Sending staff to the Commonwealth games: a duty of care breach?

Sending a large Australian government employed delegation to the XIX Commonwealth Games, in the face of adverse security, safety and health risk assessments from credible sources, is potentially a breach of the duty of care, according to OHS legal experts.

The Occupational Health and Safety Act 1991 (Cth), which covers Australian Commonwealth government employees, has extra-territorial scope, so the government has an obligation to ensure the health and safety of their employees in India.

Commenting on the OHS implications of sending personnel to the Commonwealth Games, Norton Rose’s Michael Tooma and Sam Witton noted that, to make matters worse, media organisations may well be in a similar position.

“Journalists and commentators are covered by the State based OHS regimes,” they noted in a recent briefing on the issue.

“The acts of the Australian States do not have extra-territorial scope. However, if a decision is taken within a state by a manger to send one of their employees to Delhi in the face of adverse risk assessments without additional precautions to mitigate that risk, the decision may well be in breach of the duty of care of the company to ensure the employees health and safety.”

In the event of serious injury or fatality, they noted that the prudence of the decision to send an employee overseas is likely to be closely scrutinised.

“An occupational health and safety policy should have triggers inbuilt at which point a decision is taken that no travel to a high risk country is permitted,” said Tooma and Witton.
“Such a decision may be linked to the travel advice of the home jurisdiction government. For areas which are less frequently travelled to (or where travel is deemed essential), the advice of security consultants may need to be relied upon.”

Insurances should also be checked to ensure they are adequate (as many policies will not cover terror attacks or kidnap and ransom payments) and evacuation plans need to be in place and communicated to staff.

Should the worst occur, they said employees should know who to report to so that employees can be quickly located and their security assured.

“In addition, consideration should be given as to whether any additional training of staff is required so that they are aware of risks and are able to respond to threats,” they said.