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Work stress in the banking industries of Australia and South Africa: drivers of stress and legislative responses to the issue.

INTRODUCTION

This paper considers work stress as it relates primarily to the banking sector in Australia and in South Africa. As is evident from the banking sector profiles set out in Part One of this paper, both the Australian and the South African banking sectors have much in common, not least the fact that each sector is dominated by four major players; that the banks in each jurisdiction are relatively strong in the face of global economic pressures; and that both sectors are characterised by a predominantly female workforce. Some of the issues faced by the two sectors in 2012 are, likewise, comparable: the continued fragility of the world economy poses the biggest threat to the banking industry in each of these countries, as elsewhere; concerns around the complexities of regulation and compliance, as well as concerns over political interference, likewise rank high in importance to both the South African banks and the Australian banks (PwC, 2012, p. 34). However, there are also some notable differences between the sectors: in particular the risk of losing human resources 'talent' is a significant concern to South African banks, but less so to Australian banks (PwC, 2012, pp. 35-36).

The extent to which these issues impact, directly or indirectly, on the incidence of workplace stress in the Australian and South African banking sectors may be difficult to measure precisely, though it seems clear that the general macroeconomic climate is affecting actual employment within the sector and, in turn, job security. In Australia, despite the uncertain global financial climate extant in 2012, the large banks continued to post significant profits. (1) Nevertheless Australian banks are certainly not immune from the pressures experienced by their counterparts on the other side of the globe (Stephens, 2011). In early 2012 the Australia and New Zealand Banking Corporation (ANZ) announced up to 1,000 job cuts. These cuts have been attributed to the overall financial climate, in particular to the increased cost of borrowing (Bell, 2012; McMahon, 2011). According to reports in early 2012, analysts were predicting up to 4,000 bank employees would lose their jobs across the Australian banking sector in the coming months (Whalley, 2012). Job cuts have also occurred across the South African banking sector in recent times. In 2011 the total number of employees in the major South African banks decreased by 0.3 per cent from 2010. This decrease has been attributed largely to 'tight headcount management strategies' being employed by banks in the country; a strategy which, in turn, reflects costs pressures on the banks resulting from general macroeconomic conditions (PwC, 2012, p.18). Job cuts in the South African banking sector are significant as the financial services industry, of which the banking sector is a part, is the country's third largest employer (SSA, 2012).

International meta-studies of insecurity of employment show that stress-related health decline is often an outcome (Ouyang, 2009). This may explain why job insecurity is a major contributor to the relatively high level of workers' compensation claims related to mental stress made by workers in the Australian banking and finance industry. Whilst it may be the case that almost any industry presents its own array of stress factors, particularly in times of financial uncertainty, recent press reports suggest that workers in banking and finance may be exposed to particularly high levels of stress. The UK Guardian, for example, reports that: "[a]t least six documented suicides in the financial industry have been linked to the credit crunch." (Clark, 2009). Similar media reports have appeared in the United States (Kirby, 2009; Nawsaw, 2009).

Australian research suggests that one of the chief causes of work stress may be related, not only to job insecurity but also to work pressures caused by changes in work practices. A number of other stressors, such as relationships with peers, and stress arising from the public interface of banking (including threats of violence and hold-ups), are commonly reported by bank employees, both in Australia and South Africa. Following an overview of the banking sector in Australia and South Africa, in Part One, this paper goes on to discuss, in Part Two, some of the research around stress factors in the banking sector of these two major economies.

Despite some similarities between the Australian and South African banking sectors, both in terms of structure and some of the issues faced by banks and, in turn, their employees, the sectors clearly operate in very different legal environments and economies. Whilst both jurisdictions have extensive occupational health and safety (OHS) legislation, the extent to which these regimes require employers to proactively manage work-related stress is different. In particular, OHS legislation introduced in most Australian jurisdictions in 2012 is more explicit than South African legislation in terms of the psychosocial health of workers. The potential effect of the new OHS legislation in Australia on the way in which workplace stress is managed, and an overview of how OHS legislation in South Africa applies to workplace stress, is discussed in Part Three. Likewise, both countries have workers' compensation schemes, though the extent to which these mechanisms provide redress for workers suffering from mental stress is different--some of these differences are explored in Part Four of this paper. Finally the paper summarises some of the similarities and differences between stress factors within the banking sector in South Africa and Australia and concludes with some recommendations for future research.

PART ONE: PROFILE OF THE BANKING SECTOR IN AUSTRALIA AND SOUTH AFRICA

Australia

The Australian banking sector is dominated by the 'big four' banks, namely National Australia Bank (NAB), Commonwealth Bank, Westpac Banking Corporation and the Australia and New Zealand Banking Group (ANZ). A number of other domestic banks (2), as well as foreign subsidiary and foreign branch banks also operate in Australia (APRA, 2012(a)). The quarterly banking performance statistics compiled by the Australian Prudential Regulation Authority show that the big four banks posted a net profit of approximately AUS$23.5 billion to the 2011-2012 financial year end (APRA 2012(b)).

Until the 1980s the regulation of the banking industry in Australia limited the access of foreign banks. However, in 1985, following the earlier Australian Financial System Inquiry undertaken by the Campbell Committee which recommended deregulation of the Australian banking industry (Fane, 1994), the first foreign bank began operations in the country (Sturm & Williams, 2004, p. 1775, p. 1780). As at October 2012 there were eight foreign subsidiary banks and 40 branches of foreign banks operating in Australia (APRA, 2012(a)). One response to the increase in competition, or the threat of it, consequent on deregulation was that the big four banks acquired many of the smaller, state-based banks, resulting in large scale retrenchment and job cuts (Argent, 2002, pp. 317-318, p. 326). According to one author, between 1991 and 1996 the finance industry workforce declined by 8.8 per cent (Gandolphi, 2009, citing Australian Bureau of Statistics' data for 1998, p. 188), and concerns about the effects of takeovers and the off-shoring of banking operations on jobs in the sector continued to be raised by unions in recent years (FSU, 2008). As has been noted above, in early 2012 analysts were predicting thousands of imminent job cuts in the Australian banking sector, these cuts being largely attributed to the pressure exerted on the banks by increased lending costs.

Another consequence of deregulation has been the significant restructuring and redesign of the service delivery methods operated by Australian banks (Joseph, McClure & Joseph, 1999, p. 183; Argent, 2002, p. 317). The redesign of banking services involved a shift from traditional lending services (loans and mortgages) to retail services involving the sale of ancillary banking products such as insurance, income protection and loan restructuring. At the same time banks adopted technologies which substituted branch offices with technology-supported banking kiosks, phone and PC banking and automotive teller machines (ATMs) (Lloyd-Walker & Cheung, 1998). Manning (1990) observes that, to the customer, the face of banking changed dramatically during the 1980s, but less obvious were changes to the nature of work, skills and career prospects for bank employees. French and Strachan (2007, p.327) observe that restructuring in the banking industry has resulted in the banks seeking:
   ... part time and casual staff to meet demands of peak business
   hours. Older women with family responsibilities provided a ready
   source ... of labour for support roles and service jobs outside the
   career structure.


