WorkSafe moves on law firms following Russell McVeagh saga

But one barrister reckons there's enough in the Bazley report for prosecution by the regulator. Watch the video interview with WorkSafe's Simon Humphries.
Barrister Sam Moore discusses WorkSafe working with law firms on bullying and harassment.

Health and safety regulator WorkSafe is flexing its muscles at law firms following allegations of sexual misconduct and harassment at Russell McVeagh.

Last week Dame Margaret Bazley released her independent report into Russell McVeagh’s culture and practices, and the way it responded to the allegations. The probe found serious failings by the firm and gave almost 50 suggestions for change.

NBR can reveal WorkSafe has called a meeting with the country’s major law firms, saying it wants to engage with and monitor what the firms are doing. WorkSafe says it is not investigating Russell McVeagh itself.

The regulator wants to signal while it has traditionally only looked at physical injuries in labour-intensive industries, it is taking notice of harm in the office as well.   

Under the Health and Safety at Work Act, employers have a legal obligation to prevent psychosocial health risks as well as other forms of harm in their workplaces.

As well as agreeing to meet with WorkSafe, major firms surveyed by NBR are already reconsidering their health and safety policies, although it's not clear whether they will go as far as implementing everything the independent probe recommended for Russell McVeagh.

Regulator in action
WorkSafe acting deputy general manager for investigations Simon Humphries says this country’s eight-largest firms have been told to meet with the regulator because of the Russell McVeagh situation. The regulator won’t name which ones are included.

The move follows a complaint from the Wellington Women Lawyers’ Association in May about the top-tier law firm.

“We know there is evidence that, when sectors take ownership of problems or issues within the sector, we see a better increase and benefits getting out to the health and safety of workers,” Mr Humphries says.

While the action falls short of a real probe, WorkSafe says it will take on the task of making sure Dame Margaret’s recommendations are established at Russell McVeagh.  

“This is not us saying [law firms] can’t handle it. It’s us wanting to ensure they have the systems and processes and policies to protect their workers,” Mr Humphries says.

“We want to see the recommendations met and systemic change in the legal fraternity,” Mr Humphries says, adding its important new policies help workers put their hand up.

“What we are saying here is this psychosocial impact is not discriminatory, it is across all sectors. We have priority sectors but we want people to realise that WorkSafe is there for psychosocial impact and employers should be putting stuff in place to address that now.”

Health and safety barrister Sam Moore says the Bazley report provides grounds to prosecute Russell McVeagh.

Increased focus
Mr Humphries says over the past few years WorkSafe has put the “health” into health and safety, and that its minister wants it to become more involved in the area.

However, since it was formed in 2013, it has received 125 bullying complaints, and none were prosecuted. WorkSafe figures show 11 bullying complaints were formally investigated, 57 were referred on, seven were assessed by WorkSafe on site, and 50 didn’t meet the threshold for further action.

“WorkSafe has taken some investigations into bullying and they are complex investigations and that’s not to say other organisations haven’t taken some action following that. There’s a myriad of reasons that WorkSafe might not prosecute, for example being referred to the Employment Relations Authority or the NZ Police,” Mr Humphries says.  

Barrister Sam Moore says this is a new focus, not just for WorkSafe but also other health and safety regulators around the world, as office environments are not typically a focus.

“WorkSafe is a relatively young regulator. It hasn’t been around in its current form for very long but the first piece of guidance issued was in relation to bullying so, while it hasn’t happened before, the writing has been on the wall.”

Mr Moore, who is an adjunct lecturer at AUT University in health and safety, says, in theory, WorkSafe could prosecute Russell McVeagh under current law.  

“If you were to accept the content of the Bazley report, in my view, there’s sufficient information that harm has in fact occurred and that Russell McVeagh failed to take all reasonable and practicable steps [to prevent harm].”

“But that’s a value judgment a regulator has to make.”

In terms of the law firms, Mr Moore says it was open for WorkSafe to do more against them “but I wouldn’t be surprised if it was no more than a meeting.”

If the regulator doesn’t like what law firms are doing, it could issue further guidelines, prosecute or use any of its other powers such as issuing notices and on the spot fines, Mr Moore says.  

Will law firms update their policies? 
Several of New Zealand’s major law firms say they are reviewing the report and may change their policies based on Dame Margaret’s recommendations for Russell McVeagh.  

NBR chose several of Dame Margaret’s recommendations and asked major firms what their equivalent policy was and, if they didn’t have one, whether they might consider it. 

The recommendations asked about were: maintaining a confidential mechanism for reports of bullying, conducting exit interviews with independent consultants, having a fair system of days in lieu or payment for overtime that wasn’t at the discretion of partners, management criteria when selecting partners and a separate head of office for Wellington.

Bell Gully gave a blanket response, with its chairwoman, Anna Buchly, stating the firm had already been reviewing its policies but, given Dame Margaret’s report, there might be more it needs to consider.

Others gave more nuanced responses, with not all seeing the need to enforce Dame Margaret’s suggestions, and many of them already having the policies that were recommended for Russell McVeagh.

Asked whether it has a confidential mechanism for reports of bullying, MinterEllisonRuddWatts, Buddle Findlay and Chapman Tripp all said they had had these, with Buddle Findlay pointing out it had external pathways to report bullying.

On exit interviews, none of the firms said they used external parties to conduct them. Simpson Grierson may review this policy, as it reviews all the recommendations in the report while Buddle Findlay said it will reconsider this as well. Minters said outsourcing creates challenges and its own processes were an “effective mechanism.”

MinterEllisonRuddWatts chairman Lloyd Kavanagh says policies aren't enough. It is about having the right culture.

Leadership and management 
The absence of formal leadership in Russell McVeagh's Wellington office was an issue for Dame Margaret, who saw this as contributing to the firm’s poor response to alleged sexual assaults. Russell McVeagh has said it will appoint a Wellington office head. Simpson Grierson and Buddle Findlay both have heads of offices outside Auckland while Chapman Tripp has its board chairman in Christchurch and a separate Wellington managing partner.

Minters said its national chief executive, Mike Schubert, leads both offices and spends time in proportion to its office sizes in Wellington and Auckland.

All the law firms were asked how balanced their work-life environments were and whether there was a fair system of days in lieu or payment for overtime rather than being left to the discretion of partners.

Buddle Findlay said compensation for overtime was at the discretion of partners and supervisors while Chapman Tripp said it was reviewing its policy in that area. Minters said its HR director also has discretion along with leadership to monitor workloads while Simpson Grierson would not specify whether overtime was under the control of partners alone.

Minters chairman Lloyd Kavanagh said having the right policies and procedures was essential but not sufficient.

“In our experience, the key is a culture where respect, diversity and inclusiveness are front and centre, and everyone is empowered to call out inappropriate behaviour,” he says.

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