This is a paper on Risk Management for Lawyers qua Employers I gave on the 30th March 2012, at the Thomson Reuters’ Sydney C.L.E. Conference at the Intercontinental Hotel, Sydney.
LEGAL PROFESSION REGULATION 2005
Regulation 176 of the Legal Profession Regulation 2005 deals with the necessary risk management practices that barristers and solicitors ,as employers, need to develop in relation to general employment law matters dealing with discrimination, harassment ,work safety and Fair Work Act issues.These are matters which all employers need to understand and follow. Even though this paper is under the framework of continuing legal education the object of the regulation is not that we may advise others about these principles but that we follow them ourselves. The primary purpose of the regulation is to manage our practices consistent with these principles,( reg 176(1) (e)). This is so, whether our staff are employed directly by a legal practitioner trading as a sole trader ,partnership , trust, service company or by the entity that manages barristers’ chambers.
Last year I addressed the inaugural, now to be annual, New South Wales Barristers’Clerks Association conference and more recently I addressed a large group of barristers in the Bar Association common room about reg 176 issues with a focus on the new Work, Health and Safety Act 2011. It came into force in this state on the 1st January 2012. That Act replaced the Occupational,Health and Safety Act 2000 (OHS Act) The operation of proceedings under the OHS Act came under close scrutiny by High Court in Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 in which the majority,including a withering single judgment of Justice Heydon , identified some strange and unfair prosecution and Industrial Court procedural practices. The OHS Act also possessed a reverse onus defence which required the defence to prove that it was not ‘reasonably practicable’ to comply with its stringent statutory obligations .It had become a notorious fact that the OHS Act’s provisions and their manner of adjudication led to very few acquittals. The OHS Act, set mandatory requirements on employers, with a significant penalty regime of $550,000 maximum for a first offence of a corporation and $825,000 maximum for a second offence with lesser fines of one tenth that maximum for convicted natural persons.The IRC had trouble finding a reasonable doubt and did impose some very heavy fines although no one was ever imprisoned even though such power existed for previous offenders(see OHS Act s12(c)).
The new Work, Health and Safety Act has dealt with a lot of the concerns of business by the removal of the reverse onus defence. However it has introduced a more severe penalty regime. Now the Prosecutor will be required to prove as part of the charge that it was reasonably practicable for the defendant to comply with the statute’s duties. Presumably this additional requirement of proof upon the prosecution may lead to less proceedings being instituted and perhaps more acquittals. Yet for those cases which lead to a conviction under the new categories of offences the penalties have been dramatically increased. Those categories are as follows,
Category 1 – Reserved for reckless conduct.
a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – $300,000 or 5 years imprisonment or both, or
b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – $600,000 or 5 years imprisonment or both, or
c) In the case of an offence committed by a body corporate – $3,000,000.
Category 2 – Failure to comply with health and safety duty
a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – $150,000, or
b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – $300,000, or
c) In the case of an offence committed by a body corporate – $1,500,000.
Category 3 – Failure to comply with health and safety duty
a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – $50,000, or
b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – $100,000, or
c) In the case of an offence committed by a body corporate – $500,000.
The OHS Act and the new Act impose obligations and responsibilities on employers and those who manage workplaces. The general duty is to be aware of the risks in the workplace, plan how to avoid, eliminate or reduce them and in fact do so. The duty at your workplace is owed to everyone who has business or good reason to be present in your offices or chambers, i.e. you, your staff, the barristers and their staff, solicitors, clients, contractors and other visitors. One very important change is that the proceedings for the more serious category 1 and 2 offences have been removed from the Industrial Court and will be heard in the District Court. One can also envisage that there will be some natural persons imprisoned for serious offences simply because District Court judges are more used to imposing such sentences than their IRC predecessors .One important addition to the legislation is that officers of corporations which can include practice managers, directors ,head of chambers and the barristers’ floor committee members are to exercise the positive requirement of “due diligence”( see s 27 ) .The concept of “Due Diligence” has been pointed out by Australia’s foremost expert in safety law, Michael Tooma ,a partner with Norton Rose, to be;
“ Effective leadership and due diligence therefore requires officers to gain an understanding of the of the nature of the operations of their business(es) and to develop an understanding of the risks associated with those operations.”( 2011) 2 Workplace Review 155 at 157.
Accidents do happen and some of which need to be notified .
S35 of the new Act sets out what is a “notifiable incident”?
In this Act, notifiable incident means:
a) The death of a person, or
b) A serious injury or illness of a person, or
c) A dangerous incident
S36 of the Act identifies what is a “serious injury or illness”?
In this Part, serious injury or illness of a person means an injury or illness requiring the person to have:
a) Immediate treatment as an in-patient in a hospital, or
b) Immediate treatment for:
i) The amputation of any part of his or her body, or
ii) A serious head injury, or
iii) A serious eye injury, or
iv) A serious burn, or
v) The separation of his or her skin from an underlying tissue ((such as degloving or scalping), or
vi) A spinal injury, or
vii) The loss of a bodily function, or
viii) Serious lacerations, or
c) Medical treatment within 48 hours of exposure to a substance,
And includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.
Failure to notify is subject to a fine.
