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Working Too Hard? Never Fear, Safety Regulators are Here!

By Sally McCutcheon

4th December 2018

It turns out the fall out from the banking royal commission may be far more wide spread than anyone imagined, with the tentacles now reaching as far as overworked lawyers representing their clients during the commission hearings.

In August 2018 the Victorian safety regulator, WorkSafe Victoria, commenced an investigation into top tier law firm King and Wood Mallesons (“KWM”), following a complaint about employee fatigue. A number of financial institutions involved in the banking royal commission were represented by KWM. It is alleged that during the course of the royal commission, KWM staff were working around the clock, including sleeping in their offices, in order to meet the demands expected of them. KWM has been issued with an Improvement Notice by the safety regulator in relation to the management of employee fatigue in high pressure situations.

The issuing of the Improvement Notice to a law firm is being heralded as a watershed moment and signalling the death knell of the billable hour. While the truth of those statements remains to be seen, it is certainly an interesting development in the application of safety legislation in an office environment.

The legal obligation to manage the risk of employee fatigue has long applied to all industries through various pieces of safety legislation. Until the Improvement Notice being issued to KWM, however, it would be safe to say that some industries have been more cognisant of the risk and more proactive in managing it than others. The transport industry, for example, imposes significant regulation on the number of hours drivers can work and the issue of driver fatigue regularly receives media attention. Other industries, including office based professions, are known for employees working long hours, stuck at their desks until the wee hours with all meals provided by the employer to assist them in working longer.

While it seems unlikely that dramatic change will occur overnight, the issuing of an improvement notice to a law firm related to managing fatigue does reinforce that the need to manage the risk of fatigue applies to all workplaces and sends a signal that it will be enforced by safety regulators if necessary. All businesses should consider fatigue as part of their risk assessment processes and establish appropriate control measures where required.

If you require advice about the obligation to manage fatigue in the workplace or WHS matters generally please do not hesitate to contact our workplace relations team.

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