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EXECUTIVE MANAGEMENT OHS SEMINAR

Due Diligence for Community Sector Leaders

PRESENTATION PART 2Overview of OHS harmonisation,

OHS obligations for organisations and individuals; Due Diligence in OHS; consultation

8 September 2010The Arts Centre, Melbourne

Harmonisation timetable

April 2010: SWA Council

approval of final version of model Work Health and

Safety Act

2010 20122011

By late June 2010: Report on Draft regulations for

WRMC

Late October 2010: Regulations and draft codes of practice released by WRMC for 4

months for public comment

Early 2011: Comments considered and regulations and codes of practice finalised and approved

May/June 2011: SWA and WRMC

agree and approve model regulations

July 2011→: Education and

transition in jurisdictions

Mid 2011→: Model Act passed

progressively in each jurisdiction

Commencement of model Act and

Regulations no later than December

2011

Introduction – A new approach

• Removing legal labels and pigeon-holes for duties of care and obligations

• Focus on cause and effect instead

• All who are involved in work being done will have a duty of care – no loop-holes or gaps

• Positive duty of care for officers to exercise due diligence

• More emphasis on inclusion of all in practical OHS management

• Greater clarity – aimed at work participants rather than lawyers and regulators

• Enforcement and sentencing aimed at OHS outcomes, not just punishment

What will change• Significant changes in all jurisdictions will include

• Moving from employment as basis for duties, obligations and rights

• New positive duty of care for officers, with due diligence defined

• Broadened consultation obligations – vertical and horizontal

• Broadened union right of entry

• Greater protection against discrimination and coercion

• Emphasis on graduated enforcement but higher penalties

• Easier modification of notices

• Increased powers of questioning and reduced rights of individuals

• No reverse onus of proof (NSW, Qld) or union prosecution (NSW)• Broader HSR powers (some States)

The reach of OHS legislation

Which of the following statements is true? ( you can choose more than one)

1. OHS laws are restricted to what happens at a workplace

2. OHS laws apply to the public safety consequences of work being done – wherever these consequences occur

3. OHS laws apply only to what happens while

work is being done

Scope, objects and principles

• To apply to all industries unless other legislation justified

• Continues to apply to public safety consequences of work

• Maintains connection to work as key to the Act’s application

• All who are involved in the conduct of work, or contributing things for it to occur, will have a duty of care and should be involved in OHS risk elimination or minimisation

• All duties are concurrent and non-delegable

Not for profit organisations and volunteers

Which of the following statements are true?(you can choose more than one )

1. Not for profit organisations cannot be liable under OHS laws

2. Not for profit organisations can only be liable for what happens to their direct employees, not volunteers

3. Not for profit organisations will have obligations under the model Work Health and Safety Act

4. Volunteers have a duty of care and can be prosecuted under OHS legislation

5. Volunteers will owe a duty of care under the model Work Health and Safety Act

The duties of care – cause and effect

Primary Duty of Care

Person conductingbusiness or undertaking

Specific classes of dutyholders

Relevant StandardDuties associatedwith the activity

Nature of theactivity

Operation of the business orundertaking

Organisational decisionmaking and governance

Work activities (includingsupervision)

Circumstantial attendance atthe workplace (i.e. visitors)

Officers’ Duty of Care

Workers’ Duty of Care

Duty of Care of Others(i.e. at a workplace)

Reasonably practicable

Due diligence

Reasonable care

Reasonable care

Relationship between recommended duties of care

Duty of person conducting business or undertaking

• To replace current duties of – employer (to employees)– employer conducting business or undertaking (to others)– self-employed person (to others)

• Will apply to not for profit organisations

• Duty owed to your ‘workers’ and ‘others’– ‘workers’ include volunteers and contractors– ‘others’ include the public

• Sub-sets/further elements of duties for PCBUs for specific activities

• Everyone contributing to work to have a duty of care – can be more than one in relation to specific activities

Duties of care - Where does your organisation fit in?

The simplified version

CommunitySector

Organisation

Volunteers

Occupiers

Contractors

Employees

Suppliers Public

Reasonably practicable defined

Similar to the Victorian definition, but improved

Clearer reference to– that which is, or was.. reasonably able to be done…– taking into account and weighing up all relevant matters

• Likelihood of hazard or risk• Degree of harm• What you know or ought to know about hazard, risks, controls• Availability and suitability of ways of eliminating or minimising risk• Cost – after assessing the extent of the risk and the available ways

(of control), the cost of the available ways.. including whether the cost is grossly disproportionate to the risk…

• ‘…highest level of protection.. as is reasonably practicable..’ – Simply makes clear that you start with what can be done and

only do less where it is reasonable to do so

Do you currently have in place

what is needed to meet the primary

duty of care?