If a serious accident does take place, so as not to have catastrophe piled on disaster you need to have developed a safety system and be able to prove it on the papers.
Once you have notified the WorkCover Authority, an inspector will turn up. Once having examined the factual circumstances of the incident that led to him or her being there and after the interviewing witnesses, you will then be subject to an inquiry dealing with:
i) The existence of a safety committee
ii) Minutes of the safety committee
iii) Safety policies in place
iv) Risk assessment of particular tasks being performed
v) Minutes of meetings with staff regarding safety issues
vi) Induction of staff forms
vii) Authorisations or permits for work to be performed
All this material is useful and in certain circumstances vital in order to show that you had done everything reasonably practicable or exercised due diligence to avoid the happening of the incident/accident or its happening was due to causes beyond your control.
Solicitors’ offices and barristers’ chambers are not as inherently dangerous as other workplaces , such as building sites, factories, coal mines etc. However, it is not beyond human experience to foresee that accidents may happen or that serious accidents are so rare that one has no need to guard against them.
Just from my own experience , without being exhaustive the following activities or hazards in such offices or chambers could cause a notification to be lodged with WorkCover which in turn will cause one of its inspector to turn up in your reception area with his or her notebook and camera.
For these potential hazards and problems you need to have had risk assessment done and have had developed a safe work method and/or policy.
Without any order of seriousness I offer the following as examples,
- Clients or members of the public who are agitated by legal proceedings, see last year’s Arthur Phillip Chambers Parramatta siege
- Electrical hazards
- Trips and falls in common areas
- Building work, eg. Renovations to individual rooms or common areas ,within and outside normal hours
- Moving furniture and fittings.
- Checking that tradesmen have proper qualifications and permits
- Approving plans of work to be performed by tradesmen
- Trolleys, and the pushing of a few trolleys together e.g. octopus straps a real problem
- Bullying or harassing behaviour and generally looking after the mental health of staff including other solicitors and barristers
- Induction ,care and control of new staff and in particular junior legal and administrative staff .
- Social functions, particularly the one’s held at chambers eg. too much alcohol
- Dangers or risks of working late and after hours
- Performing tasks outside one’s experience or skill
- The allocation of work for which young lawyers are not ready or responsible
These are just a few examples, no doubt many here could add to that list.Some of these examples,such as the careful control of social functions, could also present as difficulties under other legislation dealing with discrimination and harassment.
What can be immediately done ?
In order to protect oneself and your practices from the happening of an incident and consequential prosecution the following ought occur as a minimum.
(1)A risk assessment of your firm or barristers’ chambers in general. Perhaps expert consultants be engaged by your firm or chambers. Perhaps both the Law Society and Bar Association should at the very least engage such experts to formulate a generic study of the risks of legal practice and circulate those findings with their members? A code of safe work practice might be formulated for the legal profession
(2)Safety policies be developed , put in writing and circulated and regularly reviewed.
(3)An office or chambers safety committee be formed which meets at least four times a year and keeps minutes of the meetings.It could meet at the same time as the partnership or floor committee perhaps as a regular agenda item.
(4) A designated person be named to be the Safety representative in same way fire wardens are appointed.
The regulation deals with a range of general employment matters I have focussed on the new Work,Health and Safety Act because its topical and may have serious personal, reputational and financial consequences. Compliance with regulation 176 is done in continuing legal education by dealing with a component of the general employment related matters found in r176 (1) (a) to (d).I have dealt with (c) that is occupational health and safety law.
In parting I wish just to say a few words about the Fair Work Act as it might touch upon your employees . Notwithstanding the demise of the politically flawed WorkChoices legislation aspects of it have continued under the Fair Work Act . That Act in New South Wales applies to all private employers ,including corporations,partnerships and natural persons.The Act has minimum National Employment Standards (NES) of pay and conditions which must be paid by to all employees.In effect all employees who might have wages around the level of the NES are regulated by the Act. Some are regulated by what are called Modern Awards . Leaving the some chief executive officers, professional staff and barristers’ clerks to one side all other employees in the legal industry are regulated either by the Clerks-Private Sector Award 2010 or the Legal Services Award 2010. Those awards provide minimum pay and conditions. Not to pay staff in accordance with them not only can lead to a claim for underpayment but also a claim for penalties for breach of the modern award and /or the Act. The well resourced Fair Work Ombudsman ( FWO) is particularly active and vigilant in maintaining award conditions and obtaining back money and significant penalties in the federal courts. Not only can penalties be imposed on the employer but also under section 550 of the Fair Work Act those involved directly or indirectly by act or omission in the contravention of a civil remedy provision.That is if the employer of an underpaid receptionist is the chamber’s corporate vehicle each member of the chambers could be caught by section 550.
Like at the Clerks’ conference and the Bar association lecture I hope I haven’t ruined your day but these are important, serious matters to consider and to be on guard against.One just can’t leave these things to the office manger ,the managing partner, the clerk or head of chambers to do. Everyone has a positive duty to inform themselves if minimum safety and employment standards are being met.This is not just to avoid the unwanted attention of a WorkCover or FWO inspector having cause to pry into our affairs but also we must be seen to be fully compliant with our obligations as employers and lawyers. The cub reporters from the Sydney Morning Herald and indeed the Daily Telegraph demand it of us.