Too often health and wellness (or wellbeing) programs involving far more general health management programs are \’sold\’ by providers on a false basis. As in the article that gave rise to Kevin\’s post – the MD of Jobfit is using the US model of health care and health insurance to generate buy-in in the Australian market. But it just doesn\’t fit the Australian model of healthcare under Medicare.

There well may be potential benefit for employers to provide wellbeing programs but as you rightly point out there are issues of privacy and confidentiality, amongst others, that must be considered in implementing the broader content of wellbeing programs.

I believe that the best place to start when assessing whether and what kind of well-being program your workplace needs, is to start with an old fashioned Find-Assess-Control approach. What are the hazards present in your workplace? Do you have a culture of overwork? (What is the true expectation for working hours in your workplace? What is the true expectation for taking leave? How does the company treat employees who become ill?) Is this culture affecting the health of employees? – this may need be assessed through presenteeism rather than absenteeism, as you point out, Kevin.

If you find there is definite risk to employee\’s health due to your systems of work, then you must control them – under the law. But if you\’re not controlling a real risk with your wellbeing program, then it\’s more about corporate branding – which can still be a positive and genuine reason for introducing one, but it\’s not, in my opinion, the core business of an OHS professional.

Les, lucky I\’m not, and never have claimed to be, a lawyer. I\’ll try to be more accurate.

Kevin,
Please do not read me as objecting to wellbeing programs per se. I\’m just fearful that we are accurate in how we present them as options to employers who seek our advice or whom we are responsible to advise.

As unbiased educators (hopefully) of those who read what we write, and with no ulterior motive than to provide sound advice, we need to be careful that we do not infer that our own beliefs are in fact legislated. This is the kind of device used for financial gain by unscrupulous people to \’hoodwink\’ the unsuspecting who should try to know better but who do not.

\’Welfare\’ and \’wellbeing\’ are not synonymous at law. Neither are they synonymous at law with the terms \’health\’ or \’safety\’.

As to the term \’Welfare\’ the meaning is given from the same guidance document you cited at
– Primary duty of care, ‘upstream’ duties and duties of ‘officers’, workers and other persons (sections 19-28)
• the provision of adequate facilities for the welfare of workers at work (for example access to washrooms, lockers and dining areas).

This usage was in the previous NSW act, as I mentioned in my previous reply, and carried much the same definition .

But the reference in the actual Act is – at section 19:
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities.

This limits the \’welfare\’ reference to provision of and access to facilities – giving credence to the words in the guide (which does not carry the same weight as the act) indicating physical facilities, as opposed to things in the broader sense such as health monitoring, etc.

When I do a \’title search\’ on the NSW version of the harmonised act there is no reference to \’wellbeing\’ in any context.
In fact the terms health, safety and welfare mean specifically different things at law. That is why the three terms are used separately (but together) rather than one all-encompassing word. Therefore we need to be careful not to extend the legal meaning of any of them or add ones that are not written in the law.

In the interests of O/WHS journalism, you can quite reasonably take the terms to mean what you like, so long as you define them appropriately.
But I\’m trying to caution you to being careful not to read them into law if they do not exist there. Hence as in your initial post you cannot claim provision of \’wellbeing\’ as a \”responsibility as documented in the OHS and work, health and safety (WHS) laws.”

Thanks Les.
Safe Work Australia\’s guide to the WHS Act says that:

\”The WHS Act provides a framework to protect the health, safety and welfare of all workers at work and of other people who might be affected by the work.\”

and

\”In furthering these aims regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable\”

I take the term \”health\” used in the laws in its broadest context, and the one I think is intended, as to include welfare and well-being.

Kevin,
Like you I believe in moral as well as legal obligations. But just as I called the article to account for incorrect referencing, I thought your reference to legal obligation for wellbeing was also incorrect.

We both may \’believe\’ that something is true at law but that doesn\’t necessarily make it true.

I agree that the employer has an obligation under the OHS laws to the extent that work adversely impacts on a person\’s health. But there is no legislated obligation for ensuring general wellbeing. Even in NSW the changed law removed the obligation to ensure \’welfare\’ of employees.

