Innovative Technologies - Volume 10, 2008 A Change for the Better? Innovation, Workplace Change and Employers' Liability Robert Guthrie and Anna Bunn School of Business Law and Taxation Curtin University of Technology Abstract Innovation is part of the Rudd Federal Labor Government's broad productivity agenda. There is an explicit focus on innovation at the Council of Australian Governments meetings. In addition, an innovation review is being conducted throughout 2008 to rationalise innovation programs around Australia. While the innovation agendas of Government, business and industry are focused on increased productivity, attracting investment and creativity, this push towards innovation often ignores change management issues which impact on worker health and may add to the hidden costs of change. Innovation has implications for employers when new technologies expose them to a range of legal obligations and liabilities. This paper broadly canvasses some of the issues relating to employers' liabilities and innovation. Introduction Innovation has been defined as the bringing in of new methods or ideas, and the making of changes.1 Baer and Frese recently observed that `[i]nnovation has become the industrial religion of the late 20th century. Business sees innovation as the key to increasing profits and market share. Governments automatically reach for it when trying to fix the economy'.2 Although Baer and Frese were referring to innovations aimed at `enhancing organisational production and service procedures and processes' (so-called `process innovation' or `organisational innovation'), the same may be said of technological innovation. Technology has been defined as `a hybrid concept that includes tools and machines on the one hand and production processes and procedures on the other'.3 As noted by Harrison and Legendre, `[t]he introduction of new technologies frequently goes hand in hand with organisational innovations'.4 Process or organisational change may be manifested by practices such as Business Process Reengineering, Total Quality Management, Lean Production, Simultaneous Engineering or Just in Time Production.5 Organisational change is also expressed by changing work practices, such as the introduction of more flexible working arrangements like job-sharing and work from home arrangements. The widespread use of desktop technology and the internet is an example of technological change with broad impact on the business world, and across the entire spectrum of business organisations and 1 2 The Australian Concise Oxford Dictionary (4th edn, 2003). M Baer & M Frese, `Innovation is Not Enough: Climates for 3 D Harrisson & C Legendre, `Technological Innovations, Initiative and Psychological Safety, Process Innovations, and Firm Performance' (2003) 23 Journal of Organizational Behaviour 45, 45. Organisational Change and Workplace Accident Prevention' (2003) 41 Safety Science 319, 320. 4 5 Ibid. Baer & Frese, above n 2, 45. 3 Legal Issues in Business industries. Technology continues to affect production processes, from the automation of production lines to, more recently, the impact that nanotechnology will have on the manufacture of a range of goods, from food items to computers.6 increases in insurance premiums when illness or injury is work-related. Innovation is often viewed by organisations as something positive ­ a way to increase productivity and profitability. Process innovations are `assumed to bring multiple benefits to an organisation and help an organisation to achieve competitive advantage'.7 Azkenazy, referring to organisational innovation in terms of the adoption of `lean production' or `flexible' and `high-performance' workplace practices, states that `a mass of evidence shows that these new work practices dramatically improve financial profits, productivity and quality'.8 The increased use of technology also involves occupational health and safety issues. Technology has tended to increase the pace of work and the monitoring of worker performance (for example, through electronic surveillance systems which measure employee output and turnaround time). Increased customer expectations attendant on the speed of communication may involve a corresponding increase in worker stress and disruption to the work-life balance.10 The use of keyboard facilities and the fact that computers and internet access make working from home more viable may have an adverse effect on employee physiology due to static postures and sedentary work and, as a result, expose employers to occupational health and safety claims. Yet there is growing evidence that organisational changes may give rise to an increase in the rates of occupational illnesses. Landsbergis, for example, refers to the effects that organisational changes can have on stress-related health outcomes, such as cardiovascular disease, musculoskeletal disorders and psychological disorders.9 Such effects have an impact not only on the worker but on the business employing that worker. Obvious effects on business are lost productivity and replacement costs due to worker absence for illness and the costs of recruiting and training new workers to replace those resigning due to stress. Less obvious effects are the indirect costs of workplace stress and absenteeism on organisational morale, and the cost to employers of workers' compensation claims and Emerging technologies, such as nanotechnology, present risks which are inherent in the unknown. While the risks may not become apparent until some unspecified future point, this does not absolve employers from legal responsibility for risks which, although not known precisely, perhaps could be anticipated and for which provision could be made. Indeed, researchers have recently announced that `long, thin, carbon nanotubes showed the same effects as long, thin asbestos fibres' when injected into mice.11 The connection between asbestos and nanotechnology can be made in terms of possible health effects as well as in terms of an employer's liability for any such effects. This article looks at how, in relation to liability issues, the ongoing tragedy of asbestos may provide a reference point for employers in relation to potential workplace 6 See, for example, Applications and Products: Putting Technology to Use National Nanotechnology Initiative at 22 April 2008. 