Moving on from the organisation

What about individuals?

Personal obligations

• As an officer

• As a ‘worker’– Same as current law– Duty to exercise reasonable care– Includes compliance with reasonable

instructions, policies and procedures– What is reasonable is determined by your role,

influence and what a reasonable person in your position would be expected to do

Officers

• s9 Corporations Law definition of officer

• Positive duty of care to exercise due diligence

– a new way of drafting, but consistent with current law

– aimed at corporate governance

• ‘due diligence’ will be defined, for the first time in relation to health and safety

Who will be an officer?

Which of the following will be officers with a duty of care under that model Act?

(you can choose more than one)

1. Directors and board members

2. Members of the executive team

3. Line managers

4. Supervisors

5. Volunteers with senior management responsibilities

6. Other senior managers

Who will be an officer?• Directors, company secretary, partner, officeholder • “Shadow directors”• Those involved in making decisions affecting the whole

or a substantial part of the organization (sole criterion for Crown)

• Those with capacity to affect significantly the organisation’s financial standing

• Those on whose instructions or wishes directors are accustomed to act

• Receivers, managers, administrators, liquidators

NOT VOLUNTEERS

BUT – a volunteer or officer may be a worker or other person at the workplace and owe duties as such

Officers of your organisation

• Who will be officers and for what purposes?

• Interaction between divisions of alliances, federations etc

• Second issue is what will specific officers be responsible for?

• If not an officer, will duty of ‘worker’ require similar conduct?

Due diligence defined

What is done ?

Answer only of you think you are an officer

(you can choose more than one)

1. I am aware of the significant hazards and risks from the operations of my organisation

2. I am regularly advised of emerging OHS issues

3. I am regularly advised of OHS legal obligations of the organisation and any changes

4. I am advised on and consider OHS resource needs

5. I check to ensure that the organisation has in place measures to

comply with those obligations

Keys to due diligence

The right structure • The right people in the right places, authorised and accountable

The right process• Information gathering and reporting processes that enable officers

to understand and make decisions

The right information• Reporting on the things that identify specific requirements and

demonstrate the means for compliance and sustained and improved performance

True

False

Consultation

The organisation must now consult employees, contractors and volunteers on relevant OHS issues and processes

True

False

Consultation

The model Act will require the organisation to consult with employees, contractors and volunteers on relevant OHS issues and processes

Engagement of all in WHS

• Obligation of PCBU to consult so far as reasonably practicable • with workers

- all who are working in the business of the PCBU, not just direct employees

- Includes volunteers

• Optional multi-PCBU, multi-workplace HSRs

• Issue resolution processes and default procedures to ensure engagement of workers and their representatives with PCBUs

Do you currently have in place processes to comply with this?

Duties of care - How can you make this work?

CommunitySector

Organisation

Volunteers

Occupiers

Contractors

Employees

Suppliers Public

Dealing with other parties

The model Act will require you as an organisation to do which of the following with others involved in what you do:

( you can choose more than one )

Consult them

Co-operate with them in what they want to do

Co-ordinate our activities and theirs

“Consult, co-operate, co-ordinate”Relevant consultation and co-ordination should occur:

(you can choose more than one )

At the start of a project

At the start and at key milestones

When anything significant happens (e.g. risk identification,

incident, new information)

With everyone every single day

It depends on the circumstances

Duty to consult, co-operate and co-ordinate

• PCBU, so far as reasonably practicable, to consult with, co-operate with

and co-ordinate activities with other persons with a duty over the same

matter

• E.g. contractors, sub-contractors, supplier, occupier

• This is new in the law, but represents good practice

• A key element of effective contractor management systems

• Consistent with concurrent duties

• Critical to meeting the primary duty requirement to ensure safety outcomes

Do you currently have in place processes to comply with this?

Who should you ‘consult, co-operate and co-ordinate’ with?

HOW?

Yes

No

Uncertain

What is done?

Does your organisation (or organisations you assist or deal with, typically) have processes for effective consultation, cooperation and co-ordination?

The questions you should be asking yourself

• What is the relevant activity or issue?

• What duty or obligation do I have?

• What do I need to know to ensure I meet the duty?

• Who else is involved in the activity?

• How may each of us affect OHS in relation to the activity?

• How do our activities intersect and support or compromise OHS activities of each other?

• What should we do to communicate and work together effectively for health and safety?

Protection against discrimination and coercion

Protection for all workers and those in commercial arrangements from discrimination based on WHS role or action

Protection to extend to unlawful coercion

Criminal offence – if WHS role or action was ‘dominant reason’

Civil action – If WHS role or action was a substantial reason– No double dipping

• Recommended ‘reasonable precautions’ defence not included