By 2012, women made up just over 50 per cent of employees in the finance and insurance sector (3) and worked, on average, a greater number of hours in part-time jobs than men; indeed this sector accounts for the greatest difference between the average hours worked in part-time jobs between men and women than any other sector (EOWWA, 2012). Despite the number of female employees within the financial services industry, Metz (2003, p.236) has noted that "women are still under-represented in management and senior management". French and Strachan (2007, pp. 315-316) noted that in 2003 only 15 per cent of management/professional positions were held by women in the finance and insurance sector and that eight banks listed in the ASX200 had an average of only 14 per cent women in executive management and 15.8 per cent in board positions. Nevertheless, there are signs that banks are taking steps to actively change these statistics; in 2010 Westpac, for example, announced that it had put in place gender targets to increase the number of women in senior roles to 40 per cent (Johnston & Bibby, 2010).

From the late 1990s to the end of 2010 Australian employers had significant scope to choose their preferred approach to industrial relations. The Workplace Relations Act 1996 (Cth), introduced by the Howard Government, supported a much more direct relationship between employers and employees, whereby unionised collective agreements could be replaced with individualised or collective non-union agreements (AIRC, 2006, p. 8). This provided banks with an opportunity to restructure industrial awards and allowed for the traditional reward structure--salaries concomitant with years of service and annual incremental wage increases--to be replaced in some cases by award schemes based on performance and the payment of incentives, or bonuses, to employees achieving certain sales targets (Manning, 1990, p.335). Performance bonuses in banks are now frequently tied in with sale performance (4) and this drives a range of behaviours and management practices which, as noted below, may multiply work stressors in some circumstances. Interestingly, with the enactment of the Fair Work Act 2009 (Cth) there are signs that some banks are prepared to enter into negotiations for the renewal of collective agreements (FSU 2009 (a)).

South Africa

Historically, tight regulation of the South African banks, a lack of competition and the effect of economic sanctions drove inefficiencies and, eventually, led to crisis within the sector (Singleton & Verhoef, 2010, p. 545). In 1985 foreign banks withdrew credit lines to South African banks and many foreign banks withdrew entirely (Singleton & Verhoef, 2010, p. 546). It was against this background that reforms of the sector were eventually introduced, one objective of which was to stimulate competition within the sector. Singleton and Verhoef (2010, p. 549) note that:
   [w]ith these changes South Africa was following international
   banking trends, as well as those within New Zealand and Australia.
   Deregulation led to increased competition and, eventually,
   increased concentration, in all three countries.


Today, as is the case in Australia, four banks dominate the South African banking sector in terms of asset share: namely ABSA, FirstRand, Nedbank and Standard Bank. These banks hold between them 84 per cent of the total banking assets in the country (BASA 2010, p. 3). In 1994, the Banks Act 1990 was amended to allow for foreign shareholding of South African banks and for the establishment of branch offices and representative offices by foreign banks (Singleton & Verhoef, 2010, p. 549). As at 2012 there are 19 registered banks, two mutual banks, 13 local branches of foreign banks and 43 foreign banks with approved representative offices operating in South Africa (BASA, 2010, p. 1).

Also in common with Australia, South African banks have largely succeeded in establishing and maintaining a presence in international markets through outwards foreign direct investment (Singleton & Verhoef, 2010, p. 555). In 2010, in the face of employee retrenchments within the Standard Bank of South Africa, the trade union Solidarity was questioning the bank's rationale for retrenching more domestic employees than foreign employees and contractors and commented that "[t]he banking group spends about R350-million per year on foreign contractors, and foreigners receive almost double the remuneration that local employees with the same job description receive". ('Union may approach court over bank's retrenchments' 2010, citing Solidarity Deputy General Secretary Gideon Du Plessis, para 8) Thus, although off-shoring of banking jobs may represent concerns to South African unions, as it does to their Australian counterparts, the concerns are very different.

As is the case in Australia, South African banks are in a reasonably strong position, despite the recent global financial crisis. A 2012 report by Pricewaterhouse Coopers (PwC) (2012) notes that the four major South African banks all demonstrated resilience and growth in a number of aspects, despite low interest rates and a challenging business environment. The improvement in the operating performance of the major banks has resulted in the payment of incentive awards, or performance-related bonuses, to certain bank employees (PwC, 2012, p. 18). Despite the relative strength of the South African banking sector, a drop in the total number of employees in the major banks was reported in 2011 (PwC, 2012, p. 18), though, as noted above, the finance sector remains South Africa's third largest employer (SSA, 2012) with the 20 banks participating in a 2011 report on South African banking employing, between them, close to 150,000 people (PwC, 2011). Overall, uncertainty over employment levels in the South African banking sector characterises the first half of 2012; although some reports indicate that the number of bank workers is increasing (Bonorchis & Martinez, 2011), other reports paint a less rosy picture (Naidoo, 2012).

As is also true for Australia, the design and delivery of banking services and products in South Africa has changed in recent years, with a trend towards mobile and internet banking (PwC, 2012, 35). In tandem with this trend is the fact that one of the most significant concerns of South African banks is their high dependence on technology (PwC, 2012, 35). One of the issues giving rise to the banks' concern about their dependence on technology may be the fact that technology provides additional opportunities for fraud and other types of cybercrime; the risk of criminality and of fraud also both rank highly for South African banks (PwC, 2012, 35). Managing technology-related risk requires investment in staff training, policies and compliance procedures; these are factors which all directly impact on the day-to-day work of banking staff and may be factors impacting, directly or indirectly, on levels of stress experienced by employees in the sector.

One of the most significant concerns facing South African banks, as perceived by the banks themselves, is human resources. In particular, a shortage of skills is commonly reported as a risk factor for South African banks. PwC (2011, p. 51) reported that the most pronounced skills shortage was 'an understanding of risk', although it also reports that one bank had commented on an 'across the board' skills shortage. As discussed in Part Two, a general skills shortage may be a factor impacting on the workplace stress levels experienced by workers within the sector.

The gender make-up of the South African banking workforce is predominantly female, with 60 per cent of the total number of employees in the sector being women. A 2007 employment survey of the South African financial services and accounting sector found that women held approximately one third of managerial positions within the sector, but that only 8.4 per cent of all managers were black women. Research conducted for the Financial and Accounting Services Sector Education and Training Authority (FASSET) in 2009 noted that, despite the range of legislation and policy designed to address gender, race and other inequities in South Africa, the "triple oppression of South African women--in terms of gender, race and class--continues to be one of the main challenges facing our political and economic landscape" (Research Focus, 2009, p. 17). The 2010-2011 report by the South African government's Commission for Employment Equity (2011, p. 16) found that in the finance and business services sector, white women at the professionally qualified level were almost five times more represented than the general economically active population.

The skills shortage referred to above experienced by employers in the banking sector, as well as the requirement for employers to comply with employment equity laws and black empowerment policies (KPMG 2012, 58), means that many South African banks are actively seeking to recruit and retain employees that reflect the social demographics of the region (Nedbank Group, 2011). However, research on earnings in South Africa as a whole shows that in 2008 whites earned, on average, 4.4 times more than Africans; the authors of a paper on employment and inequality outcomes in South Africa speculate that this is probably due to the skills differential between races which is "still an exclusionary factor for Africans entering higher paid professions" (Leibbrandt et al., n.d, p. 11). A report by FASSET (n.d. p. 13) notes the absence of black people qualified as accountants, statisticians, auditors and economists--professions which are not only pivotal within the sector but which are needed within management. The 2010-2011 annual report of South Africa's Commission for Employment Equity (2011, p. 16) shows that the finance and business services sector was one of the three worst performing sectors in relation to the representation of Africans and, in particular, of African and coloured women at the professionally qualified level.

