Change is coming
Preparing 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
Commonwealth:
NT: Commenced
Commenced
Qld: Commenced
WA: Little public commitment
No legislative action
Legislation delayed until at
least 2013 (if introduced at
all)
NSW: Commenced
ACT: Commenced
SA: Legislation delayed. Bill has
not passed Upper House
despite three attempts.
Vic: Not likely to be
introduced in current form
Tas: To commence 1 January 2013
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Health and safety laws: Overview
Occupational health
and safety laws:
State based
(or Federal),
to be harmonised
Industry-specific legislation:
Includes Mines, Petroleum.
Work mode specific
legislation:
Example, heavy vehicle
‘chain of responsibility’ laws,
electrical safety laws
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Part 2:
Key concepts and new terms
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Legal issues following a workplace incident
Workplace injury or ‘near miss’
Workers’
compensation
issues
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
Other legal
claims
Consequences:
Consequences:
Investigations by regulator (Worksafe, etc)
Likely to require ‘negligence’.
May give rise to allegations against
company/individuals and criminal charges
Claim for damages by private
parties
May give rise to monetary fines
(likely uninsured)
Money to injured worker, or
other parties
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Overview of the Model Act
Introduction 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 Laws
Primarily 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 Laws
Duty 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 Laws
Maximum 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 Practice
WHS Consultation, Cooperation and Coordination
Safe 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 Practice
WHS Consultation, Cooperation and Coordination
Safe 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
Duty to
‘workers’
Factors that tend to strengthen the
connection to Australia (and so increase the
Factors that tend to lessen the connection
to Australia (and so decrease the likelihood of a
likelihood of a legal duty under the WHS Laws)
legal duty under the WHS Laws)
Australian management team exercise a
high degree of control over the work being
undertaken and how the work is performed.
Foreign management team exercise control
over the work activities being undertaken by
overseas based employees and contractors.
Australian management team closely
supervises the day to day activities of the
work.
Australian management team do not
supervise the work being undertaken.
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.
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
Duty in
respect of
workplaces
Factors that tend to strengthen the
connection to Australia (and so
Factors that tend to lessen the
connection to Australia (and so
increase the likelihood of a legal duty under
the WHS Laws)
decrease the likelihood of a legal duty under
the WHS Laws)
The workplace is owned or rented by
the entity either directly or indirectly.
The workplace is owned/rented by a
third party.
Australian management team
effectively undertakes work (through
workers engaged or directed by it)
from that workplace.
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 ).
Australian management team
exercises management or control over
the workplace itself .
Australian management team dictate
that workers will operate from a
particular place.
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 Deployment
http://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 Deployment
http://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 27
Safe Work Australia, 27 September 2011
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Education
An understanding of the nature
of the operations of the entity
and generally the hazards and risks
associated with those operations
Up-to-date knowledge of OHS
laws and compliance requirements
Reporting
Ensuring appropriate resources and
processes to enable the identification
and elimination or control
of specific OHS hazards and risks
A process for receiving, considering and
ensuring a timely response to
information regarding incidents,
identified hazards and risks
Verifying
Due diligence: What should officers do?
Verification that risks and hazards
are being appropriately controlled,
and that legal duties are being met,
and ensuring ‘continual compliance’
PCBU duties
Personal
oversight
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Contact
Steve Bell
Senior Associate
Freehills
0419 351 022
(03) 9288 1236
steve.bell@freehills.com
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www.freehills.com