giving up cigarette smoking in an environment filled with toxic fumes. She presented a generic conceptual model, drawing on implementation science, with the following elements: context (external and organisation); interventions, mediating factors in the work organisation or work environment, mediating factors related to workers, expected early outcomes, and then expected final outcomes, at the first international conference on Total Worker Health, American for the integrated approach, in October last year. (Selected papers from the conference can be found here)

Drafting the strategic direction

Using both frameworks I generated draft strategic directions for this organisation, which essentially draw together and build upon many different strands of activities already in existence across the organisation, with the aim of assisting to deliver on the broader business plan.

These included:

·         Work design and re-design: Proposed as they were building a new IT platform, the idea is that health and wellbeing becomes a consideration in that work. For existing work process, suggested the addition of psychosocial hazards to the existing risk management system, possibly by using the routine employee opinion survey to collect information on the psychosocial working environment and leadership performance.

·         Proposed the concept of work-life balance as a great link between individual behavioural change and work environment change. Could be a focus of communications on the strategy.

·         Extension of a middle management development program on mental wellbeing which had already been developed and run out to some. This is key, if you ramp up conversations about mental health in a workplace you need to be confident middle management can deal with mental health issues, otherwise you may see this reflected as an increase in stress claims.

·         Inclusion of health and productivity, especially mental health, in review of the leadership development program.

·         Continue to develop the health portal in relation to mental wellbeing, noting evidence of effectiveness of web-based self management support and improving mental health literacy.

·         Streamlining business metrics: Opportunity to ensure that relevant indicators for mental wellbeing and their link to productivity are included.

I provided three options for the goal. The first two were based on integrated thinking. One was very broad, an aim of improving organisational performance through health. The second was more tightly focussed – improving workforce capability and wellbeing by including mental health considerations in the development of leadership, systems and workforce. The third option was based on extending the traditional model to better include mental health – that is to contribute to achieving zero harm through programs aiming to minimise psychosocial risks and to promote mental health (separately, as is the tradition). 

Bravo to this organisation for taking this topic seriously and giving it a good shake. They are in a good position to succeed as they have a strong foundation in a high performing traditional workplace health and safety program, and they are not unused to the concept of psychosocial ergonomics.

There are benefits to be had for workers in terms of improved health outcomes and benefits to employers in terms of performance, presenteeism and absenteeism. 

But it is going to take a lot more than asking R U OK. 

[2]

Zero-tolerance drug policies to become the norm?

By Stephanie D'Souza

Impairment caused by the use of drugs is a constant concern in industries like mining, building and construction, utilities and the transport sector, where public safety, workplace safety and employee rights are balanced against each-other.

As technology develops to provide different options for testing in the workplace, eg urine, saliva or hair testing, the options to detect drug use farther and farther back in time are becoming available to employers.

Some legal developments under the Fair Work Act would see the preclusion of more sophisticated methods of testing like urine testing on the basis it affects privacy, as was determined by the Fair Work Commission in January 2014 where Endeavour Energy faced off with the Electrical Trades Union (ETU). The union justified this perspective by focusing the application of the law on whether the worker is impaired at work by earlier drug use.

However, the argument is already changing driven by the emergence of different drugs, one union fearing for the safety of its members and employers changing the basis for their drug and alcohol (D&A) policies.

Clayton Utz partner Shae McCartney has analysed the impact of a number of decisions in 2015 which supported employers who have moved to a "zero-tolerance" approach. They have argued their drug and alcohol policies needed to focus on preventing the risk of incident or injury, rather than whether an employee was impaired.

Urine testing 'unjust & unreasonable': 2014

In early 2014, Fair Work Commission Senior Deputy President Jonathan Hamberger ruled for the third time supporting the ETU's position that urine testing was an unfair imposition for Endeavour Energy's employees.

At the time, ETU assistant secretary Neville Betts said: "While oral testing accurately identifies recent drug use, where an individual may be impaired in their abilities, urine tests unfairly monitor workers' private lives by potentially showing a positive result even where a substance may have been used many days prior, in a private capacity."