Statistics on the number of part-time employees in South African banks are not readily available and the Labour Force surveys do not contain statistics on hours worked by industry. However, figures published in a report by Leibbrandt et al on Employment and Inequality Outcomes in South Africa (n.d., p. 14) demonstrate a general trend in South Africa towards the use of part-time labour and further note that this increase in casual labour is predominantly amongst the African population. In addition, labour force statistics for the first quarter of 2012 showed a much higher proportion of women than men worked fewer than 35 hours per week and a higher proportion of women compared to men were not entitled to receive paid leave (SSA, 2012, tables 3.7, 3,8).

A number of the intrinsic factors (such as the demographic profile of banking sector employees, the nature of work and reward within the banking sector) and extrinsic factors (such as the wider macroeconomic climate within which banks operate at the time of writing) referred to above are all potential causes of work-related mental stress among bank employees. This, in turn, gives rise to occupational health and safety concerns. The next section of this paper explores definitions of work-related mental stress, before going on to consider some of the causes of work-related mental stress in the banking industry, the incidence of mental stress within the Australian and South African sectors respectively, and the institutional and legal response to those stressors.

PART TWO: WORK STRESS

The term 'stress' is often used colloquially to refer to symptoms arising from any number of potential causes and very often individuals describe themselves as being 'stressed' or 'under stress'. In medical terms, however, stress may be viewed rather more as analogous to a cause (rather than a symptom) of various health-related problems, which may be physical or mental in nature and which may or may not amount to a diagnosable condition (such as depression). McGrath defines stress as "a (perceived) substantial imbalance between demand and response capability, under conditions where failure to meet demand has important (perceived) consequences" (McGrath, 1970, p.20). The International Classification of Diseases (ICD) provides a definition of various types of stress-related conditions and it is safe to state that stress is regarded as a serious mental condition (WHO, 2011).

Stress within the Australian banking sector

As noted in the Compendium of Workers' Compensation Statistics (2009), while bank workers experience relatively low levels of work injury they do experience relatively high levels of work stress (Safe Work Australia 2007, Part E). So-called mental stress claims present challenging issues as recent data suggests such claims are costly to employers (5) and that:

.... mental stress consistently had the longest median time lost from work: around 10 working weeks. This was more than double the median of 3.8 weeks for all serious claims in 2005-2006. The high median time lost for Mental stress claims resulted in those claims also having the highest median payments: $15,500 in 2005-2006, more than double the median for all claims of $6,100. (Safe Work Australia, 2009, p. 26).

The reasons why the Australian finance industry and, by extrapolation, the banking sector has such a high rate of mental stress claims are no doubt multi-causal. The banking industry receives considerable publicity for bank hold-ups and more recently ATM hold-ups (Kretowicz, 2008, p7; Houlihan, 2007, p. 27; ABC, 2008; SMH, 2008) which in some cases result in serious physical and/or psychological harm to banking industry workers. However, such claims may no longer be the prime cause for concern in relation to workplace stress in the banking industry (The Age, 2003) and a number of successful prosecutions of banks by the Finance Sector Union (FSU) in relation to bank robberies, leading to improvements in bank security, may be one of the reasons for this (Bunn & Guthrie, 2009). Perhaps more central to the bank work stress issue is the nature of the work and the industry itself. Indeed, mental stress claims related to work pressure accounted for between one-quarter to just over one-half of all mental stress claims across jurisdictions in the 2007-2008 period (Productivity Commission, 2010).

As outlined above there have been significant structural changes to the Australian banking sector in the last two decades; these changes are ongoing, with threats to move work offshore being the common theme (FSU, 2009(b), FSU, 2009(c)). Recent research by Medibank Private Australia has shown that workplace change invariably creates pressures within the workforce to achieve certain outcomes and outputs and that an insecure work environment is a major stressor (Medibank Private, 2008). Those pressures in turn often lead employees to experience 'stress' or to describe themselves as 'stressed'. For the Western Australian Branch of the FSU, the issue of work-related stress has become prominent in recent years and this can be related to a number of different factors. According to Lynnaire Stacey, Secretary of the Western Australian Branch of the FSU, the Union identifies as a cause of increased stress, the level of 'downsizing' in the industry over recent years due to changes in management practices and work intensification (L. Stacey, pers. comm. 18 March 2009). Indeed, a National FSU (2008) review for the financial year 2007-2008 identifies inadequate staffing in the finance sector as a cause of increased pressure and a higher workload. (6) This review reports on the results of an audit among 300 branches of the National Australian Bank which revealed that 70 per cent of the 1,000 plus respondents interviewed reported an increase in workload (FSU, 2008). A survey conducted by the National FSU of over 2,000 of its members showed that 66 per cent of respondents agreed that their work/life balance suffered because of work targets and 88 per cent agreed that the higher their work targets, the higher their stress (FSU, 2009(d)). This report also asserted that "[j]ust the act of setting an unreasonable or unachievable target can create stress" and that "[t]he exacerbation of this stress, when targets aren't met or are unilaterally increased, can have a serious impact on workers' health" (FSU, 2009 (d), p.4). Restructuring of an organisation, such as deciding to move operations offshore, or in terms of its business being acquired or merged with another, may also be a cause of distress for workers.

Data provided by WorkSafe on accepted workers' compensation claims in the 2007-2008 period reveals that the second most common category of mental stress claims, after work pressures, is harassment in the workplace (Productivity Commission, 2010, p. 284). This data also reveals that women are more likely than men to be affected by work stress (Productivity Commission, 2010, p. 284), which is of particular significance for the banking industry given that over 50 per cent of the workforce are female, as noted above (FSU, 2005). It follows that work stress in the banking industry is likely to be a gendered issue, not simply an issue of workplace safety.

Stress within the South African banking sector

As has been discussed, the South African banking sector shares a similar recent history with the Australian banking sector in that the last 20 years have been characterised by change and restructure, as well as a change in service delivery, particularly through an increased reliance on technology and mobile banking. Additionally, and as also discussed, the global macroeconomic conditions extant in 2012 may be being weathered relatively well by South African and Australian banks alike, but nevertheless create general uncertainty and still pose a significant risk to these banks in general and, in turn, the security of employment within the sector. Given these similarities it seems very likely that South African bank workers will be subjected to very similar stress factors as their Australian counterparts. Indeed, research published by Fenwick and Tausig (1994) found that macroeconomic changes do have a bearing on stress levels experienced by workers due to the impact of those changes on day-to-day work routines and structures. The researchers conclude that:
   Whether consciously or not, firms appear to pass any increased
   uncertainty in the marketplace to their workers in the form of
   increased job demands, decreased decision latitude, and increased
   job security. (p.274)


Stress around security of employment within the South African banking sector is also likely to be experienced by employees who work on a part-time basis and who may feel more vulnerable, particularly if they enjoy fewer labour law protections than their permanent colleagues (Leibbrandt et al., n.d. p. 14). Indeed Leibbrandt et al. (n.d., p. 14) note that many employers employ part-time or casual labour to overcome some of the constraints imposed by labour legislation.

