NSW introduces Workplace Protection Orders for retail workers

What is a workplace protection order?

A workplace protection order (WPO) is a civil protection order designed to prevent assault, threats, stalking, harassment, intimidation, and damage to workers' or store property. An order may also ban the respondent from approaching or entering the store or specified places connected with it. Unless the court sets a different period, an order lasts for 12 months.

An application for a WPO may be made to protect a worker or class of workers who:

1. carry out work at a relevant workplace, being a retail workplace or another workplace prescribed by the regulations;

2. directly interact with members of the public while carrying out that work; and

3. are at risk from a respondent, who is not another worker at the same workplace, and is at least 14 years of age when the relevant conduct occurred.

A retail workplace is one in which goods are sold, or offered or exposed for sale, by retail, including by auction. Retail workplaces will be the first eligible type of workplace, with other public-facing workplaces (such as health care or transport) to be potentially added by regulation in the future.

Applications may be made by a person conducting a business or undertaking (PCBU) at the workplace, an employer organisation, a trained health and safety representative, or a union entitled to represent the workers. The Government intends the scheme to be primarily PCBU-led, in line with the PCBU’s duty of care. Where the PCBU is not the applicant, it must be given at least five days’ notice before the application is heard and is entitled to be heard in the proceedings.

The NSW Government has emphasised that a WPO can protect either specific workers or an entire class of workers. This recognises that some offenders target individual staff, while other offences are indiscriminate. A single application may also cover multiple workplaces operated by the same PCBU, so that chain stores can be captured by one WPO.

When will a court grant a WPO?

The Local Court (for adult respondents) or the Children’s Court (for respondents under 18) may grant a WPO if satisfied, on the balance of probabilities, that the respondent has engaged in conduct at, or in connection with, the workplace amounting to a personal violence offence, stalking or intimidation, there are reasonable grounds to fear such conduct will recur, and that the conduct is sufficient to warrant the order. Where the respondent is a child, exceptional circumstances must also exist.

The court must also consider the safety and protection of the workers, as well as:

1. the respondent’s past conduct, including whether the respondent has engaged in conduct in relation to the workers, the workplace or similar workplaces (section 42(2)(a) of the Bill);

2. whether there are less restrictive interventions that may be sufficient to restrain the respondent's conduct, whether or not the interventions have been in place before the application was made (section 42(2)(b));

3. any hardship that may result from making or not making the order (section 42(2)(c)); and

4. and other relevant matters (section 42(2)(d)).

The court must also generally refer the parties to mediation, unless there is sufficient reasons not to (i.e., a history of physical violence against the workers) (section 43).

Interim orders, conditions and duration

A court may make an interim WPO where necessary to prevent an immediate risk to workers’ safety, whether or not the respondent is present or has been given notice. The court may also impose further conditions, such as banning the respondent from approaching or entering the workplace, but must not impose restrictions that would cause undue hardship (for example, cutting a person off from their only local supermarket).

Service, disclosure and offences

Unlike apprehended violence orders, responsibility for serving the application notice rests with the applicant, not police, although a process server may be engaged. Where the respondent is not in court when an order is made, the applicant must also arrange personal service of the order. The PCBU (and the applicant) may disclose the making and terms of a WPO to workers at the workplace.

Knowingly breaching an order carries a maximum penalty of 2 years' imprisonment, 50 penalty units, or both.

Commencement

The Bill remains subject to debate and passage through both Houses of Parliament, and its terms may vary through this process. If passed, the Act will commence on the earlier of 12 months after assent or a day appointed by proclamation.

What this means for retailers

1. Review incident reporting and record-keeping: Retailers should ensure they capture detailed records of abusive, threatening or violent conduct by customers, including repeat incidents across stores, as the court will consider the respondent’s past conduct and any course of conduct towards the workplace or similar workplaces.

2. Prepare internal processes for applications: As the scheme is intended to be PCBU-led, retailers should consider who will decide whether to apply, how applications will be prepared, and how notice and service obligations (including use of process servers) will be met.

3. Update WHS processes: Consider how these orders will be implemented and change the roles of store teams, loss prevention and security contractors and how these WPO's will be enforced.

4. Engage with employer organisations, HSRs and unions: Retailers should be aware that employer organisations, health and safety representatives and unions may also apply for WPOs, and that a PCBU is entitled to notice and to be heard where it is not the applicant.

5. Plan for staff communication and training: Retailers should consider how they will communicate the terms of any WPO to staff (as permitted by the Bill), and train staff on responding to breaches.

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