Do you know the challenges that are involved in sending your employees to work abroad? It’s prudent for businesses that send employees on overseas assignments to assume that Australian work health and safety laws apply. Company officers and managers have a duty of care obligation and must therefore ensure that they fully prepare their company prior to sending employees on work related travel. As interest in developing countries in Africa, Southeast Asia and South America increases, Australian businesses are joining the rest of the world in turning their attention abroad. Industries such as mining, oil and gas, construction and manufacturing are drawing businesses into increasingly remote countries, or more far-flung locations in established countries. In line with this trend, corporate travellers are heading to a wider variety of unfamiliar and challenging environments.
This is prompting many organisations to take a closer look at the measures they have in place to protect their people and their business. So what exactly is an employer’s duty of care towards employees while they are travelling internationally? This can be a complex question, as work health and safety laws don’t always deal explicitly with international travel. Trent Forno, a partner at Minter Ellison Lawyers who specialises in employment law, says it’s prudent for businesses that send employees on overseas assignments to assume that Australian work health and safety laws will apply to the whole of the assignment. “While most OH&S laws won’t specifically say they apply to overseas trips, it comes down to whether there is a sufficient connection between the business being conducted in Australia and the employee’s activities overseas,” he says. If the assignment is only temporary, and it is intended that the employee returns to Australia, Forno says in most cases the ‘sufficient connection’ test will probably be satisfied. Forno also suggests businesses look to their state’s workers’ compensation laws as a guide.
“In Queensland, for example, the Workers’ Compensation and Rehabilitation Act 2003 contains specific rules about when an employer is required to insure for injuries sustained by their employees while working overseas. Basically, it turns on whether their ‘principal place of employment’ was in Queensland at the time they suffered the injury. If so, the employee is covered under the Queensland scheme and has the right to claim compensation, and even common law damages, if it can be proven that their employer was negligent,” Forno says. He warns that while the legalities may be complex in international environments, if there was an incident involving a corporate traveller the question may well be asked as to what their employer did, or could reasonably have done, to prevent it. In light of this, what can organisations do to demonstrate an exercising of due diligence? There are three key areas to consider when reviewing your organisation’s approach to travel safety.
Be fully informed
The concept of ‘reasonably practicable’ rests in part on what a person knows, or ought reasonably to know about a hazard or risk. Use information that goes beyond the basics. In a corporate setting, relying on government travel advisories won’t be enough. Corporate travellers are travelling because they want to take an opportunity – they’ve already made the decision to travel and the information they need is about how to manage risk. Being told that they should ‘reconsider their need to travel’ won’t help them. Instead, source information that focuses on what needs to be implemented in order to travel safely to a particular destination. Real risk needs to be identified and addressed. When people travel internationally, particularly to unfamiliar or higher-risk environments, they automatically think of worst-case scenarios such as being shot, blown up or kidnapped. In reality, the true risks can be quite different. Once you consider the events that are most likely to occur, organisations usually discover things like road accidents, crime and the ill-considered actions of individuals are what really put people at risk. Add fatigue and alcohol and travellers become increasingly vulnerable to threats in their environment.
Lay a good foundation
Organisations should consider travel risk in terms of how it can affect the entire business, from the board of directors through to the people who travel on behalf of the organisation. A corporate travel policy is essential to this as it establishes a shared understanding of what is expected from both the organisation and travelling employees. Organisations are well within their rights to impose restrictions on corporate travellers, and employees have an obligation to minimise any threats to their safety. Insurance is an equally important factor. It’s not uncommon for organisations to purchase their travel insurance without investigating the policy exclusions. For example, many corporate travel insurance policies may exclude coverage for locations where all or part of the country is rated ‘do not travel’ by DFAT. If you are sending people into areas where such conditions exist, you can end up with a policy that is ineffective.
Many companies support their employees by providing subscription-based travel-alert services via email or SMS but this information is almost always ineffective and a waste of company money. The information people receive must be three things: current, accurate and relevant. In many cases travel alerts meet the criteria of current and (somewhat) accurate, but they lack relevance. Relevance means that the information is specific and applicable to a traveller’s situation, and lets them know what action – if any – needs to be taken as a result of the information being provided. Otherwise most people will stop reading alerts and briefs after a few days, particularly if they are fatigued, working to a tight deadline, or are getting no tangible benefit from the information. Similarly, many organisations are now using traveller tracking via mobile phones or handheld devices. Organisations need to think about how this will work practically. Tracking people using a mobile phone or similar device may work when everything is going well, but how will this work during an emergency situation? Often during abduction or robbery, mobile phones and any item that looks like a tracking, alert or communication device will be the first thing taken off someone. More discreet and practical options are available. Trent Forno offers one final piece of advice regarding duty of care, and that’s to make sure that your record of meeting it exists. “To meet legislative requirements the measures you implement should be reasonably practicable in light of the situation and the availability of suitable treatment options. From a compliance standpoint, it’s important to be able to demonstrate the reasoning behind this,” he says. This would be particularly important in the event of an incident that involved an investigation.