Between 2006 and 2008 assessments were conducted on behalf of Sasbo--a union representing members across South Africa's finance industry--to assess the stress levels and work-related wellbeing of Sasbo members across the big four banks (Rothman & Brand-Labuschagne, 2009). The results of these assessments of nearly 3,000 employees in the sector identified exhaustion as the primary driver of stress symptoms and found that exhaustion was, in turn, related to a number of stressors in the work environment, not least among which was workload (Rothman & Brand-Labuschagne, 2009, slide 32). Significantly, exhaustion levels reported by participants in the survey exceeded those in many other sectors, including the wider finance industry (Rothman & Brand-Labuschagne, 2009, slide 32). The study also found that 18 per cent of participants had experienced stress-related ill-health and 14 per cent serious stress-related ill-health, compared to figures of 10 per cent and 8 per cent respectively as against the wider finance industry benchmark. The study authors concluded that the participants were clearly operating in a "somewhat demanding environment reflecting higher job demands" (Rothman & Brand-Labuschagne, 2009, slide 30), and recommended that a number of priority areas be addressed by the banks in order to ensure the wellbeing of their workers. Areas identified as a priority were ensuring workload balance, promoting workload equity and human capability, and enhancing capability in terms of the management of high performance staff and the need to promote teamwork and facilitate skills development among workers (Rothman & Brand-Labuschagne, 2009, slide 32). The fact that South African banks generally report a more or less generalised skills shortage may impact on workload levels and, in turn, work-related stress experienced by bank employees. Indeed these skills shortages are recognised as a source of pressure across all levels of employment in South African companies generally (Van Zyl, 2002).

A study by Paruk and Singh (2012), without making any reference to the Sasbo study discussed above, concluded that whilst it is evident that there are inherent stresses in the banking sector, the amount of stress experienced by South African bank employees is not known and neither is the way in which any such stress that does exist is managed. Paruk and Singh (2012) themselves conducted a relatively small-scale study, involving only 40 respondents in one division of one of South Africa's major commercial banks. In total, just over 47 per cent of respondents rated their stress levels as being high or very high and just over 44 per cent reported moderate stress levels (Paruk & Singh, 2012, p. 5372). This research found that one of the significant risk factors for stress among the banking employee respondents was the ambiguity of credit-granting policies and procedures which employees were required to interpret and apply (Paruk & Singh, 2012, p. 5372). This was reported as a stressor by over 60 per cent of respondents (Paruk & Singh, 2012, p. 5372). Though it is difficult to extrapolate too widely from these findings (limited as they are in terms of the number of respondents and the fact that all of the respondents were drawn from one division of a particular bank) it is interesting to reflect on this particular source of stress. Given that South African banks themselves report being concerned about the complexities of compliance and regulation (PwC, 2012, p. 35), it is unlikely that policies around credit-granting, central as they are to the bank's function, will reduce in complexity. Perhaps, though, the skills shortage reported by the banks themselves as existing in relation to the understanding of risk (PwC, 2011, p. 51), impacts upon the way in which these policies are drafted and/or the ability of staff to interpret and apply them. If so, this is another way in which the skills shortage experienced by the South African banks may be impacting on stress levels of workers within the sector.

As noted above, the second most common category of mental stress claims in the Australian financial services industry is harassment in the workplace (Safe Work Australia, 2007, Part E). The study of South African bank employees conducted by Paruk and Singh (2012, p. 5373) found that the majority of respondents did not report moderate or greater levels of stress arising from relationships in the workplace, though for approximately 26 per cent of respondents work relationships were a source of stress. For those respondents reporting work relationships as a source of stress it is possible that harassment in the workplace may be an issue, though this is not explicit in the findings presented.

Another potential cause of work-related stress within the Australian and South African banking sectors alike is discrimination or perceived inequity related to gender and/or race. That work stress may be directly related to gender and ethnicity has been recognised in a number of studies (Din-Dzietham et al., 2004; Hemingway et al., 2001; Swanson, 2000). As has already been noted, black women account for a disproportionately small number of managers within South African banks. One of the big-four South African banks reported in 2011 that men accounted for over 73 per cent of top and senior management positions, despite the fact that women accounted for 57 per cent of the bank's workforce. In relation to the ethnic background of bank employees, the same bank reported over four times the number of white managers compared to black (Nedbank Group, 2011).

The extent to which any one potential stressor does actually cause an individual to experience stress and the way in which any such stress manifests itself has been shown to depend on a number of factors, including a person's ethnicity and socio-economic status (Van Zyl, 2002). Marmot (2006) describes evidence linking psychosocial and biomedical risk factors to health to a person's socioeconomic status and noted that a person's position in the social hierarchy bears a significant correlation with their well-being and longevity, those lower in the hierarchy being more negatively affected by psychosocial risk factors. This may be particularly significant in the context of South Africa; data discussed above reveals that a disproportionately low ratio of black people is employed in the higher paid senior management and professional positions within the banking sector. Additionally, the greater proportion of jobs (approximately 59 per cent) in the banking sector is in the clerical and administrative category (BASA 2010, Table 10.1), which are typically paid at lower levels than managers and professionals.

One factor impacting on the wellbeing of South African bank employees, and not specifically addressed in the Sasbo survey, is the threat of violence. This has also been noted as a factor affecting Australian bank workers, though a factor of possibly decreasing significance given the reported decline in recent years in the number of hold-ups (The Age, 2003). In South Africa, by contrast, cash-related crime increased significantly between 2003-2004 until 2009-2001 with the number of reported cases of cash-in-transit robberies increasing from 192 in 20032004 to 1412 in 2009-2010, and the number of bank robberies increasing from 54 to 93 in the same period. For the 2010-2011 period, however, the number of cash-in-transit crimes and bank robberies decreased significantly on the previous period, by 18.7 per cent and 58.1 per cent respectively (South African Government, 2011, p. 9, p. 20). The number of ATM bombings, however, rose by 61.5 per cent over the same period (South African Government, 2011, p. 20). In 2011 the results of a survey of the psychological well-being of 50 South African bank employees, were published. The results indicated a marked difference in the psychological well-being of those employees who handled cash as compared to those who did not; in particular, those employees who handled cash experienced work-related stress (Mutsvunguma & Gwandure, 2011). The study's authors speculate that this work-related stress may be caused by perceptions of a lack of control or protection in respect of the incidence of cash-related violence against them (Mutsvunguma & Gwandure, 2011, 434). It is also notable that South African banks report being very concerned about criminality and fraud, with much of this concern related, in turn, to technology and the fear of cybercrime (PwC, 2012, p. 35). As has recently been noted, fraudsters are increasingly sophisticated and, in some cases, even target bank employees directly (PwC, 2012, p. 35). Whether fear of being targeted or the impact of the bank's prevention measures (which include employee training and numerous policies and procedures) (PwC, 2012, p. 35) increase stress among bank employees is an area which merits further investigation.

The workers' compensation regime in South Africa, discussed in Part Four below, does not explicitly allow for compensation in respect of psychiatric illnesses, including mental stress claims. Although compensation has been paid under the scheme for psychiatric illness in some limited situations referred to below, mental stress claims are generally excluded from the workers' compensation scheme. Accordingly, more generalised data on the number of work-related mental stress claims among South African workers is difficult to come by.

