Change is comingPreparing for health and safety harmonisation

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Today’s agenda

Part 1: Where are we now, OHS laws overview (5 minutes)

Part 2: What’s new (15 minutes)

Part 3: Particular issues arising for overseas travel (15 minutes)

Part 4: Personal responsibility (10 minutes)

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Part 1:Where we are now

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Context: Current status of Model Laws

WA: Little public commitmentNo legislative actionLegislation delayed until at least 2013 (if introduced at all)

Tas: To commence 1 January 2013

Vic: Not likely to be introduced in current form

SA: Legislation delayed. Bill has not passed Upper House despite three attempts.

Commonwealth:

Commenced

NSW: Commenced

Qld: Commenced

ACT: Commenced

NT: Commenced

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Health and safety laws: Overview

Work mode specific legislation:Example, heavy vehicle ‘chain of responsibility’ laws, electrical safety laws

Industry-specific legislation:Includes Mines, Petroleum.

Occupational health and safety laws:

State based (or Federal),

to be harmonised

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Part 2:Key concepts and new terms

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Legal issues following a workplace incident

Workers’ compensation

issues

Workers’ compensation

issues

Workplace injury or ‘near miss’Workplace injury or ‘near miss’

Consequences:

Strict liability (blame not an issue)

Money to injured worker, in some cases to dependants

Obligations to return to work

Occupational health and

safety issues

Occupational health and

safety issues

Other legalclaims

Other legalclaims

Consequences:

Investigations by regulator (Worksafe, etc)

May give rise to allegations against company/individuals and criminal charges

May give rise to monetary fines(likely uninsured)

Consequences:

Likely to require ‘negligence’.

Claim for damages by private parties

Money to injured worker, or other parties

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Overview of the Model ActIntroduction to the Act

General duties for businesses, penalties

General duties for individuals and ‘due diligence’

Incident notification

Consultation

Health and safety representatives and employee representation

Statutory notices, internal review

Prohibition on discrimination

Right to cease work, etc, Right of entry

Powers of the regulator

Legal proceedings, and enforcement

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Overview of Model Regulations

Preliminary

Representation and Participation

General Workplace Management: Facilities, PPE, First Aid, Emergency Plans

Hazardous Work: Noise, Manual Handling, Confined Spaces, Falls, High Risk Work, Abrasive Blasting, Electrical Work, Diving Work

Plant and Structures: Upstream duties, Registration

Construction Work: Design, Principal Contractor, Induction Training

Hazardous Chemicals: Upstream Duties, Lead, Asbestos

Major Hazard Facilities: Registration and licensing, Duties of Operators

Mines: yet to be agreed

General

Schedules

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The Primary Duty of Care

• Duty holder? ‘Person conducting a business or undertaking’

• Owed to? Workers (engaged, caused to be engaged or whose activities are influence / directed by the PCBU) and other persons

• Owed when? (for workers) while workers are at work in the business or undertaking and (for others) when work is being carried out by the business or undertaking

• Duty? To ensure the health and safety of workers and other persons, so far as reasonably practicable

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Legal comparisons, old and new

Old laws Model LawsPrimarily based around the employment relationship, with others ‘deemed’ or associated with primary duties

Primary duties owed to all ‘workers’ who ‘perform work for’ the entity

Contractor management a key issue

Various ‘upstream duties’ Clarifies upstream duties, manufacturers, suppliers, constructors

Standard of duty varies across different jurisdictions

All jurisdictions will require duties to be discharged ‘so far as reasonably practicable’

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Legal comparisons, old and new

Old laws Model LawsDuty to consult with employees Duty to consult, co-ordinate and

co-operate with other duty holders as well as ‘workers’

Some jurisdictions prohibit unlawful discrimination on safety grounds

All jurisdictions will prohibit unlawful discrimination on safety grounds

Some detail expressed in Regulations

Significant detail expressed in Model Regulations on a range of hazards and processes

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Legal comparisons, old and new

Old laws Model LawsMaximum penalties around $1million per offence

Maximum penalties:

$3 million for Category 1 offence $1.5 million for Category 2 offence

Right of entry provisions variable across jurisdictions

Right of Entry harmonised.