In the original case SDP Hamberger identified both urine and oral testing were liable to cheating and that for some drugs, like cannabis, oral testing is superior to urine testing particularly when testing for on-the-job impairment.

"Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance."

When he was still a senior partner at Clayton Utz, now FWC Vice President Joe Catanzariti had analysed the decision, saying by describing urine testing as "unjust and unreasonable" SDP Hamberger had supported the requirement to balance competing considerations when constructing policy. That is "the need to ensure a safe workplace against the need to protect employees from undue interference by employers in their personal lives".

Zero-tolerance favoured by courts?

This decision had been described as a landmark and victory for the unions, but Clayton Utz's McCartney says the courts have since been supporting employers' moves away from impairment-based policies.

"A series of recent decisions by the Fair Work Commission have recognised the legitimacy of drug and alcohol policies and procedures in removing safety risks, and the right of employers to take disciplinary action for drug use, even if there's no actual evidence of impairment."

Referencing the statutory duties owned by employers not just to their workers but to people who could be affected by the employers' business, eg the general public, McCartney noted effective drug testing was particular important in "high-risk industries".

She said the debate around efficacy of testing was further complicated by the "emergence of synthetic cannabinoids (such as Kronic) which can affect employees' fitness for work, but may not show up in establishing testing procedures".

FWC full bench does about face on urine

In late 2014 a FWC full bench overturned a decision precluding urine testing at DP World Brisbane. The original decision by Deputy President Anna Booth had found urine testing was "unjust and unreasonable" even when used as a second test after an oral swab returned a "non-negative" result.

The bench decided DP Booth fell into error by concluding she had to consider the merit of using urine for testing; rather she should only have looked to whether the enterprise agreement (EA) precluded it. McCartney noted the full bench drew on evidence "urine testing was an established part of the site-specific drug and alcohol testing arrangements operating at each of DP World's terminals" and workers had not raised concerns about it during EA consultations.  

Ferry driver collides with wharf

Another zero-tolerance decision McCartney (above) drew on was at Harbour City Ferries where a ferry driver's reinstatement was overturned after urine testing revealed cannibinoid use.

"The fact that the employer had a zero tolerance drug policy was a key factor in the Full Bench's reasoning in finding that non-compliance with the policy justified termination of employment (as there was no evidence that the employee's drug use caused any impairment nor contributed to the incident)."

The full bench judgment observed Harbour City's emphasised its zero-tolerance policy was required due to its responsibility to public safety.

"[Harbour City] does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor," the bench said. "It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment."

The ferry driver had said the use of canniboids was for "pain relief". But the full bench said his decision to use should have informed his subsequent decision to accept a shift "while aware of the likelihood of being in breach" of the D&A policy.

Sara Hopkins and Mark Sullivan from law-firm Lander & Rogers agreed with McCartney's analysis saying the decision was "positive news for employers with zero-tolerance drug and alcohol policies. An employer, particularly where public safety is involved, can require strict compliance with appropriate drug and alcohol policies, without being required to determine that a related safety incident was caused by an employee's impairment".

Urine shows meth in mine operator's sample

In January 2015, the FWC upheld EDI Mining's decision to dismiss a dump truck driver who recorded a methylamphetamine at four times the reporting cut-off figure. McCartney said the decision "provided hope and optimism to even the most jaded employment practitioner".

The worker had submitted she had unknowingly taken the methylamphetamine, saying her drink had been spiked by two strangers over the weekend past.

The Construction Forestry Mining Energy Union (CFMEU) submitted that the worker felt "perfectly well" and the employer had failed to prove any impairment. EDI Mining rejected the need to prove impairment instead drawing on the existence of its "cardinal rule" against non-approved substances.

Commissioner Ian Cambridge said the worker had failed to prove during the hearing that her drink had been spiked and resultantly the employer had acted appropriately to dismiss her, following consideration of the alleged mitigating factor.

"Individuals who attend a workplace like the Mine under the influence of drugs or alcohol endanger the lives of other workers," Cmr Cambridge said. "This test result would of itself, provide valid reason for the employer to terminate the employment of the applicant. This test result was appropriately treated as a prima facie serious risk to the safety of fellow workers."