It is important to note that banks in both Australia and South Africa have statutory obligations to ensure the health and safety of workers and to provide a safe system of work. For this reason it is important to consider the extent to which banks may be under a statutory obligation to have in place systems and policies that promote not only physical health, but psychological and psychosocial health, and the extent to which those obligations may impose duties to prevent or manage issues around work-related stress.

PART THREE: OCCUPATIONAL HEALTH AND SAFETY

Statutory duties imposed upon employers under Occupational Health and Safety (OHS) legislation complement the common law duty of care (discussed further below) and this principle is accepted by courts both in Australia (7) and in South Africa. (8)

OHS in Australia

Until 1 January 2012 each State and Territory, as well as the Commonwealth, had enacted its own health and safety laws resulting in some significant inconsistencies across the nation and a not inconsiderable burden on employers operating in more than one jurisdiction (see, eg, Productivity Commission, 2004). In 2008 the Council of Australian Governments signed an Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA), the aim of which was to achieve harmonisation of OHS laws across the country. Under the IGA all jurisdictions committed to adopt model work health and safety legislation and, as at 1 January 2012 new laws came into force in New South Wales, Queensland, the Australian Capital Territory, the Commonwealth and the Northern Territory (Safe Work Australia, 2012). At the time of writing, South Australia, Victoria and Western Australia are yet to pass harmonisation legislation and Tasmania passed legislation which came into effect in 2013 (Hedger & Seton, 2012; Safe Work Australia, 2012).

An outline of all the various changes effected by the new OHS laws is beyond the scope of this paper. However, of significant note is the fact that the definition of health in s. 4 the model Work Health and Safety Bill 2011 expressly includes both physical and psychological health (Parliamentary Counsel's Committee 2011 (a)). The explanatory memorandum to the Model Work Health and Safety Bill 2011 notes that the legislation will expressly cover "psychosocial risks to health like stress, fatigue and bullying" (Parliamentary Counsel's Committee 2011 (b)). With the exception of the Victorian Occupational Health and Safety Act 2004, s.5 there had been no definition of health in any of the OHS legislation prior to 1 January 2012, though legislative regulations in some did expressly refer to psychological hazards (see, eg, Occupational Health and Safety Regulation 2001 (NSW); Occupational Health, Safety and Welfare Act 1986 (SA)). (9) As noted in the Second Report to the Workplace Relations Minister's Council submitted as part of the National Review into the Model Occupational Health and Safety Laws (Commonwealth of Australia, 2009, p. 61), the context in which the term 'health' was used in the preharmonisation OHS legislation was not ordinarily understood to include social well-being, which belied the fact that work-related psychosocial hazards and injuries have increased substantially over the years, in line with the changing nature of work (Commonwealth of Australia 2009, p. 61).

The inclusion of specific reference to psychological health in the new model legislation may not, in practice, impose any greater duty upon an employer than already existed under OHS legislation. This is because even though (with the exception of Victoria) there was no definition of 'health' in the pre-harmonisation legislation, a duty for employers to manage psychosocial hazards is implied in all jurisdictions (Productivity Commission, 2010). Nevertheless, it was certainly not clear-cut that employers had an obligation in respect of psychological risks to workers' health such as stress, bullying and fatigue and one objective of the model legislation is to put that matter 'beyond doubt' (Northern Territory Government, 2011) (10). Aside from clarifying the obligations in respect of the health and safety of workers, much of the significance of the new legislation lies in raising awareness of psychological and psychosocial work-related health issues. As noted by Ciccarelli, Goddard and Merritt (2009, p. 33), management processes around work-related mental stress generally tend to be less developed than those relating to physical and environmental hazards and legislative guidance on the management of mental stress hazards is not well established. It may be expected that legislative guidance on the management of psychosocial issues, including bullying, stress and fatigue, will increase following the greater prominence given to psychological health, including psychosocial health issues, in a wider range of OHS legislation.

It is nevertheless true to say that awareness of psychosocial issues such as work-related stress and bullying or harassment is already fairly developed in the Australian finance industry. Many banks, including the big four, already have in place specific polices dealing with issues of bullying and harassment in the workplace. In addition, several banks have implemented programs to promote well-being and assist employees in dealing with stress and related issues. The Commonwealth Bank, to take just one example, works in partnership with BeyondBlue (an organisation devoted to the support of sufferers of depression) to offer various workshops and information on well-being and mental health issues, such as depression (Commonwealth Bank, 2009). Other banks have their own in-house programs of a similar nature. This level of awareness is no doubt due in part to the fact that, as noted in Part Two above, the finance industry experiences a high number of workers' compensation claims related to mental stress. The FSU also plays a significant role in awareness raising around issues of occupational violence, as well as bullying (see, eg, FSU, 2011(a)).

Given the above, banks may be better placed than many other organisations to meet their obligations under occupational health and safety legislation in respect of their workers' psychosocial health. However, risks to psychosocial health arising from work stress may be particularly complex risks to identify and respond to (Ciccarelli, Goddard & Merritt, 2009). This is significant given that one important change brought about by the new legislation is that the duty of officers is extended to impose a positive duty to exercise due care and diligence to ensure compliance with the OSH law (Model Work Health and Safety Bill 2011, s 27). Ironically, it is possible that the extension of an officer's responsibility under the new regime may in turn lead to an increase in the work stress experienced by those individuals occupying officer roles. This is something which banks need to take account of at an organisational level and when forward planning their strategic response to the model OHS legislation.

OHS in South Africa

Under the Occupational Health and Safety Act 85 of 1993 (OHSA), s.8 (1) an employer in South Africa must provide, as far as is reasonably practicable, a safe working environment for its employees that is without risk to their health. Health is not defined in the OHSA, though 'healthy' is defined in section 1 as "free from illness or injury attributable to occupational causes". The general duty of employers to ensure a safe place of work is broken down into a number of specific duties under the legislation, including the duty to establish, as far as reasonably practicable, what hazards to the health and safety of persons are attached to any work performed (OHSA, s8(2)(d)). OHSA defines hazard as "a source of or exposure to danger" and 'danger' is, in turn, defined to mean "anything which may cause injury or damage to persons or property" (OHSA, s1). Therefore, although the OHSA does not specifically refer to psychological risks or hazards and there is no definition of health, the provisions would seem wide enough to encompass a duty to protect workers from psychosocial risk factors, such as stress, which may prove injurious to health, whether physical or mental health.

In addition, the Basic Conditions of Employment Act 75 of 1997, s7 stipulates that an employer must regulate the working time of each employee in accordance with the OHSA, with due regard to the health and safety of employees and having due regard to the family responsibilities of employees. (11)

The remainder of this paper will consider the availability of workers' compensation for mental harm, including mental harm arising from work-related stress.

PART FOUR: WORKERS' COMPENSATION

Many countries throughout the world employ a no-fault system of compensation, designed to provide financial recompense for people suffering from injury or disease where there is some employment connection. Naturally, each jurisdiction has somewhat different rules as to what types of injury or disease are compensable and what conditions must be met before compensation is payable. A brief overview of the compensation schemes in Australia and South Africa follows.