There is already too much reliance on mis-information by certain unscrupulous operators in our field. We need to be careful to be accurate in how we present the facts of OHS in order to dispel the myths and misinformation that abounds.

Les, I think many well-being advocates would acknowledge that exercise facilities are mostly used by those who are familiar and comfortable with them, instead of employees who may need them in order to improve their fitness for work. I think this reality was behind the WorkHealth program which tried to improve fitness for work by referring the employee through their own medical practitioner, rather than trying to improve the employee\’s health directly.

I believe the OHS/WHS laws do place a responsibility on PCBUs/employers for a person\’s health and wellbeing while at work. As people increasingly have blurred lines between work and non-work, the rules and responsibilities of employers are spread outside the workplace. This may be unfair but employers can always change this by not expecting employees to be \”on-call\” at all times, thereby avoiding the OHS issues related to long (unnecessary) work hours and unpaid overtime.

I also agree that employees should be fit for work but this works best when the employer recognises the OHS reasons for taking official leave. Frequently the workplace culture or management style causes employees to feel that they must attend work even when they are unfit for work – \”presenteeism\”.

The three issues in this response show how complicated personnel management can be and the need for an approach to OHS that includes Human Resources, executive leadership, appropriate workloads, and clearly defined working hours, amongst others.

Thanks very much for contributing.

Les, I have updated the link for the article to the one you found. Many thanks and my apologies for using a link that I thought worked.

Firstly, I\’ve had difficulty getting to the article because the link above at “Working harder for health“ keeps opening an \’Evernote\’ log in page.

But I did a web search and found the article at http://www.theaustralian.com.au/business/working-harder-for-health/story-fn717l4s-1226903467806.

After reading it I am concerned that an Australian paper would print the following unqualified quote from the managing director of Jobfit – \”I don’t think that we’ve fully embraced that your employer will take care of your health, while in many countries the employer will take complete responsibility for their entire health and wellbeing.”

I believe this is incorrectly referencing systems such as those in the USA where employers also cover employee health insurances etc, because they do not have a national health system similar to Australia\’s, and hence employers have a vested interest in maintaining employee health.

We don\’t have that insurance system in Australia and so the quote is inaccurate or, worse, being used inappropriately by that managing director to stimulate investment in that company on false grounds. Though some of what he says may be of value, it is clouded by reference to false assumptions and standards.

Also the quote relating to health check monitoring – \”Staff can also remain on-site without losing productivity.\” Even if they remain on site staff still lose productivity in attending the monitoring station, albeit a reduced amount than if they go offsite for monitoring. But in what context is an employer responsible for health issues such as blood pressure, diabetes or vaccinations?

I\’m also stumped by your own comment \”This analysis is essential if well-being programs are going to have ……………….. which is contrary to the company’s responsibility as documented in the OHS and work, health and safety (WHS) laws.\”

I know there is a legislative obligation for employers to ensure health and safety. And that this includes a responsibility for health affected by the conduct of the business. And this leads to the need to manage all sorts of contributing factors to work related risks such as fatigue, and so forth.

And so the quote from Bohle “(employers) need to ask are you healthy enough and do you have the functional capacity to continue to do the work that you’re doing” is an appropriate one, though I would have added \’safely\’ at the end.

But which of our O/WHS laws make a company/employer/PCBU responsible for any person\’s general \’health and wellbeing\’?

It is certainly not established in the harmonised Act as in force in NSW.

On this basis an organisation can establish a wellbeing program with every good intent but cannot necessarily require an employee to participate in it. Unless they tie the requirement to participate to the employment contract and make it a condition of employment, which then becomes subject to Industrial laws other than WHS.

Hence a company\’s O/WHS Management System is unlikely to be the driving force behind the success or failure of \’wellbeing\’ programs.

On the other hand, each individual does have a responsibility to be fit to perform the duties they have contracted to work.

But the job contract, unless expressly stated as above, does not give the employer the right to demand that an employee participates in programs which many wellbeing programs include in various combinations such as exercise, dietary management, weight-loss or anti-smoking programs.