7 8 Baer & Frese, above n 2, 46. P Askenazy, `Innovative Workplace Practices and 10 See, for example, A Johnston & M Cheng, `Electronic Occupational Injuries and Illnesses in the United States' (2001) 22(4) Economic and Industrial Democracy 485, 487. the Safety and Health of Working People: A Commentary' (2003) 45(1) Journal of Environmental Medicine 61, 65. 9 P A Landsbergis, `The Changing Organization of Work and Surveillance in the Workplace: Concerns for Employees and Challenges for Privacy Advocates' (Paper presented at the International Conference on Personal Data Protection, Seoul, Korea, 28 November 2002) 6, at 14 May 2008. Australian (Perth, Western Australia), 22 May 2008, 18. 11 D Guest, `Fears Over Wonder Nanotubes', The West 4 Innovative Technologies - Volume 10, 2008 risks. This article also examines the liability of employers in general to pay damages and/or compensation in respect of a worker's work-related injury or disease. The focus is on work stress and stressrelated disorders, as well as repetitive strain injuries arising from work. Ways in which employers may mitigate their liability by practical measures, such as ensuring a work-life balance and the development of and compliance with standards, are also discussed. Employers' liability for worker injury and illness Workers' compensation legislation in all Australian states and territories12 makes employers liable to pay compensation to a worker for injury by an accident arising out of or in the course of the worker's employment, as well as work-related disease. Workers' compensation legislation establishes a `no fault' system which entitles workers to compensation without having to establish negligence on the part of the employer or others. For this reason all Australian employers are required to maintain compulsory workers' compensation insurance from an approved insurer for all workers employed by them.13 pay damages (as distinct from statutory workers' compensation) to the employee for the consequences of the damage.15 Establishing the liability or otherwise of an employer requires proof that the employer fell below the standard of care required by the law (often referred to as the standard of the `reasonable employer'). The potential scope of employer liability is wide and the potential cost of damages awards in favour of workers can be significant. Importantly, employers can insure against such losses. However, more recently several state and territory governments have imposed increasing obligations upon employers and directors of companies under occupational health and safety statutes which may be used to prosecute those parties who fall below these statutory standards. Employers and directors cannot insure against these obligations.16 The common law duty of care means that employers have common law (and statutory) obligations to be vigilant in relation to new work practices which may have an impact on worker health. Vigilance on the part of employers dealing with new or emerging technologies or using new materials means making decisions and designing policies and procedures based on what is currently known about the technology, and attempting to act in a manner to prevent harm. They must also attempt to anticipate risks that may arise in 15 A worker in Western Australia who suffers an injury and Aside from these and other industry-specific statutory provisions,14 the common law imposes on employers a duty to protect employees from personal injury and other kinds of harm. An employer who breaches that duty, resulting in injury to the worker, will be liable to 12 For example, Workers' Compensation and Rehabilitation Act 1981 (WA). (Vic), Workers Rehabilitation and Compensation Act 1984 (SA), Workers' Compensation and Injury Management Act 1981 (WA), Work Health Act (NT), Workers' Compensation Act 1987 (NSW), Workers Rehabilitation and Compensation Act 1998 (Tas), Workers' Compensation and Rehabilitation Act 2003 (Qld), Workers' Compensation Act 1951 (ACT). 1998 (WA), Mines Safety and Inspection Act 1994 (WA) and occupational safety legislation in all jurisdictions: Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), Occupational Health and Safety Act 1989 (ACT), Occupational Health and Safety Act 2000 (NSW), Work Health Act 1986 (NT), Workplace Health and Safety Act 1995 (Qld), Occupational Health, Safety and Welfare Act 1986 (SA), Workplace Health and Safety Act 1995 (Tas), Occupational Health and Safety Act 2004 (Vic), Occupational Safety and Health Act 1984 (WA). 13 The relevant legislation is Accident Compensation Act 1985 14 See, for example, in Western Australia, Rail Safety Act wishes to bring a common law claim (i.e. a claim not made in pursuance of a statutory provision) will need to satisfy the District Court that the injury is serious ­ in other words that there is permanent impairment of the body as a whole greater than 15%. H Ketley (ed), The WA Law Handbook (5th ed, 2005) 424. by Managers: The Personal Liability of Company Officers for Death Flowing from Company Workplace Safety Breach' (2006) 9 Flinders Journal of Law Reform 79. The ACT Crimes Act 1900 has been amended with the effect that a company can be convicted of manslaughter along with significant penalties and even imprisonment for directors and senior officers of the company. A Hall, A Johnstone & A Ridgway, `Reflections on Reforms: Developing Criminal Accountability for Industrial Deaths' (Working Paper 26, National Research Centre for Occupational Health and Safety, 2004) 24; M Goode, `Corporate criminal liability' (Paper presented at the Australian Institute of Criminology Conference, Hobart, 1-3 September 1993) 4, at 30 October 2007. 