'There is a strict liability for employers to ensure that they can prevent harm occurring in the workplace,' lawyer says
The number of retail workers who have been assaulted by customers at work has risen by more than 56%, according to a recent report from the Shop Disruptive and Allied Employee’s Association of Western Australia (SDA Union).
The report found 87% of members had experienced abuse from customers over the last year, and 30% reported incidents that happened on a weekly basis. In addition:
- 9% of respondents were spat on
- 12% experienced physical violence
- 15% reported abuse that was sexual in nature
Further still, only 48% of respondents said they felt safe at work.
Amid the instances of customer violence against employees, the SDA Union submitted a petition to the Western Australian government calling for stronger penalties for assaults on retail and fast-food workers in the state.
“Tougher penalties are needed to address the increasing number of assaults in shops and will send a strong message to offenders,” SDA WA Secretary Ben Harris said in a statement.
“Our members are often young workers in their first job, or someone’s parent who is putting food on the table. All too frequently, they are subjected to abuse and violence at work, and we want strong legislative action to be taken to protect them.”
So what can HR teams do to further protect these workers?
Legislation around employer assault
The SDA Union highlighted how New South Wales, the Northern Territory and South Australia have taken action to increase maximum penalties for customers who attack employees.
In June, the NSW government proposed tougher penalties for those who cause severe harm to retail workers. And the new laws were passed.
Under the Crimes Legislation Amendment (Assaults on Retail Workers) Bill 2023, three new offences were added into the Crimes Act 1900:
- Those who assault, stalk, harass, or intimidate a retail worker who is in their duty, even if no actual bodily harm was caused, will get a maximum of four years imprisonment.
- Those who cause actual bodily harm to a retail employee at work could get up to six years of imprisonment.
- And those who "wound or cause grievous bodily harm" to a retail worker, could face up to 11 years of imprisonment.
“We are sending a clear signal, we don’t want to see people have to worry about abuse for simply doing their job and we know this kind of abuse is harmful to workers and employers,” Sophie Cotsis, minister for industrial relations and work health and safety said in a statement at the time.
Preventing harm in the workplace
While a retail employee who sustains an injury on the job might lodge a workers compensation claim, an employer would look at what obligations they have under the law to protect their staff from these incidents, Bianca Seeto, executive manager and partner at Citation Legal (formerly FCB Group) told HRD Australia.
“There are laws in place – work health and safety (WHS) laws in place – that do protect employees in this regard,” she said.
The key consideration for retail employers is what they are doing to try to minimise the risk of an attack by a customer happening in the first place, Seeto said.
“There is a strict liability for employers to ensure that they can prevent harm occurring in the workplace,” she said. “We all know that not all risks can be fully eliminated. So the obligation is the elimination of risk to health and safety, to the extent of what is reasonably practicable.”
Hazards and risks for workplace safety
There are several factors retail employers should take into consideration when it comes to ensuring the health and safety of employees. These include the likelihood that the hazard or risk is going to occur; the degree of harm that might result from the hazard or risk; and what the employer could reasonably have known about the hazard, Seeto said.
“When you're talking about an employer's obligations under work, health and safety laws, especially in relation to customer related assault and aggression, some of the things that you would focus on is whether there was a system for dealing with aggressive or violent customers in the first place,” she said.
“Something that the retailer would need to turn their mind to are things like, is there an arm hold up procedure? Whether there's controls such as security guards, screens, alarms, CCTV, signage.”
Seeto also mentioned whether employees, manager and supervisors have relevant training in relation to customer attacks.
Positive duty and sexual harassment
In addition to verbal or physical abuse, Seeto also discussed instances of sexual harassment in the workplace.
“Some of the research shows that one in five retail workers will also report sexual harassment in the workplace,” Seeto said. “And this could be by a colleague or customer. And now under some recent changes under the Sex Discrimination Act, businesses now have a positive duty to eliminate as far as possible certain behaviour from occurring in the workplace.”
From 12 December, the Australian Human Rights Commission will also have the power to enforce compliance of an employer’s positive duty to eliminate sex discrimination, sexual harassment and victimisation in the workplace.
Ultimately, Seeto emphasised that it was important for employers to have a risk assessment. And if they determine a risk of harm, they should implement measures like getting security staff.
“Do you avoid employees working alone if that's possible, especially during late night trade and on weekends?” she said. “Do you have appropriate alarm and alert systems and protocols in place?
“The key is ensuring your employees receive adequate training on how to deal with customers if they are in an aggressive state.”