McCartney said the cmr was "highly critical" of the CFMEU's approach, stating it was "highly regrettable" for an organisation "which apparently conducts campaigns which strongly advocate safety in the workplace".

CFMEU's new 'mandatory testing' policy  

As an alternative to zero-tolerance policies, the CFMEU construction division's announced its "Impairment Policy" in March this year. For the first time for the union, the policy recommends mandatory blanket testing for the first time including testing employers, focusing on scrutinising impairment.

CFMEU national construction secretary Dave Noonan said "We acknowledge that testing already happens in specific circumstances in the industry and accept that our membership is increasingly concerned about the problems associated with people turning up to work impaired and the risks this poses."

The CFMEU proposed impairment assessors would be nominated from the safety committee and would be made up equally of employer and employee representatives.

The Master Builders' Association (MBA) welcomed the union's "belated commitment" but was sceptical the CFMEU's motives included trying to persuade Senate cross-benchers there was no need to extend the powers of the Fair Work Building and Construction Commission.

In spite of this, MBA CEO Wilhelm Harnisch said his organisation was ready to discuss practical solutions for implementing the testing regime. "Master Builders will take at face value the CFMEU's commitment to a compulsory random drug and alcohol testing regime because Master Builders is committed to ensuring that construction workers each day return home safely to their wives, partners, children, families and friends."

Workmates beg workmates to quit drug use

The National Cannabis Prevention and Information Centre (NCPIC) released survey results in May, showing of 2,000 people surveyed 40.3% had worked with a cannabis affected colleague believed it reduced their colleague's motivation and almost one-third believed they were impaired.

NCPIC senior researcher Dr Peter Gates said cannabis affects motivation, reaction time and concentration making it a "blue collar and white collar issue".

Some 38.4% of respondents believed cannabis caused decreased concentration in their colleague, and 31.1% believed it had impaired that person's ability to perform complex tasks.

However, the survey also showed self identified cannabis users did not note the same shortcomings in their work that their colleagues observed, although 10% said the quality of their work would improve if they quit.

Gates said "the reality is, if you are a regular cannabis user, there is a chance your colleagues are going to notice you are letting the team down in key performance areas such as motivation and, in turn, productivity".

47% of users admit to being stoned at work

Gates said the data emphasised the need for clear communication about drug use in work-places. Whilst more than 80% of respondents said they would be comfortable raising the issue with affected workers, and more than 50% said they would be comfortable talking to the cannabis user's manager, only 5% of cannabis users said the issue had been raised with them at work. Gates noted more than 47% of the cannabis users surveyed admitted to being stoned at work.

"Employers need to make sure they have clear drug policies in place at work, and that these are not just included in a pile of paperwork during employee induction." Gates emphasised the use of strong assistance programs and making sure workers feel able to ask for help.

The NCPIC added human resources teams should be educated to look for warning signs where longer term effects can be subtle amongst users. "It's easy to spot drug use at a party...but would you think to consider a combination of a lack of focus, motivation, memory and learning challenges or even sleep issues, as a possible drug issue?".

Perception that workers can avoid testing

NCPIC conducted another survey late last year of 500 tradies across mining, construction, transport and defence. The survey said 21% of respondents indicated they had consumed cannabis within four hours of going to work. Almost two-thirds (63%) said they knew someone who had failed a drug test.

Gates noted in these industries, despite rates of random testing increasing, only 29% of respondents believed they would definitely be tested. A third said it was unlikely or there was only a small chance of being tested.

Gates emphasised smoking so close to working was a warning sign: "If [workers] are smoking before work, it's also more likely they are having a problem controlling their use, which is a sign of addiction. No tradie wants to be responsible for hurting a mate while on the job, so knowing the side effects of cannabis use, and weighing up that risk, is really important."

AHPRA testing doctors' hair

In non-high risk industries, like the health sector, focus on drug-related impairment is also increasing. The Australian Health Practitioners Registration Authority (AHPRA) has initiated a far harsher regime of hair testing on all practitioners with substance related impairment.

AHPRA CEO Martin Fletcher said "under the protocol, all health practitioners who have restrictions on their registration linked to past substance abuse will have routine hair testing in addition to urine testing".