Workers' compensation in Australia

All Australian jurisdictions provide access to compensation as a statutory remedy for work-related stress. These statutory remedies in the main provide for limited income support, medical and rehabilitation expenses, but not generally for pain and suffering or long term economic loss. With the exception of South Australia and Northern Territory some form of common law remedy for employer-based negligence allows workers to proceed against an employer for common law remedies.

In Australia, workers' compensation claims are broadly divided into two groups: claims for injury or claims for disease and disease-related conditions. To establish a workers' compensation claim, an individual will need to show that they have suffered an injury or disease which is work-related. In the case of injury claims it is necessary to show that a particular workplace event or incident (such as a hold-up or an ATM bombing) led to a sudden physiological change to the worker. It is not necessary to show that the event occurred whilst the worker was actually working, as long as it was within the scope of employment. (12) Workers' compensation legislation in Australia does not define stress, because stress in itself is not a medical condition, although as noted above, it may be a cause or a 'trigger' of a medical condition. Claims in which an individual has suffered a recognised injury or disease which has been caused by or contributed to by a work-related stressor are generally referred to as 'mental stress' or 'work-related stress' claims as a form of shorthand.

Proving a stress-related injury, therefore, usually requires proof that the medical condition arose out of a specific event usually traumatic in nature, for example, physical assaults, bank robbery, train accidents or the witnessing of these events. Conditions contracted by a gradual onset or process will not normally fall within the definition of injury but may fall under compensable work-related disease (Roberts v Dorothea Slate Quarries Co Ltd [1948] 2 All ER 201). As to the issue of the distinction between injury and disease and work contribution, the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 reviewed the many authorities in this area and found that in general terms the distinction seems to be that an injury by accident relates to an event which precipitates a sudden change in the physiology of the worker, whereas a disease relates to a condition of gradual onset.

The definition of disease is similar under most Australian compensation schemes. For example, disease is defined under the Workers' Compensation and Injury Management Act 1981 (WA) s5 (1) as "any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development". In Comcare v Mooi, (1996) 137 ALR 690 a decision dealing with the Safety Rehabilitation and Compensation Act 1988 (Cth), the issue of a disease/ailment was considered. It was held by Justice Drummond that if a worker was to claim compensation for a stress-related disease, they must prove that in terms of effects and symptoms, "he is in a condition which is outside the boundaries of normal mental functioning and behaviour" (p.694). In order for a disease to be compensable, there must be an employment contribution to the actual development of the condition. This is in marked contrast to the situation where the claim is made for a personal injury where such a claim may be compensable even if there is no active work contribution.

Accepted workers' compensation claims for workplace stress rose steadily until 2003-2004 (Productivity Commission, 2010, p. 281), prompting all Australian jurisdictions to introduce legislation which aimed to reduce the overall number of claims for workplace stress by excluding such claims in certain circumstances. These legislative changes increased the threshold work contribution requirement and excluded claims arising from reasonable management or administrative action such as the transfer, redeployment, dismissal, disciplinary action or retrenchment of a worker. In some jurisdictions stress-related conditions arising from reasonable performance appraisal were also excluded (Guthrie, 2007). As a result the number of claims for mental stress declined over the period to 2007-2008, but still remained at 34 per cent above the total number recorded in the 1997-1998 period (Productivity Commission, 2010, p. 281). The effect of legislative changes is that claims for workplace stress are difficult and costly to litigate given that they are extensively scrutinised and often hotly contested (Lippel, 1999; Niemeyer, 1991). The outcome is most often a delay in treatment, with consequent extended periods off work and increased medical and other costs (Roberts-Yates, 2003; Strunin & Boden, 2004; Parliament of the Commonwealth of Australia, 2003). Some employees may choose to avoid this process entirely by claiming sick leave, especially in those occupations where such leave is accrued from year to year. In some cases banks, who are self-insured and administer their own claims procedures, have responded to the high incidence of work stress claims by putting in place extended sick leave entitlements in an attempt to reduce the incidence of workplace absence and reduce workers' compensation costs. In effect, some banks, notably the National Australia Bank, have reduced the burden of claims procedures by accepting that work stress is a complex legal issue and litigation of stress claims may aggravate a worker's health condition. By adopting a managed sick leave approach the National Bank has attempted to address the issue of absence from work rather than focus on legal complexity (Robinson, 2003; FSU, 2011(b)). Unlike a workers' compensation claim, sick leave entitlements are not dependent upon proof of work contribution but generally do require the provision of a medical certificate.

Most banks in Australia are self-insurers for workers' compensation purposes (WorkCover, 2008). In general terms this means that these organisations do not obtain indemnity insurance to cover workers' compensation liabilities from either a private insurer or a central government administered insurance fund. Instead when an employer becomes self-insured it effectively assumes direct responsibility for the statutory workers' compensation obligations and processes and administers claims internally. The significance, and possible advantage, of banks being self-insurers is that the close relationship between bank workers and their employer is maintained in the event of a workplace injury or disease and is not interposed by an insurer who is not familiar with the worker's environment.

However, the fact that banks are directly responsible for paying the cost of workers' compensation claims has a number of other important consequences. Firstly, some banks have put in place work health or wellness programs designed to retain staff and promote fitness and health. Such programs on the one hand may be aimed at greater productivity and staff retention, but on the other hand may also represent a form of compliance behaviour and a 'band-aid approach' to the more complex issue of workplace stress. Secondly, banks collect their own data on work absences, although they are bound to share this with workers' compensation scheme administrators. Thirdly, wellness programs and workers' compensation often become merged so that data in relation to work-caused absences may become blurred. A bank may be focussed on reducing workplace absence, no matter what the cause, and may put in place schemes which provide incentives for workers to remain at work or disincentives for workers to make workers' compensation claims (see, eg, Robinson, 2003; FSU, 2011(b)).

Some employers in the banking industry may take innovative approaches to workplace health and safety. For example, as noted above, National Australia Bank for the past five years has implemented a range of schemes which extend the entitlements of workers to sick leave in a calculated effort to reduce workplace absence This has involved allowing workers to have extended sick leave as an alternative to making claims for workers' compensation. Given the administrative requirements and standard of proof required for certain workers' compensation claims, some workers choose to take sick leave as an alternative to commencing a claim. The benefits of managed sick leave schemes which put in place early return to work programs are that they may reduce compliance costs and the overall duration of claims (Robinson, 2003; NAB, 2008). Similar initiatives have been adopted by other banks which have introduced workplace well-being programs that focus on providing workers with facilities which allow them to achieve and maintain fitness. Overall fitness has been shown to be a determinant of productivity, so that whilst employers may outlay funds to cover facilities they reap the benefits of a more productive workforce and one that is also less likely to make workers' compensation claims (OHS Alert Newsletter, 2008).