16 For example, see the discussion in N Foster `Manslaughter 5 Legal Issues in Business the future. In this respect the mining and use of asbestos products in Australia and worldwide provides a salutary caution. fibres from the support matrices of building materials is an additional concern as this now affects the broader community.21 Asbestos and workplace health As a building product asbestos is almost indestructible and has featured heavily in housing materials, installation and roofing in Australia and worldwide. It has been used in motor vehicle and railway brake linings, insulation and pipe lagging on ships. Given its widespread use in the past, the amount of asbestos currently in place in commercial and residential buildings may be very high in Australia.17 Because asbestos products were water- and heat-resistant and easy to use, they were widely adopted as building products. Many thousands of workers were engaged in asbestos mining around Australia (in Western Australia the mining of asbestos took place principally in the town of Wittenoom). The extraction of asbestos was via below-ground mines which involved considerable manual handling of the raw material.18 In many cases the miners who handled asbestos and those who used asbestos products contracted a range of fatal asbestosrelated diseases including cancers of the respiratory tract, lung cancer, pleural and peritoneal mesotheliomas and more remote cancers.19 Thousands of workers have died as a consequence of exposure to asbestos. The rates of fatality are increasing and the mining of asbestos stands as a beacon of occupational safety misadventure in Australia.20 The full effects of asbestos-related diseases were only felt in the latter part of the 20th and early part of the 21st century. The release of asbestos 17 Australian Safety and Compensation Council, A Literature Asbestos mining and use of asbestos products ceased in Australia in the 1980s. However, as a consequence of the poor occupational health and safety procedures adopted for the extraction of asbestos during the period of mining, a host of legal actions were launched against mine owners and operators in the last two decades. The courts recognised that the owners of mines knew and understood the dangers of asbestos mining, and they recklessly continued to put workers at risk. Substantial awards of damages were ordered in favour of workers affected by asbestos-related illness together with (in some cases) punitive damages.22 In 1985 an Australian worker succeeded for the first time in bringing a negligence claim against an employer for asbestos-related disease, in that case mesothelioma,23 demonstrating `that such cases could be won, even though the exposures which caused the disease had occurred 30-40 years earlier'.24 In common with other claims for asbestos-related mesothelioma,25 the exposure to asbestos which caused the worker's mesothelioma had occurred many years before the commencement of the legal action, at a time when 21 6. paid by an employer to `punish' the reckless behaviour of employers. A host of cases have now established employer liability for asbestos mining and asbestos use, for example, Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia & Ors [2006] WASC 270, Hendrika Misiani (As Executor of the Will of Alfredo Antonio Misiani (Dec)) v Welshpool Engineering Pty Ltd (In Liq) & Anor [2003] WASC 263, McGilvray v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2001] WASC 345. of Victoria, Gobbo J, 1985). Aspects of Mesothelioma in Australia' in B W S Robinson & A P Chahinian (eds), Mesothelioma (2002) 253. Australia: Past Trends and Future Directions' (Paper presented at the Global Asbestos Congress 2004, Tokyo, Japan, 19-21 November 2004) 3, at 14 May 2008. 22 23 Pilmer v McPherson's Limited (unreported, Supreme Court 24 J Gordon, `Doctors in the Courtroom: Medico-Legal 25 See, for example, T Hammond `Asbestos Litigation in Australian Safety and Compensation Council, above n 20, Punitive damages arise where a court orders money to be Review of Australian and Overseas Studies on the Release of Airborne Asbestos Fibres from Building Material as a result of Weathering and/or Corrosion (2008) 6, . chrysotile, amphibole, crocidilite and amosite. 18 Ibid 5. Raw asbestos includes the following types: 19 20 Ibid 8. Australian Safety and Compensation Council, Mesothelioma in Australia (2008) 4 . 6 Innovative Technologies - Volume 10, 2008 asbestos exposure was not known to cause the particular form of cancer which ultimately caused the worker's death.26 However, the fact that the employer knew that exposure to raw asbestos could cause asbestosis (which is not fatal but which is extremely debilitating) and related illness was enough to establish the foreseeability of some kind of harm, `as the employer was or should have been aware of a risk of injury in the 1940s if the employee was exposed to asbestos'.27 Where some form of harm is foreseeable, the employer is liable for all related harm or injury so long as that harm or injury is not too far-fetched or fanciful.28 the knowledge available at the time of the worker's exposure to harm. Once the ability to foresee harm is established, it is incumbent upon an employer to take reasonable care to prevent the harm occurring. How much care is reasonable will depend on a number of factors such as the probability of the harm occurring,29 the seriousness of the consequences30 and the burden (in terms of cost, practicality and so forth) of avoiding the harm.31 What is a reasonable response will be determined largely by 26 The documentation of a link between such exposure and With respect to innovation and the use of new technology and products in the current context, the limited research on dangers and risks coupled with the very novelty of the technology or process means that the risk of long-term exposure may not yet be documented at all. This will be a relevant factor in determining the liability of an employer for any harm done to a worker. Nevertheless, if research guidelines and industry standards do exist in relation to a particular product, process or technology, employers will be presumed to have knowledge of this information. Employers who choose to ignore advice on potential risks and precautionary measures that may be adopted in response to potential risks to workers do so at their peril. Conversely, following industry standards and adopting precautionary measures may assist employers to show that they have taken reasonable care (and thus did not breach a duty of care to their employees), although this would not by itself guarantee that they are immune from legal action. mesothelioma was made in the 1960s with the publication of the paper by J C Wagner, C A Sleggs & Paul Marchand, `Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province' (1960) 17 British Journal of Industrial Medicine 260. 