The Australian Drug Foundation says hair testing detects past use up to a few months, and can "therefore test for chronic use". AHPRA drew on its role to protect the public and manage risks to patients.

Can employers ask workers to see the doc?

Swaab Attorneys say employers have the option of requiring workers to undergo a medical assessment if the employer can establish that there was evidence to show an employee's limitations at work.

Swaab Partner Warwick Ryan said in one case the Fair Work Cmn had prevented an employer adding bi-yearly examinations of forklift drivers on top of regular medical assessments already required by the National Heavy Vehicle Accreditation scheme.

However, analysing the case Ryan said "the clear learning from this is that where an employee discloses or displays specific health limitations that cast doubt on their ability to carry out their job, employers can require them to undertake a medical assessment before returning to work".

He added the cmr and the union involved had emphasised privacy concerns for workers if medical examinations had been compelled, so employers should "put some thought into how medical information is going to be stored to ensure the privacy of the individual".

[3]

What's missing in your cost-benefit analysis? SWA has the answers

By Stephanie D'Souza

"For too long, the business case for investing in measures to ensure the health and safety of workers has been viewed in restrictive, financial terms and based on inadequate and inherently biased data," says Safe Work Australia (SWA) in its report into the Business Case for Safe, Healthy and Productive Work.

SWA released the report in collaboration with the International Governance and Performance (IGAP) Research Centre at Macquarie University, as part of a suite of research findings. They are designed to underpin a process to create "standardised and accepted indicators to measure the work health and safety performance of organisations".

The research will inform SWA's three staged policy development process over the next three years:

1.     Creating a draft set of external and internal indicators to improve workplace health & safety (WHS) reporting and aid in completing due diligence;

2.     Testing WHS indicators and guidelines involving case studies, interviews and surveys; and

3.     Reviewing the research outcomes in order to develop standardised policy options for businesses.

Here, Inside OHS examines the research outcomes giving the nudge to employers that investment in WHS measures makes good business sense, and isn't merely a legal obligation. The report shows how investing what it acknowledges are "scarce organisational resources" in WHS programs or assets can be justified by tying together legal, financial and investment perspectives.

The research the report draws upon expands on status quo approaches to risk management, costs and benefits to help businesses comprehensively and pre-emptively develop plans to address WHS risks and increase their productivity.

Silo-driven analysis preventing progress

The SWA has investigated businesses' approach to maintaining WHS standards, finding they do not view the costs and benefits of implementing policy holistically enough.

"Rather than strategically examining the cost-benefit to business of work health and safety, the typical 'silo'-driven analysis produces a narrow focus on a very different concept; the cost-benefit to business of health and safety interventions."

Acknowledging that the benefits of WHS interventions and the costs of failing to intervene are hard to quantify prospectively, SWA says most health and safety decisions "tend to rely on vastly incomplete financial data" producing a bias against investment in WHS interventions.

"As a result, the management literature (and the internet) is peppered with evidence of corporate crises arising from inadequate management responses to health and safety risk; each of which illustrates both lingering reputational concerns, and the significant failure costs that far outweigh the foregone preventative cost of injury or illness."

Getting the basics right: risk management

The report notes strict language in Australian law requiring businesses to "ensure" the health and safety of workers and other persons exposed to risk because of that work. This only exception to this "primary duty of care" is where the costs (including non-financial costs) are grossly disproportionate to the risks.

However, SWA notes that capacity to pay is not relevant to the implementation of adequate protections. The SWA 2013 interpretive guidelines state "the more likely the hazard or risk is, or the greater the harm that may result from the hazard, the less weight should be given to the cost of eliminating the hazard or risk".

Typically risk management literature recommends using one of four strategies to mitigate the impact and likelihood of WHS risks in the workplace: avoid, reduce, transfer or accept. On the first two, the SWA says:

·         Avoid: Eliminate the hazard that poses the risk

·         Reduce: Where elimination is not possible, reduce as much as is practicable. This may involve substituting the hazard with something safer (a less hazardous process or material), isolating people from the hazard or engineering equipment to reduce the impact or likelihood of risk. Further, once this reduction in risk has been made, businesses should use administrative controls like signage and training to minimise any residual risk.

