Most employers would be aware that under the National Employment Standards an employee can work reasonable additional hours. One factor to consider when determining whether additional hours are reasonable is any risk to an employee’s health and safety from working those additional hours. As part of this assessment, an employer must consider the prospect of these additional hours creating a psychosocial hazard and breaching work, health and safety (“WHS”) laws, particularly when it comes to white collar workers. 

A recent enforceable undertaking given by a mining employer to the WHS regulator in NSW highlights how hours of work and an excessive workload may become a psychosocial hazard. 

The enforceable undertaking arose because the NSW regulator conducted an investigation and alleged that the employer had failed to discharge its obligation to, “take reasonably practicable steps to eliminate or minimise the risk of workers being exposed to psychosocial hazards at the mine, and in failing to do so, exposed two workers to a risk of serious injury or death” (the “WHS Duty”).  

What risks were the employee exposed to? 

The first employee (“Employee 1”) was promoted into a Finance Superintendent role and worked in a team that was directed from Switzerland. Employee 1 was seconded to a project to centralise global financial functions in South Africa which also reported to Switzerland. The secondment was full-time and Employee 1 was required to continue performing her Finance Superintendent role, which she claimed resulted in excessive hours being worked.  

As a result, Employee 1 was exposed to “role overload” due to a lack of staff, long working hours, demanding tasks associated with performing her substantive role, time pressures, time zone issues associated with project work, inadequate rest opportunities and inadequate fatigue management.  

Employee 1 made a workers’ compensation claim and was subsequently diagnosed as suffering from a work-related adjustment disorder with anxiety and depression. Around the same time, Employee 1 made a complaint to the NSW regulator about psychosocial safety concerns at the employer. 

The second employee (“Employee 2”) was employed as a Management Accountant who reported directly to Switzerland. Due to a restructuring of the Finance Team, Employee 2 became the only employee in the team and subsequently regularly worked additional hours. Employee 2 raised concerns with her manager that procedures to manage risks were not being followed.  

What can employers learn from the enforceable undertaking? 

In accordance with the enforceable undertaking the employer was required to spend around $1,200,000 on rectification initiatives which included causing a public notice to be published in two prominent newspapers, conduct WHS and culture training, deliver training to equip leaders with mental health awareness skills, organise safety workshops and make donations to community initiatives.   

The difficulty with the WHS Duty lies in establishing the appropriate safeguards or triggers to alert employer systems to when unsafe working hours or practices are being required of workers. This gets more difficult with a white collar workforce that may be outcomes based and may not be keeping time records. It becomes even more difficult with a hybrid workforce where line managers may not be able to physically observe workers.  

Practically, complying with the applicable Code of Practice (links below) for an employer’s state or territory will assist an employer in demonstrating that it has complied with the WHS Duty.  

The Codes of Practice produced by the Commonwealth and the State regulators in NSW, QLD, SA, WA, TAS, ACT, NT and VIC provide practical steps for managing psychosocial hazards.