27 28 T Hammond, above n 25, 262. This is assuming that the employee can establish the other Innovation and nanotechnology Nanotechnology has been defined as follows: elements of a negligence claim, including that the employer failed to take reasonable care to prevent the harm. The general legal position in Australia today is somewhat different in that the common law of negligence is affected by the Civil Liability Acts. In Western Australia the Civil Liability Act 2002 (WA) provides that a person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless the risk is one `of which the person knew or ought to have known' (section 5B1(1)(a)) and the `risk is not insignificant' (section 5B1(1)(b)). However, the Civil Liability Act 2002 (WA) does not apply to certain kinds of claims for damages and they include damages relating to personal injury relating to the inhalation of asbestos (section 3A(1), Item 6) and damages to which the Workers' Compensation and Injury Management Act 1981 Part IV Division 2 applies (Civil Liability Act 2002 (WA) section 3A(1), Item 3). In effect, this means that this Act will not apply to most claims arising from employment, whether under the workers' compensation legislation or the common law. 29 30 See, for example, Bolton v Stone [1951] AC 850. See, for example, Paris v Stepney Borough Council [1951] Nanoscience involves research to discover new behaviors and properties of materials with dimensions at the nanoscale, which ranges roughly from 1 to 100 nanometers (nm). Nanotechnology is the way that discoveries made at the nanoscale are put to work. Nanotechnology is more than throwing together a batch of nanoscale materials--it requires the ability to manipulate and control those materials in a useful way.32 Nanotechnology is used in a wide range of areas. Manufactured nanoparticles, nano-emulsions and nanocapsules are now found in agricultural chemicals, 32 National Nanotechnology Initiative, `Government AC 367. [1998] 192 CLR 431. 31 See, for example, Romeo v Conservation Commission (NT) Departments and Agencies' at 19 May 2008. 7 Legal Issues in Business processed foods, food packaging and food contact materials including food storage containers, cutlery and chopping boards. Friends of the Earth (FOE) have identified 104 of these products, which are on sale internationally. However, given that many food manufacturers may be unwilling to advertise the nanomaterials content of their products, FOE believe this to be a small fraction of the total number of products available worldwide.33 Nanotechnology is being used to make paintwork last longer, to make computers more efficient, in the production of a range of orthopedic applications (including material similar to the human bone) and in electricity generation, cosmetics and sunscreens.34 recommends a number of `interim' measures which should be adopted in the workplace until more is known about the exact risks posed by nanomaterials and nanotechnology as a whole. The interim measures include engineering control techniques and the implementation of risk management systems. Similar studies have now been carried out in Australia, with similar concerns and cautions being expressed.37 The United States National Institute for Occupational Safety and Health (NIOSH) is a federal agency responsible for conducting research and making recommendations to prevent work-related injury, illness and death. A recent report from NIOSH notes that: Because of their small size and large surface area, engineered nanoparticles may have chemical, physical, and biological properties distinctly different from larger particles of similar chemical composition. Those properties may include the ability to reach the gas exchange regions of the lung, travel from the lung throughout the body, penetrate dermal barriers, cross cell membranes, and interact at the molecular level.35 Despite the fact that there has not yet been any scientific link made between nanoparticles and harm to humans, there is recent research to suggest that nanotubes may behave like asbestos fibres in the human body.36 Given the potential risks to human health, the NIOSH report In so far as recommendations from respected sources do exist, employers using nanotechnology and wishing to avoid legal action in the future would be prudent to follow available guidelines in order to be in the best position to defend possible future claims for injury to health made by workers at some unspecified future time. The Australian Council of Trade Unions (ACTU) has expressed concerns about the potential harm from the use of ultra-fine nanoparticles.38 The ACTU has urged the adoption of the `precautionary principle'39 already integrated into many international conventions, which has been described as follows: `When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically'.40 Specifically, the Principles 37 Australian Safety and Compensation Council, A Review of the Potential Occupational Health and Safety Implications of Nanotechnology (2006) < http://www.ascc.gov.au/NR/rdonlyres/AC17BA49-8BA143B8-BC08219DE53781E6/0/ASCCReviewOHSImplicationsNanotechno logy2006.pdf>. Commercialise Nanotechnology Leaves Workers' Occupational Health on the Starting Block' (Press Release, 19 September 2007) at 6 May 2008. Precautionary Principle (1999). Nanomaterials (2007) . Also `Wingspread Statement on the Precautionary Principle', January 1998; N Myers, A Rabe & K Silberman, Louisville Charter for Safer Chemicals: Background paper for reform no. 4 (2005) at 6 May 2008. 