9 SEPTEMBER 2015 – KATHERINE MORRIS AND LUCY BOCHENEK

Is it possible to comply with the safety aspects of the Petroleum & Gas (Production & Safety) Act (Qld)?

Petroleum & Gas (Production & Safety) Act 2004 (Qld)

• From the start of the commissioning stage of operating plant onwards

Regulation of health and

safety

• Key positions:• Operator • Executive Safety Manager • Site Safety Manager

Exposure to personal liability

• View that operator should be an individual Active regulator

Who can be an operator and what are the duties of an operator?

Appointment of individual/natural person is not required

Duties of operators are prescriptive and include (amongst other things): • Developing, implementing and maintaining a safety

management plan• Formal risk assessments • Training and supervision programs • Emergency procedures • Record management • Fulfilling requirements under WHS Act

Can an individual satisfy the duties in the P&G Act? (cont.)

Obligations require range of expertise

and personnel to

fulfil

Challenging for one

person to be accountable

for all requirements

Consequences of P&G Act for safety and the industry

Highly prescriptive legislation

inconsistent with other jurisdictions

Difficult to achieve safety outcomes and risk of corporate and

personal liability

Inconsistencies across jurisdictions

Queensland• P&G Act • Work Health and Safety Act 2011 • Prescriptive duties

South Australia • Work Health and Safety Act 2012 • Not included – operator, executive safety

manager, site safety manager, safety management plan

• Duty holders have flexibility in satisfying duties

Consequences of inconsistent legislation

Companies and individuals exposed to prosecution

Undermines health and safety

Organisations and individuals are placed in a precarious position

Reform to the P&G Act

Opportunity for reform

Reform should involve • ensuring consistency with

other WHS legislation across Australia (especially for multi-jurisdictional operations)

• clarity in appointment to statutory positions

Technical examples

Examples of inconsistencies across jurisdictions

Level of risk

• QLD• Acceptable level of risk • Level of risk must be within

acceptable safety limits and as low as reasonably practicable

• Prescriptive list of how to achieve an acceptable level of risk

• OTHER JURISDICTIONS• Eliminating or minimising risks so

far as is reasonably practicable • What is reasonably practicable is

a balancing act of a variety of factors

Training of workers

• QLD• Skills assessment • Training and supervision

program, including assessing new skills, monitoring performance and ensuring retention of skills

• OTHER JURISDICTIONS• Provision of information, training,

instruction or supervision necessary to protect persons from risks to their health and safety arising from the work carried out, so far as is reasonably practicable

Examples of inconsistencies across jurisdictions (cont.)

Records of Safety Management Plans

• QLD• “Resulting records” for a SMP• Must be kept for 7 years

• OTHER JURISDICTIONS• Only applies to construction

work • Copy to be kept until project is

completed• In the event of a notifiable

incident, copy of the plan must be kept for 2 years after the incident occurs

Incident notification

• QLD• Death of a person• Injury requiring medical

treatment • Range of other circumstances,

including emergency alarm activation, fire, incident with potential to cause a fuel gas shortage, damage to property

• OTHER JURISDICTIONS• Death of a person • A serious injury or illness to a

person • Dangerous incident

Examples of inconsistencies across jurisdictions (cont.)

Consultation with other parties

• QLD • If there is proposed, or likely to be, interaction with other operating

plant or contractors in the same vicinity, or there are multiple operating plant with different operators on the same tenure or authority, SMP must include a description of the proposed or likely interactions and how they will be managed; identification of risks that may arise as a result of the proposed or likely interactions and how the risks will be controlled; and identification of the safety responsibilities of each operator

• OTHER JURISDICTIONS • If more than one person has a duty in relation to the same matter,

each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter

Opportunity for reform: Clarity as to appointment of statutory positions

Operator – current position• Person responsible for management and safe operation

of operating plant, but not a person who is subject to the control of another person

• P&G Act contemplates appointment of a corporation or natural person as ‘operator’ but regulator prefers an individual

• Companies better placed to discharge obligations of operator

Suggested reform • Operator can be the corporation • Clear appointment of operator provision which defines

who the operator is

Opportunity for reform: Clarity as to appointment of statutory positions (cont.)

Executive Safety Manager – current position• Operator is default ESM or the senior managing

officer of the corporation responsible for the management and safe operation of the plant

Suggested reform

• If a duty of individual managers is required, duty similar to “officer” duty under WHS legislation could be introduced

Questions?

Katherine Morris

Partner, Sydney

T +61 2 9931 4872

M 0414 095 944

E katherine.morris@gadens.com

Lucy Bochenek

Senior Associate, Sydney

T +61 2 9035 7243

E lucy.bochenek@gadens.com