So far as data collection in relation to workplace injury and disease is concerned, wellness schemes and extended sick leave programs have the capacity to distort data collection in relation to particular medical conditions. As noted above, through a series of legislative developments workplace stress claims have been made progressively more difficult since the mid-1990s. Workers may find it convenient, less time-consuming and financially advantageous to avoid lodging a workers' compensation claim and instead claim sick leave. As a consequence, official data collection in relation to workplace stress may be understated. Where bonus systems are determinants of performance and incentive payments, the ability of banking institutions to control workplace health and safety data is important, given that such systems may be a driver of work-related stress. In effect it may make the detection of workplace stress more difficult and amorphous as it is not reflected in official publicly available workers' compensation data and is often not reflected in the annual reports of banks. (13)

As has been seen, there may be reasons why workers avoid lodging a workers' compensation claim at all, and even when such a claim is available there will be limits to the maximum amount that can be claimed (see, eg, WorkCover, 2012). For this reason, an employee who suffers from symptoms related to work stress may seek other grounds upon which to base a claim for income support or damages from an employer, including for breach of the employment contract (for example, if their job requires them to work longer hours or take on work of a different nature than that envisaged under the contract) or in tort (usually, alleging that the employer was negligent). Whilst such actions are generally less commonplace than the incidence of workers' compensation claims, they have become evident in the last decade and it is suggested that given the financial climate extant at the time of writing, insofar as that climate may contribute to the stress factors present for those working in the banking sector, such actions may grow in significance.

Workers' compensation in South Africa

As in Australia, a system of no-fault compensation for work-related injury and disease also operates in South Africa. The Compensation of Occupational Injuries and Diseases Act 1993 (COIDA) provides for no-fault compensation (14) in the event that an employee sustains an injury in accidents that arise out of and in the course of their employment, or where an employee contracts an occupational disease. For compensation under COIDA to apply there must be a causal connection between the accident and the employee's employment. Accident is defined as "an accident arising out of and in the course of an employee's employment and resulting in personal illness, accident or the death of the employee" (COIDA, s1). Cases have established that the meaning of the word 'accident' itself is to be given its ordinary meaning and refers to "an unlooked-for mishap or an untoward event which is not expected or designed" (Nikosia v Workmen's Compensation Commissioner 1954 3 SA 897 (T) 900E-F). The occurrence of an accident is judged from the perspective of the person who is injured and the time, place and circumstances of an accident must be ascertainable. However, posttraumatic stress disorder (PTSD) has, in at least one instance, been classed as an accident within the meaning of COIDA, even though the disorder did not arise as the result of any one specific incident (see below for an instance where it was recognised as an occupational disease) (Urquhart v Compensation Commissioner (2006) 27 ILJ 96 E). Whether gradual-onset psychiatric illnesses can be classed as an accident under COIDA is arguable, but even if so, the wording of the legislative provisions can create practical difficulties in relation to claims made in respect of such illnesses (Du Plessis, 2004).

Occupational diseases are listed in Schedule 3 of COIDA and there is a presumption that when a worker is involved in any of the work referred to in Schedule 3, the contraction of any of the listed diseases is causally related to employment within that occupation, and a worker will therefore be entitled to compensation under the scheme (COIDA, s.65 (1) (a) and s.66). On the other hand, if an employee contracts a disease which is not listed in Schedule 3 then compensation may also be payable but it will be for the employee to establish that the disease arose out of and in the course of employment (COIDA, s65(1)(b)). The diseases listed in Schedule 3, although diverse, do not expressly include conditions which arise as a result of psychological or psychosocial stressors in the workplace. Posttraumatic stress disorder (PTSD) has, in at least one case, been classed as an 'occupational disease' (Odayar v Compensation Commissioner (2006) 27 ILJ 1477 (N)). However, it has been argued that the substantive framework for psychiatric injuries needs to be clarified, that psychiatric injuries should be classified as occupational diseases and that legislative guidance must be provided on the application of the system to such injuries (Du Plessis, 2009, pp. 1492-1493). The nexus between stress-related illness and incapacity as a ground for dismissal is also firmly established in South African law (see, eg, Van Jaarsveld 2005, p. 622).

SUMMARY AND RECOMMENDATIONS FOR FURTHER RESEARCH

Workers in the banking sector in Australia and South Africa experience relatively high levels of work-related mental stress. Statistics on the number of mental stress claims for the Australian finance industry, of which the banking sector is part, reveal that workers in the industry experience the highest number of mental stress claims across all industries in Australia. Data available in South Africa reveals that workers in the banking sector experience, on average, higher levels of work-related mental stress than their colleagues in the wider finance industry, as well as in many other sectors. These claims are significant due to the long duration of absence that typifies such claims as well as the large number of workers employed in the sector; this is particularly significant in South Africa given that the financial services industry was the country's third largest employer in 2011.

The incidence of occupational stress within the banking industry may be attributed to a number of different factors, not least among which are the nature of the industry itself, significant and on-going restructuring of the industry which entails increased work pressures, a change in work practices, and the economic uncertainties extant at the time of writing. Neither should work-related stress as a result of physical violence, threats and criminality be discounted, but it is probably more of an issue in South Africa than in Australia, simply due to the higher number of bank robberies and hold-ups in the former jurisdiction, as well as the significant concern of South African banks about fraud and criminality. A number of other drivers of stress within the banking sector have been noted, including the threat of harassment in the workplace, and discriminatory work practices. In the South African context, mental stress related to interpersonal relationships and workplace discrimination within the banking sector is understudied. However, given that many of the large banks have not met their diversity targets (in terms of employing a workforce representational of the societal demographics) the authors speculate that this is very possibly a driver of stress among workers across the sector.

Employers in South Africa and Australia have general obligations under occupational health and safety laws, as well as the general law, to provide a safe and healthy workplace. As some Australian jurisdictions have introduced new work health and safety laws, which are explicit in their application to psychosocial health, it will be important to monitor the extent to which this legislation may, over time, have an impact on the health of workers, particularly on the incidence of mental stress. Although many Australian banks have already developed employee well-being programs, further investigation of the cost of sick and related leave to the banking industry is warranted. This is particularly important given that the large banks in Australia are self-insurers and in most instances have the capacity to 'remove' data in relation to occupational injury and disease from the public arena.

Data on the extent of work-related mental stress among workers in the South African banking system is relatively scarce. One study conducted by an industry union assessed close to 3,000 bank workers, and a number of other smaller scale studies have been conducted and are discussed in Part Two of this paper. However, a representational picture across the wider banking sector on the prevalence of work-related mental stress would better inform the development of law, policy and employee well-being programs. This, in turn, has the capacity to impact significantly on the health of South Africans, given the number of workers employed in the finance industry. In addition, given the apparent gender and racial imbalance in senior level management within the banking sector, the authors recommend focussed research into th3e extent to which issues relating to diversity in the workplace may be a driver of stress. Given that research establishes a link between socioeconomic status and the prevalence and effect of psychosocial risk factors, including work-related stress, it will be useful for South African banks to monitor employee wellbeing in line with changing demographics amongst employees in the sector.

Workers' compensation schemes are widely used worldwide, although the make-up and scope of such schemes vary significantly. In South Africa employers finance the statutory scheme and are consequently exempted from additional civil law claims (also for damages not covered under the compensation scheme, for example, loss of future earnings, pain and suffering, etc.). It has, however, been shown that due to the externalisation of work more South African workers are found in atypical employment and that these workers may, in principle, have claims against a compensation fund, the employer and/or the client. By contrast, in addition to claims for workers' compensation, for which Australian banks are self-insurers, Australian employers may, in some cases, be exposed to claims brought in negligence and contract. Whilst the Australian workers' compensation system recognises mental stress claims (generally as diseases) the extent to which these claims are compensable under the South African regime is less clear-cut. Some commentators have recommended clarification of the workers' compensation legislation in this respect (Du Plessis, 2009), and the authors of this paper also believe that this should be a law reform priority. This is particularly important given the widely reported skills shortages in South Africa and the attendant need to retain staff and ensure a healthy, productive workforce.