38 Australian Council of Trade Unions, `The Race to 39 R Harding & E Fisher (eds), Perspectives on the 40 See Principles for the Oversight of Nanotechnologies and 33 Friends of the Earth, Out of the Laboratory and on to Our Plates (Executive Summary) (2008) at 6 May 2008. Small Steps to the Future' (2007) 44(2) International Association of Industrial Accident Boards Journal 137, 148. Towards Safe Nanotechnology in the Future (2007) < http://www.cdc.gov/niosh/docs/2007-123/pdfs/2007-123.pdf> iv (Executive Summary). 34 F Dolinar & D Frearn-Desrosiers, `Nanotechnology: Many 35 NIOSH Nanotechnology Research Centre, Progress 36 D Guest, above n 11. 8 Innovative Technologies - Volume 10, 2008 for the Oversight of Nanotechnologies and Nanomaterials note the following: Existing research on the impacts of nanomaterials on human health and the environment have raised red flags that warrant precautionary action and further study. Because the potential toxicity of nanoscale materials cannot be reliably predicted from their toxicity profile in bulk (non-nano) form, regulations must require rigorous, accurate and comprehensive pre-market safety assessments that take the unique underpinned by a precautionary approach are critical for new technological developments where long-term health and environmental impacts are unknown, inadequately studied, and/or unpredictable. Lack of data or evidence of specific harm cannot substitute for a reasonable certainty of safety.41 What has been learned from the tragedy of asbestos mining and resultant litigation is that employers using emergent technology must constantly monitor the `industry' and keep up with or ahead of current standards within it. This is consistent with the precautionary principle advocated by the ACTU and a wide range of community groups. Based on this principle, employers should document exactly how nanotechnology is being used. They should monitor and respond to research and recommendations which includes making, reviewing, updating and implementing policies and procedures for safe workplace practices. These actions alone do not guarantee protection from future claims in negligence but may assist in proving that an employer did take reasonable care to respond to foreseeable risks and may form part of an employer defence to a claim from a worker for a harm arising out of new technologies. properties into of consideration nanomaterials. Regulations work for many keyboard operators. They also gave rise to several debilitating conditions which affect the upper arms, wrists and shoulders, and are often collectively described as repetitive strain injuries (RSI).42 RSI also commonly affects assembly line workers and those engaged in packaging and processing industries, to name just a few of the many occupations where repetitive work can give rise to physical injury.43 Not all workers engaged in repetitive work develop RSI but during the mid-1980s and early 1990s a wave of workplace-related repetitive injuries became a focus of concern for those engaged in occupational health and safety. While there is considerable dispute as to the causes of repetitive strain, it is clear that they arise as a combination of repetitive work and poor ergonomic workplace design. Some medical specialists who examined workers attributed the condition to emotional stress (which is manifested as physical pain), finding no objective signs of injury, while others believe that it is related to poor posture and inadequate break-time from activity. Either way, the costs of change through the 44 42 RSI is not a universal label. It is used in Australia and New Zealand as well as Occupational Overuse Syndrome, which is said to be a subset of Musculoskeletal Disorders. In Europe, the term Work Related Musculoskeletal Disorders is used. Repetitive Motion Trauma is adopted in the USA where the condition is also referred to as Cumulative Trauma Disorder. In Japan and Scandinavia it is known as Occupational Cervicobrachial Disorders. Medical Journal of Australia 616. Workplace' (1986) 145 The Medical Journal of Australia 323 who considered that RSI was not an organic condition. See also R Spillane & L Deves, `RSI: Pain, Pretence or Patienthood?' (1987) 29 Journal of Industrial Relations 41; R Spillane & LA Deves, `Psychosocial Correlates of RSI Reporting' (1988) 4(1) Journal of Occupational Health and Safety 21; G Bammer, `The arguments about RSI: An Examination' (1988) 12(3) Community Health News, 348; G Bammer, `Occupational Disease and Social Struggle: The case of Work-related Neck and Upper Limb disorders' (Working Paper No. 20, National Centre for Epidemiology and Population Health, 1990); G Bammer, `Repetition Strain Injury in Australia: Medical Knowledge and Social Movement' (Working Paper No. 19, National Centre for Epidemiology and Population Health, 1990); G Bammer & B Martin, `The arguments about RSI: An Examination' (1988) XII(3) Community Health Studies 348; C D Nolan, B M Nolan & D K Faithful, `Occupational Repetition Strain 43 W E Stone, `Repetitive strain injuries' (1983) 2 The 44 Note the controversial views in Y Lucire, `Neurosis in the Repetitive strain injuries In the latter part of the 20th century, innovative technologies were introduced into the workplace to increase productivity. In the early 1980s, electric typewriters and later computers increased the pace of 41 Ibid 2. 