Right to enter for safety breach, but also to ‘consult’ with workers.

Right to silence enshrined in most national laws

Right to silence abolished, with limited ‘use immunity’

(That is, greatly increased powers of investigators when things go wrong)

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Consultation, co-operation and coordination between entities

Consultation• The objective of consultation is to make sure everyone associated

with the work has a shared understanding of what the risks are, which workers are affected and how the risks will be controlled. The exchange of information will allow the duty holders to work together to plan and manage health and safety.

Co-operation• Co-operation may involve implementing arrangements in accordance

with any agreements reached during consultation with the other duty holder and involve not acting in a way that may compromise what

they are doing for health and safety.

Code of PracticeWHS Consultation, Cooperation and CoordinationSafe Work Australia, August 2011

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Consultation, co-operation and coordination between entities

Coordination• Co-ordination of activities may include the scheduling of work

activities so that each duty holder carries out their work separately. It may require work to be arranged in a way that will allow for necessary precautions to be in place or pre-conditions met before particular work is done.

• Where work is not effectively co-ordinated, the parties should consult further to determine what should be changed.

Code of PracticeWHS Consultation, Cooperation and CoordinationSafe Work Australia, August 2011

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Part 3:Particular issues arising for overseas travel

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Overseas application: Do the duties apply?

Generally speaking duties under the Model Laws may apply in relation to workers travelling abroad in respect of steps which are or should be taken regarding health and safety risk management, which occur partly or wholly within Australia. This means that duties owed under Australian workplace safety laws likely:

apply to Australian entities, in respect of their workers travelling for work purposes or who are based in overseas jurisdictions; and

may potentially apply to Foreign entities who have workers travelling for work or who are based in Australia.

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Overseas application: Do the offence provisions apply?

• Criminal Code Act, 1995 (the Criminal Code) will apply to offences under the WHS Act.

• Section 15.1 of the Criminal Code states that persons will not be guilty of offences under the WHS Act unless the conduct constituting the commission of the offence occurs:

– wholly or partly in Australia, or on an Australian aircraft/ship; or

– wholly outside Australia and the result of the conduct occurs wholly or partly in Australia or on an Australian aircraft/ship; or

– wholly outside Australia but the offender is an Australian citizen or a body incorporated by or under an Australian law.

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Legal factors for and against: Duty to ‘workers’

Duty under WHS Act

Factors that tend to strengthen the connection to Australia (and so increase the likelihood of a legal duty under the WHS Laws)

Factors that tend to lessen the connection to Australia (and so decrease the likelihood of a legal duty under the WHS Laws)

Duty to ‘workers’

Australian management team exercise a high degree of control over the work being undertaken and how the work is performed.

Australian management team closely supervises the day to day activities of the work.

The relevant worker is based in Australia, but seconded, or deployed on temporary assignment overseas.

The relevant work is being undertaken on behalf of the Australian management team.

Decisions that would affect the safety of the work being undertaken by the worker are made in Australia.

Foreign management team exercise control over the work activities being undertaken by overseas based employees and contractors.

Australian management team do not supervise the work being undertaken.

The Worker is a foreign national and permanently based overseas.

The work is being undertaken on behalf of a local management team with little relationship to operations in Australia.

The work being undertaken rarely requires contact with Australian office.

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Legal factors for and against

Duty under WHS Act

Factors that tend to strengthen the connection to Australia (and so increase the likelihood of a legal duty under the WHS Laws)

Factors that tend to lessen the connection to Australia (and so decrease the likelihood of a legal duty under the WHS Laws)

Duty in respect of workplaces

The workplace is owned or rented by the entity either directly or indirectly.

