By Graeme Howatson
An unusual event that seems to have gone largely unreported in the media is the issuing of an improvement notice in respect of the Melbourne office of the top tier national law firm King & Wood Mallesons.
Section 21 of the Occupational Health and Safety Act 2004 (Vic) requires employers to maintain systems of work that are, so far as is reasonably practicable, safe and without risks to employees’ health. If an inspector under the Act believes that a person is contravening a provision of the Act, the inspector may issue an improvement notice requiring the person to remedy the contravention, or the matters or activities causing the contravention (s 111). Failure to comply with an improvement notice is an offence. (Victoria, along with Western Australia, has not adopted the model Work Health and Safety Act which is in force in all other states and territories. The model Act contains similar provisions – see s 19 and s 191 of the Work Health and Safety Act 2011 (Qld), for example.)
According to a report in the Australian Financial Review on 26 October 2018 and an article in the industry publication, Lawyers Weekly, on 12 October 2018, the improvement notice is “in relation to the management of employee fatigue in high pressure situations.” The notice is in response to a complaint about employee fatigue as a result of the hours worked for clients who have retained KWM to handle the large volume of work flowing from the banking royal commission.
The Lawyers Weekly article reports that KWM has said it will be working with WorkSafe Victoria to ensure they are satisfied that their systems are compliant, and it will formally respond to the notice within the required timeframe. The firm has sought feedback from lawyers who have been involved in work on the banking royal commission and is “looking at what else we can do to support our people working in high pressure situations.”
Fatigue management a growing issue
While the issuance of an improvement notice to blue collar employers is a relatively common occurrence, issuing a notice to a professional services employer is less common.
Perhaps this is changing – the Financial Review article reports that:
“Central Queensland University sleep expert Professor Drew Dawson says over the last 12 months regulators have been more likely to issue fatigue improvement notices to professional service firms, from merchant banking to accountants.
At one merchant bank, the regulator intervened after staff worked 106-hour weeks, or about 15 hours a day, seven days a week. At the accounting firm, a tax accountant died after driving back home after working long hours.
‘These actions by regulators are part of a cultural shift,’ Dawson says. ‘There’s no doubt fatigue is more of an issue now than it was 10 to 15 years ago.’”
Traditionally, the culture of professional services businesses is that staff work whatever hours are required to get the job done. In law firms, working long hours is seen as being necessary if a lawyer wishes to become a partner. This raises the possibility of a conflict with the employers’ duty to provide a safe system of work.
A work health and safety compliance system should be a part of the compliance management system of all businesses – blue or white collar. Paragraph 4.6 of AS/ISO 19600:2015 Compliance management systems — Guidelines requires an organisation to identify and evaluate its compliance risks, which obviously includes the risks to the health and safety of employees posed by fatigue.
Time for change?
In the light of greater focus on fatigue in white collar occupations, now might be the time for employers to think about whether or not they are meeting their obligations under work health and safety legislation. Issues that could be considered include:
- Many employees in professional services firms have a budget. How many hours a week will an employee have to work to meet their budget?
- What is the culture of the firm – is spending excessive hours in the office or regularly forgoing personal commitments seen as essential to being a “good employee”? Is there a disconnect between policies and what happens in practice – for example, a firm may have a policy against the excessive accumulation of annual leave, but is the policy enforced?
- In annual performance reviews of partners or managers, is appropriate weight given to their management of the staff under their control, or are they mainly judged on whether or not they and their staff have met budget? If there is excessive staff turnover in a partner or manager’s team, are steps taken to investigate the reasons for this turnover?
- Who can employee appeal to (apart from their manager) if they believe that their workload is excessive, or if they have any other workplace issue? Does the firm’s culture support employees who raise workplace issues? Is there a process by which employees can make anonymous complaints?
For further information on compliance with the model Work Health and Safety Act, see the CCH publication, Australian Legal Compliance – Making it Work.