9 Legal Issues in Business introduction of personal computers and other desktop technology during the 1980s was significant in terms of workers' compensation costs alone, with the concomitant rise in workers' compensation insurance premiums for employers. At the time of this `outbreak' Kiesler and Finholt asserted that `a computer-health epidemic known as repetitive strain injury (RSI) is rampant in Australia and threatens to overwhelm the workers' compensation system'.45 Since the 1980s the incidence of the rate of RSI in Australia has not moderated.46 This is despite increased awareness of the work hazards arising from keyboard activities undertaken on a continuous basis, development of ergonomic furniture and exercises, task rotation, work breaks and a greater appreciation of the medical condition by the medical profession.47 As noted above, no-fault workers' compensation laws allow workers to make a claim for work injury or disease provided they can show the causal connection between their medical condition and employment. The change in work patterns and innovations in technology mean that an increasing number of workers are working away from the office and working remotely, or at home. This fact does not preclude a claim under workers' compensation legislation, as the worker only needs to establish that the injury occurred `in the course of employment'. The increased incidence of workers working remotely or at home becomes more of an issue when the worker is bringing an action for RSI, or indeed any other injury, under the common law of negligence.48 When an employee is working in a workspace that is controlled by the employer, it is reasonable to expect employers to pay heed to health and safety aspects relating to the setup of that workspace. It is indisputable that employers who allow employees to work from home owe a duty to take reasonable care to prevent those employees from suffering injury during their employment. What amounts to reasonable care in these circumstances is more problematic. Would the employer discharge their duty through recommendations on workplace design and other safe working practices, or should the employer be more proactive, for example, training employees or even assessing their home-based workstations? This will depend on the nature of the work, the extent to which employer allows or encourages such work, and the amount of time workers spend working at home. At the least, employers should develop clear guidelines relating to safe work practices and evaluate the extent to which they should involve themselves in the practices adopted by workers working away from the `office'. Injuries: Guidelines for Diagnosis and Management' (1984) 146(6) The Medical Journal of Australia 329; E Willis, `RSI as a Social Process' (1986) X(2) Community Health Studies 210. American Psychologist 1004. related Musculoskeletal Disease in Australia (2006) 22 at 7 May 2008; OHS Reps@Work, International RSI Day 2008 (2008) at 6 May 2008. Green, `Software for Preventing Repetition Strain Injuries' at 6 May 2008. 45 S Kiesler & T Finholt, `The mystery of RSI' (1988) 43(12) 46 See Australian Safety and Compensation Council, Work- 47 See, for example, the range of treatments referred to in N Work-related stress and psychiatric harm In addition to the emergence of RSI as a work health issue, the late 1980s and early 1990s saw a statistical rise in stress-related conditions arising from work.49 The reasons for this increase are likely to be multicausal, relating to changes in work patterns, the move 48 In relation to any negligence claims for RSI the foundations for such a claim will involve the worker proving that the employer breached its duty of care to the worker, thereby causing the injury in question. This is a much more difficult issue of proof given the difficulty workers have in establishing precisely how their condition has arisen (as noted, the medical profession has been divided on the etiology of the condition). Compensation Council, Compendium of Workers' Compensation Statistics Australia 2004-2005 (2007) at 19 May 2008, in particular, the feature article on Mental Stress at 71. 49 The most current data is available via Australian Safety and 10 Innovative Technologies - Volume 10, 2008 towards individual work contracts, reduced union influence in the workplace, flexible hours of work causing increases in workload, and continued change in the workplace due to innovation and technology. McGrath has been credited with defining stress as a (perceived) substantial imbalance between demand and response capability, under conditions where failure to meet demand has important (perceived) consequences.50 Mendelson, in a series of articles, quoted Cox who reported that occupational stress exists in the person's recognition of their inability to cope with work demands and in their subsequent experience of discomfort.51 As noted in the Introduction, innovations in technology and organisational processes are one cause of increased worker stress. Harrison and Legendre studied seven industrial firms and reported that technological changes coincided with organisational changes that eliminated individual work. For example, `the various steps in the production processes were more tightly integrated, which contributed to a significant decrease in individual work autonomy and an increase in workplace pressures'.52 The Harrison and Legendre study focused on change within production processes but there is also a relationship between stress-related, workplace pressures arising from the use of technology in general and, in particular, advances in the use of telecommunications, computers and surveillance technology. 53 other claims and the modalities for treatment are haphazard and unsystematic.54 Staten and Umbeck55 make some useful distinctions including three categories of stress claims. The first category is Mental­ Physical claims which occur where a non-physical stimulus induces a physical response, for example, a worker witnessing frightening events and suffering a heart attack, stress-provoked ulcers, arteriosclerosis or a stroke. Secondly, Physical­Mental cases emerge when mental disorders follow from a physical injury. Examples of Physical­Mental claims include conversion hysteria, post-accident depression and suicide related to chronic pain syndrome or depression.56 Thirdly, Mental­Mental claims can arise from a non-physical event (such as dismissal, transfer or discipline) and can trigger a psychological reaction that incapacitates a worker. The process may be gradual (for example, the disciplinary/dismissal situation) or sudden (for example, when the worker witnesses an explosion and remains physically uninjured but suffers some neurotic symptoms). In these cases, the worker has no `physical' injury but is nevertheless incapacitated. All these forms of stress-related claims may be compensable, though differing levels of medical proof may be required. Not