In light of the concerns expressed by South African banks over skills shortages within the sector, the need to attract and retain staff is a priority. It is for that reason, among others, that one author has described the need for a system of stress measurement and management in South Africa as an absolute necessity, and not simply a 'cherry on the top' as, in that author's words, it is in more affluent and industrialised countries (Van Zyl, 2002). The authors of this paper submit, however, that global economic conditions and particular uncertainty in the banking sector prevailing at the time of writing make the measurement and management of work-related mental stress across the whole sector--whether in developed or developing nations--a priority for further research and action.

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CASES

Australia

Comcare v Mooi, (1996) 137 ALR 690

Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRC 406

Presdee v Commonwealth Bank of Australia [2005] NSWIRC 389

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

England and Wales

Roberts v Dorothea Slate Quarries Co Ltd [1948] 2 All ER 201

South Africa

Du Pisanie v Rent-A-Sign (Pty) Ltd 2001 2 SA 894 (SCA)

Gerber v Algorax (Pty) Ltd (1999) 20 ILJ 2994 (CCMA)

Media 24 Ltd v Grobler (2005) 26 ILJ 1007 (SCA)

Nikosia v Workmen's Compensation Commissioner 1954 3 SA 897 (T)

Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC)

Odayar v Compensation Commissioner (2006) 27 ILJ 1477 (N)

Oosthuizen v Homegas (Pty) Ltd 1992 3 SA 463 (OPD)

Urquhart v Compensation Commissioner (2006) 27 ILJ 96 E

Van Deventer v Workmen's Compensation Commissioner 1962 4 SA 28 (T)

LEGISLATION

Australia

Model Work Health and Safety Bill 2011

Occupational Health and Safety Regulation 2001 (NSW) (now repealed)

Occupational Health and Safety Act 2004 (Vic)

Occupational Health, Safety and Welfare Act 1986 (SA)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Workers' Compensation and Injury Management Act 1981 (WA)

South Africa

Basic Conditions of Employment Act 75 of 1997

Compensation of Occupational Injuries and Diseases Act 1993, 130 of 1993

Occupational Health and Safety Act 85 of 1993

Anna Bunn

Robert Guthrie

Curtin University, Australia

Nicola Smit

North-West University, Potchefstroom, South Africa

(1) Total Australian-owned bank profits for the 2010-2011 financial year end were over $24 billion according to the Australian Prudential Regulation Authority (APRA) 2011, see 'Statistics: Quarterly Bank Performance', June 2011 accessed www.apra.gov.au on 17 January, 2012.

(2) As at 24 October 2012 there were thirteen other Australian owned banks listed on the APRA website besides the big four, though that number includes the Bank of Western Australia (trading as Bank West) which is a a subsidiary of Commonwealth Bank. See 'APRA (a).

(3) Note that the 'finance sector' includes not only banks and other ADIs, but also other financiers and financial asset investors.

Equal Opportunity for Women in the Workplace Agency, Women in the Workforce by Industry, 2012 at

http://www.eowa.gov.au/Research%20and%20Resources/20-062012%20Women%20in%20the%20workforce%20- %20industry June 2012%20v0.2.pdf

(4) The move towards the implementation of the Fair Work Act 2009 (Cth) may alter the banks mindset on this aspect of industrial relations as the Fair Work Act 2009 (Cth) requires the parties to enter into negotiations in good faith, and provides unions with a range of mechanisms to pursue new agreements. It remains to be seen whether banks will attempt to incorporate the bonus systems into new collective agreements under the Fair Work Act 2009 (Cth).

(5) The longer duration of mental stress claims, which include mental stress arising from workplace violence and harassment, correlates with the findings of Campolieti et al in a Canadian study (which did not include finance industry workers) which found that the duration of absence from work associated with incidents of workplace violence is about 50per cent longer than for absence due to other workplace injuries and diseases, see Campolieti, M, Goldenberg, J & Hyatt, D 2008, 'Workplace Violence and the Duration of Workers' Compensation Claims', Industrial Relations Vol 63 No. 1, pp. 57-84. McDonald et al noted that many workers who suffered post-traumatic stress disorder following violent events at work have significant difficulty in returning to work and many did not return to work with their pre-accident employer: Macdonald, HA, Colotla, V, Flamer, S & Karlinsky, H 2003, 'Posttraumatic Stress Disorder (PTSD) in the Workplace; A Descriptive Study of Workers Experiencing PTSD Resulting from Work Injury', Journal of Occupational Rehabilitation, Vol. 13 No. 2, pp. 63-77.

(6) See also Myeltt, T and Stubbs, J 2006, 'Awareness of OHS Rights and Responsibilities: An Evaluation of a Trade Union Training Campaign', Employment Relations Record, 6(1), pp. 1-22 referring to responses to a survey of bank employees conducted in 2003 in which between 50%-73% of respondents (depending on the size of the workplace) cited work pressures due to staff shortages as a source of stress.

(7) For examples of the application of OHS legislation to the banking industry in Australia see Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRC 406 and Presdee v Commonwealth Bank of Australia [2005] NSWIRC 389.

(8) See Van Deventer v Workmen's Compensation Commissioner 1962 4 SA 28 (T); Oosthuizen v Homegas (Pty) Ltd 1992 3 SA 463 (OPD); Du Pisanie v Rent-A-Sign (Pty) Ltd 2001 2 SA 894 (SCA); Gerber v Algorax (Pty) Ltd (1999) 20 ILJ 2994 (CCMA); Media 24 Ltd v Grobler (2005) 26 ILJ 1007 (SCA); Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC).

(9) For example, the Occupational Health and Safety Regulation 2001 (NSW) imposed an obligation on employers to identify foreseeable hazards including hazards arising from 'work practices, work systems and shift working arrangements (including hazardous processes, psychological hazards and fatigue related hazards)'. The Occupational Health, Safety and Welfare Act 1986 (SA) refers to bullying and 'inappropriate behaviour towards an employee', section 55A.

(10) Work Health and Safety (National Uniform Legislation) Implementation Bill 2011 (NT), Second Reading Speech, accessed www.austlii.edu.au 12 January, 2011.

(11) This is a so-called "core" right and any variation must be contained in a collective agreement concluded in a bargaining council (i.e. at sectoral level) and must be consistent with the purpose of the Act and not reduce the protection afforded employees by section 7.

(12) The Australian courts have established that a wide scope of activities may be regarded as 'arising out of or 'in the course of employment'. Such activities include the worker doing something reasonably required by the employer. This is so even if it is not part of their normal duties and even if the injury occurred in an interval between active work. See Kavanagh v Commonwealth (1960) 103 CLR 547. Injuries which occur during intervals or interludes which occur in the course of employment where the employer had induced, or encouraged, the employee to spend that interval or interlude at a particular place or in a particular way may also be compensable. See Hatzimandis v ANI Corp Ltd (1992) 173 CLR 473.

(13) We were unable to detect with any meaningful accuracy the rate of sick leave in any banking institutions from their annual reports.

(14) It must be acknowledged that fault continues to play a role since an employee can claim increased compensation where the employer was in fact negligent.
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