The report warns the latter two strategies, transferring or accepting risk, are not permissible by law, as the application of risk management strategies operate differently for business risks and WHS risks.

"Workers' compensation insurance is an important governance mechanism. However, the primary duty of care (to ensure the health and safety of workers) will continue to remain with the person conducting the business or undertaking, irrespective of any efforts to engage contractors or to purchase insurance."

In defence of red tape

Inspections (above) by regulatory bodies have produced decreases in penalties incurred by businesses breaching legal obligations, international research has found. The SWA drew on a 2012 Harvard Business study which examined hundreds of work sites that were subject to random regulatory inspections over a ten-year period (1996-2006).

The findings showed compared to firms not subject to random inspection, inspected firms saved an average of $355k in injury claims and compensation paid for lost work over the following four years. 

"Better yet, the same companies saved an average of 26 percent on workers' compensation costs in the four years following an inspection when compared with similar firms that were not randomly inspected."

SWA suggested the reason underpinning these findings was because inspectors would discuss problems and risks with managers as well as potential solutions.

The business payback – the best method to appraise investments in WHS interventions

The report identified and evaluated three methods for businesses to understand the extent of the liability they were undertaking when investing in WHS interventions.

First the insurance method which estimates costs based on workers' compensation insurance information. SWA said: "Many relevant costs are excluded from this analysis, which undermines the benefits of the method's simplicity. Excluded costs include lost productivity, employee turnover and labour costs."

Second, the cost-benefit approach which considers a broader range of costs and benefits and the project or purchase are deemed acceptable where the ratio of cost to benefits is less than one.

"However, when costs are easily identified and measured but the benefits (savings) are not, then the results are biased against investment."

SWA emphasised the relevance of a cost to the WHS issue must be considered when conducting cost-benefit analysis. It said past costs are considered as irrelevant and that WHS costs should focus on "marginal costs" as in "added costs that are incurred specifically for the purpose or pursuit of improved safety".

Finally and preferably, the "payback" method focuses on a project's profitability using cost information to consider time taken for the investment to generate positive cash flows. This method focuses on assessing the investment's impact on cash and ignores differences in the expected life (or timespan) of the project, its profitability and in the time value of money (i.e.  potential earnings from interest over the time span of the project). 

The costs of failing to ensure WHS are widespread

One of the hardest things to estimate is the "failure costs", which cover the direct and indirect costs to a business from failing to ensure WHS. Such costs are diverse and can include:

·         Immediate costs like providing first aid or transporting injured workers to medical care;

·         Compensation costs like increased insurance premiums and payouts;

·         Investigation costs like obtaining specialist legal advice and health and safety training and wages paid to workers who conduct internal investigations and incident reports;

·         Regulatory costs like statutory fines or penalties or court attendance;

·         Remediation costs like lost production and profits due to mandatory closures, unplanned overtime hours, casual labour hire and implementation of new and revised health plans; and

·         Critical second-order costs like reduced ability to attract and retain quality employees, negative publicity and deterioration.

Wide-ranging costs focus shows benefits to labour, capital & productivity

The SWA said focusing on these more holistic approaches to costs will yield greater overall benefits to WHS risk management and the business as a whole.

The report drew on research which noted high quality WHS interventions helped in recruiting and retaining high quality staff. It found having such policies helped to establish it as an "employer of choice".

Additionally, SWA says when considering options for capital investment, investors will scrutinise whether a business seeks to identify and manage WHS risk. "This is grounded first, in the knowledge that companies who manage WHS risk well are likely to have more productive and engaged workforce and less likely to suffer significant failure costs."

Finally the research looked to "excellent workplaces" where WHS acted as a key driver of high performing work environments. SWA said that studies showed this was because of the positive workplace culture fostered.

The SWA said literature termed this process a "virtuous circle" where improving workforce wellbeing encourages worker engagement and motivation and improves productivity, reduces costs and leads to increased profits.

[4]

Editorial details

Editor: Stephanie D'Souza. Email:Stephanie.D'Souza@thomsonreuters.comContact: Phone (02) 8587 7684. Managing Editor: Peter Schwab.