surprisingly, the Mental­Mental claims present the greatest challenge in terms of proof of a causal link between the worker's condition and their work circumstances. So-called stress claims make up about 5% of all workers' compensation claims as an average across Australia, but the cost of these claims is twice that of In order to receive statutory workers' compensation for stress and stress-related injury, Australian workers' 54 Australian Safety and Compensation Commission, above n 50 J C de Carteret, `Occupational Stress Claims: Effects on 49. Disability: Incentive Problems' in J D Worrall (ed), Safety and the Work Force (1983) 103. Thomas Corr (Deceased)) v Ibc Vehicles Limited [2008] UKHL 13 where it was held that an employer, whose negligence led to an accident in which a worker sustained serious facial injury, was also liable to pay damages to the estate of the deceased worker in respect of losses attributable to that worker's death by suicide six years later. This was because the accident led to depression, which led in turn to the suicide. The court held that the suicide was a reasonably foreseeable, albeit uncommon, outcome of such an accident. 55 M Staten & J Umbeck, `Compensating Stress-Induced 56 See, for example, Corr (Administratix of The Estate of Workers' Compensation' (1994) 42 American Association of Occupational Health Nurses Journal 494. (1990) 6 Journal of Occupational Health and Safety: Australia and New Zealand 176. Organizational Change and Workplace Accident Prevention' (2003) 41 Safety Science 319. cites a number of research studies from the field of occupational health and safety indicating `a link between the introduction of performance monitoring and an increase in worker's health and safety problems.' 51 G Mendelson, `Occupational Stress Part 1: An Overview' 52 D Harrisson & C Legendre, `Technological Innovations, 53 See, for example, Johnston & Cheng, above n 10, which 11 Legal Issues in Business compensation legislation does not require a worker to show that the workplace was stressful or extraordinarily more stressful than some other workplace. It is necessary to simply show that the employment was a contributing factor (either at a significant or substantial level) to the stress-related condition. It is the level of contribution by the work to the stress-related condition that is the focus for Australian legislators. Importantly, as the rate of stress claims has increased, legislative responses have tended towards greater exclusion of claims. In all jurisdictions in Australia, stress claims arising from industrial relations/human resource matters such as transfer, retrenchment, redundancy, dismissal and reasonable disciplinary and administrative measures will not be maintainable. These exclusion provisions have tended to stabilise claims but have resulted in continuing high levels of litigation where workers seek to avoid the effect of the exclusions provisions.57 work stress make it clear that the worker must alert the employer to fact that their work is likely to cause a psychiatric injury. It is not enough that a worker merely complains about their workload.60 Running in tandem with the increase in complaints of work stress and stress-related conditions have been the demands by workers, usually through their unions, for greater worklife balance as a means of reducing stress in the workplace. This aspect is discussed below. The question of employer liability for claims of negligence made under common law for stress or stressrelated conditions will depend on the same general principles of negligence already discussed. However, the worker may find it more difficult to prove that the employer owed a duty to prevent the particular type of harm occurring. In the case of Physical­Mental stress, the harm which a worker seeks damages for is a physical harm with mental sequelae. Generally, this will be capable of assessment for damages.58 In the other categories of stress claim (Mental­Physical and Mental­Mental), the harm is initially mental, and generally the common law in relation to negligence (as distinct from workers' compensation provisions) requires that this harm must amount to some medically recognised form of psychiatric injury in order to be recoverable.59 Recent cases involving attempts to hold an employer liable for damages for the consequences of Work-life balance Regardless of whether an employer has a legal duty to compensate for workplace stress, the detrimental effects of workplace stress can be felt at the individual, organisational and societal level and is arguably an issue that `industry cannot afford to ignore'.61 However, recent research indicates that individual treatment responses (counselling, medication and so on) are not as effective as organisational interventions which work to reduce stress at an organisational level.62 One such organisational intervention may be the introduction of more flexible working practices, such as work at home arrangements and the option for employees to work in part-time positions. In some cases, where work is especially stressful, employers will have a duty to ensure that employees are able to maintain a work-life balance. These issues are now a common feature of industrial agreements and awards.63 A typical provision in an industrial agreement is: 60 61 Koehler v Cerebos (Aust) Ltd, above n 60. Building Industry Consultative Committee Report Recommends Greater Focus on Construction Worker Wellbeing (OHS Alert, 19 May 2008) . Review of Occupational Stress Interventions in Australia' (2004) 11(2) International Journal of Stress Management 149. Australia (Incorporated) v The Department of Environment, Water and Catchment Protection [2003] WAIRComm 7877; The Australian Workers Union, West Australian Branch, Industrial Union of Workers v Adecco and Flexi Staff Pty Ltd [2004] WAIRComm 13533; Civil Service Association of Western Australia (Incorporated) v Department of Fisheries 62 N Caulfield, D Chang, M F Dollard & C Elshaug, `A 63 See, for example, Civil Service Association of Western 57 R Guthrie, `The Legal Framework of Stress Claims in Australia' (2007) 14(4) Journal of Law and Medicine 528, 549. 