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DEALING WITH WORKPLACE AGGRESSION While workplace violence is not a novel hazard in the retail industry, its increased incidence is certainly a reason for revisiting hazard identification and risk management strategies. DBy Bird & Bird Partner Kristy Peacock-Smith and Senior Associate Leila Moddel. uring the pandemic, more than employers must ensure, so far as is 88 per cent of Australian retail reasonably practicable: workers have experienced • The provision and maintenance of aggression from customers, a work environment without risks to with incidents of workplace violence health and safety. “More than 88 per cent of retail workers experienced aggression from customers.” • Training workers in how to deal with difficult customers. Protecting employees from workplace violence has benefits in reducing absenteeism and potential injury that could result in workers’ compensation claims. While overall, serious workers’ compensation claims in the retail industry are down 28 per cent compared with 20 years ago, the median time lost by working weeks is up 63 per cent, with median compensation for serious claims increasing by 270 per cent. Overall, the cost of workers’ compensation claims to employers, especially in relation to claims for mental illness, has never been higher (‘Australian workers compensation statistics 2018-19’, Safe Work Australia). having spiked 400 per cent, according to the National Retail Association 2020 report, ‘Health and wellbeing of Australian retail workers’. An exposure to workplace violence can lead to physical and psychological impacts on workers, including anxiety, depression, PTSD and stress related illnesses. Employers have a duty of care to ensure, as far as reasonably practicable, the health and safety of workers while they are at work, and with the increase of workplace violence in the retail industry, it’s helpful to revisit work health and safety obligations. What is workplace violence? Workplace violence includes: • Physical assault such as biting, scratching, hitting, kicking, pushing and throwing objects. • Intentionally coughing or spitting on someone. • Sexual assault or any other form of indecent physical contact. • Harassment or aggressive behaviour that creates a fear of violence, such as stalking, verbal threats and abuse, yelling and swearing. This can be in person, by phone, email or online. In 2019, Insurance and Care NSW (icare), a workers’ insurance and advocacy group, released a review of the causes of workplace violence and aggression and the experiences of retail workers. The workers interviewed identified verbal aggression as the most frequent and reported feelings of helplessness during negative customer interactions. Consequences ranged from a negative mood for the day, to enduring effects on the worker’s self-esteem and self- confidence, and in extreme cases of workplace violence, long term impacts on their mental health and wellbeing. What are your obligations as an employer? Under work health and safety laws, • The provision and maintenance of safe systems of work. • The provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out. That the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers. Employers are also required to engage in consultation – again, so far as is practicable – with employees about matters that are likely to, or do, directly impact workers. In response to the rise in customer aggression during the pandemic, NSW and Queensland enacted criminal provisions specifically dealing with behaviour directed at workers, including spitting, coughing or acting in a way that would reasonably be likely to cause apprehension or fear of being exposed to Covid-19. Retail workers have specifically been referenced in a 2020 NSW public health order. In both states police may issue significant on-the-spot fines and in serious cases offenders may be imprisoned. To mitigate risks, employers must: • Identify hazards in the workplace. • Assess the associated risks. • Implement control measures to eliminate or minimise risks. • Regularly review control measures to ensure they remain effective. In the retail industry, control measures for workplace aggression include: • Managing expectations of customers and providing sufficient staff at peak times. • Ensuring access to the premises is appropriately controlled. • Limiting the amount of cash and valuables held on the premises. • Displaying signs to reflect that the workplace will not accept any forms of violence or aggression. LEGAL About Kristy Peacock-Smith Kristy Peackock-Smith leads Bird & Bird’s Employment Law team in Sydney. Kristy advises clients on a broad range of employment matters from business establishment, drafting contracts/policies, incentive plans, employer investigations and conducting litigation into areas such as unfair dismissal, adverse action, breach of contract, restraint of trade and more. About Leila Moddel Leila Moddel is a senior associate at Bird & Bird’s Sydney office. She advises on issues in employment and industrial law for clients in sectors such as retail and consumer, manufacturing, health care, child care and professional services. About Bird & Bird Bird & Bird is one of the world’s leading international law firms advising industries where technology, regulation and intellectual property are driving change. With a strong Australian presence, clients enjoy global reach across various practice areas. APR, 2021 RETAIL WORLD 65