Australian management team effectively undertakes work (through workers engaged or directed by it) from that workplace.

Australian management team exercises management or control over the workplace itself .

Australian management team dictate that workers will operate from a particular place.

The workplace is owned/rented by a third party.

The workplace is under the management or control of third party (e.g. maintenance of the property - such as checking the fire extinguishers is undertaken by other personnel ).

The work and the location of where it is to be undertaken is determined by foreign management.

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What does the regulator say?

“When considering sending workers overseas organisations need to:

• identify any threats relating to the travel • evaluate these threats in consideration of the traveller's

profile • set an acceptable level of risk relating to the intended

travel • implement strategies to reduce the level of risk while

monitoring for any changes in threats or a breakdown in the mitigation strategy. ”

Comcare Website, International Deploymenthttp://www.comcare.gov.au/safety__and__prevention/health_and_safety_topics/international_deployment

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What does the regulator say?

“No travel event is without risk. However, the level of risk planning may be scaled to the assessed risk of the mode, purpose and destination of travel.

If travelling to a destination assessed as low risk, a less comprehensive assessment may substitute provided due consideration is given to emergency management.

If something does happen to workers while overseas organisations must be prepared to respond.”

Comcare Website, International Deploymenthttp://www.comcare.gov.au/safety__and__prevention/health_and_safety_topics/international_deployment

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WHS Laws: Risk mitigation

In order to manage this risk, employers should:

1. Identify duties applicable to workers travelling or based in Australia and overseas and relevant stakeholders

2. Review existing safety management systems, and undertake a gap analysis

3. Update policies and procedures as necessary

4. Consider whether current consultation arrangements are adequate to allow for consultation with workers about the risks associated with their work

5. Identify who are ‘officers’ of the business or undertaking and develop a process of exercising due diligence

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Specific issues for consideration

• Hazard identification and control procedures: Among other things, these should contemplate risks to workers when they are travelling or based in overseas jurisdictions.

• Training Procedures: Should ensure the provision of necessary information, instruction and training for workers to understand the risks peculiar to their changed working environment, and to perform their work safely and in safe conditions;

• Welfare facilities: Overseas workers should have access to adequate facilities (including access to drinking water, washing and eating facilities);

• Emergency plans: Should be reviewed to ensure that the business can respond to emergencies involving overseas workers. At the least, this may include evacuation procedures and processes for ensuring access to appropriate medical assistance as required.

• Procedure for isolated workers: Should be developed to ensure that workers remote from access to medical assistance are provided with effective means of communication.

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Part 4:‘Due diligence’

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From Safe Work Australia

A business or undertaking is operated (governed) by individuals who, through their decision making, influence the specific activities and behaviours that determine the success or failure of health and safety initiatives and compliance by the PCBU with WHS laws. These individuals through their decisions and behaviour strongly influence the culture of the business or undertaking and accountability within it. They make important decisions on the resources that will be made available for the purposes of work health and safety and the policies that will be developed to support compliance.

Interpretive Guideline — Model Work Health And Safety Act, The Health And Safety Duty Of An Officer Under Section 27Safe Work Australia, 27 September 2011

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Due diligence: What should officers do?

Up-to-date knowledge of OHS

laws and compliance requirements

An understanding of the nature of the operations of the entity

and generally the hazards and risks associated with those operations

Ensuring appropriate resources and processes to enable the identification

and elimination or control of specific OHS hazards and risks

Verification that risks and hazardsare being appropriately controlled,and that legal duties are being met,and ensuring ‘continual compliance’

A process for receiving, considering and ensuring a timely response to

information regarding incidents, identified hazards and risksR

epor

ting

Ver

ifyin

gE

duca

tion

PCBU duties

Personal oversight

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Contact

Steve BellSenior AssociateFreehills

0419 351 022

(03) 9288 1236

steve.bell@freehills.com

www.freehills.com