58 59 Ibid 529. Ibid 532; also Koehler v Cerebos (Aust) Ltd, (2005) 79 ALJR 845. 12 Innovative Technologies - Volume 10, 2008 The employer balance issues in will the consider work-life development and implementation of its policies and practices. The employer recognises that staff have carer's responsibilities, and require time away from the workplace to care for family members, friends and further participate in their community. The employer is committed to ensuring that changes to the workplace do not increase the working hours of employees, as regulated by the Enterprise Agreement. Workplace changes which may impact on the work-life balance of employees will be the subject of consultation with employees and their representatives through the Implementation and Consultation Committee.64 Importantly in the context of work-life issues, the Family Provisions Test Case65 made provision for workers (on maternity leave) covered by federal awards to request that they return to work on a part-time basis until their child reached school age. This request could be refused by the employer if there were reasonable grounds for the refusal. Such grounds could include the effect on the workplace or the employer's business, the cost involved, the difficulty in getting a replacement and loss of efficiency or impact on customer service. The onus is on the employer to show reasonable grounds. Failure to ignore issues of work-life balance can create new areas of employer liability. There is a developing line of cases which point to this growing liability. One example is Reddy v International Cargo Express66 where an employer insisted that a woman return to work on a full-time basis despite her request to return to work for three days a week only. As an alternative, the woman proposed that she work on call for the other two days. It was held that the employer's failure to provide flexibility or to consider ways to accommodate the woman's carer needs amounted to discrimination and was an unreasonable reaction. The judgment clearly indicates that the employer should have evaluated and discussed the worker's proposals and at least attempted to trial the alternative arrangements. An award of $16,385 in damages was made for the stress and humiliation suffered by the applicant.67 The Family Provisions Test Case requirements have been adopted in the awards of some states, but at the time of writing have not been translated into federal industrial laws. Often this means that workers rely on anti-discrimination provisions to pursue issues of worklife balance. The subject of maternity leave is at the forefront of the work-life balance issue as it includes issues of return to work, carers' obligations and gender concerns. Part of the work-life balance may be allowing workers flexible work hours and work at home opportunities. The latter has been made more possible by advances in the internet which allow workers to replicate their work environment at home. Employers who allow employees to work at home through tele-working and other similar arrangements also need to consider how their duty to take reasonable care to protect workers from injury may extend into the employee's home. Conclusions This paper is not an extensive survey. It uses some case studies to highlight a perspective of the concept of innovation which is often overlooked. The paper does 66 Reddy v International Cargo Express [2004] NSWADT 218. August 2005 PR082005 [2005] AIRC 692 where the woman applicant successfully argued that her employer had breached the terms of its own maternity leave policy when she returned to work after leave but was given a job with lower status and job content to her previous position even though the salary and conditions were equivalent. It was held that the employer's maternity leave policy formed part of the employment contract and the employer's failure to abide by its own policy in providing a job of equivalent status to the returning employee was a breach of the contract of employment. She was awarded $10,000 and the first respondent was ordered to provide a written apology. 67 See also Rispoli v Merck Sharpe & Dohme & Others [2006] WAIRComm 5728; Finance Sector Union of Australia v National Australia Bank Limited [2007] AIRC 58. Tertiary Education Industry Union PR958008 [2005] AIRC 422 (emphasis added). 64 Australian Film, Television and Radio School v National 65 August 2005 PR082005 [2005] AIRC 692. 13 Legal Issues in Business not intend to project to the employer a risk averse thesis; instead, it suggests that the concept of innovation should be considered holistically by taking into account the potentially harmful and financially damaging effects of innovation in order to take preventative steps and avoid lost opportunities. Innovation, whether technological or organisational, entails change, and achieving successful change is often a difficult process. This paper demonstrates that achieving successful change through innovation requires an awareness of the effects of such change upon occupational health and safety and the need to research and comprehend current knowledge of possible impacts upon worker health, to prevent future liabilities. The consequences of change may not only be positive and increase profits but may hold some unexpected and dangerous outcomes for workers (in terms of the impact of such change on personal health) and for employers (in terms of their liability for the consequences). Although it is impossible to prepare for the unknown, being prepared for certain foreseeable eventualities is not only advisable but, in legal terms, incumbent upon employers. Employers who take into account work-life balance issues may be more successful in effectively managing the change brought about by innovation. This paper notes that, in some circumstances, employers have a duty to take these issues into account. In addition, the introduction of more flexible working practices, in particular, allowing workers to work from home, has consequences for worker health and safety as the lines between home and work are blurred. 14