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Safety Institute of Australia ACT Division

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					FINANCIAL INSTITUTIONS   ENERGY   INFRASTRUCTURE AND COMMODITIES   TRANSPORT TECHNOLOGY




 Safety Institute of Australia
 ACT Division
 Michael Tooma
 Partner
 Norton Rose Australia
 25 February 2010
Agenda

•   Model Act in a Snapshot
•   Safety Duties
•   Enforcement
•   Penalty regime
•   Preparing for Model Act
Overview – Road to Harmonisation

• Model OHS Act – Workplace Health and Safety Act – represents the most
   significant reform in OHS in over 30 years. This is the culmination of a
   process which began in April 2008 with the commissioning of a National
   Review into Model OHS Laws.
• The Advisory Panel consisted of:
          – Robyn-Stewart Crompton
          – Commissioner Stephanie Mayman
          – Norton Rose Australia Partner Barry Sherriff
• The panel delivered its first report on 31 October 2008 and its final report on
   30 January 2009.
• Draft Model Laws were released for public comment in
 October 2009.

• Public consultation process closed on 9 November 2009.

• WRMC approved final draft of the Model Laws on
 11 December 2009.

• Laws will commence on 1 January 2012.
  Preliminary   Consultation       Regulator
                                                General




                                                  Legal
Safety Duties    Victimisation   Enforcement   Proceedings




                   Right of                      Notices
Notification        entry        Compliance      Review
                 Change of Approach to Duty

                                          Controller of                                                                                        Controller of
                                           workplace                                                                                            workplace




         Installers of                                                      Controller of                    Installers of                                                       Controller of
           plant or                                                       plant, fixtures or                   plant or                                                        plant, fixtures or
          structures                                                           fittings                       structures                                                            fittings




                                                                                                                                               Person
                                                                                                                                             conducting
                                         Employer                                                                                            a business
 Suppliers of                                                                        Designers of    Suppliers of                                or                                       Designers of
     plant,
substances or
                                                                                         plant,
                                                                                    substances or
                                                                                                         plant,
                                                                                                    substances or                            undertaking                                      plant,
                                                                                                                                                                                         substances or
  structures                                                                          structures      structures                                                                           structures




                          Importers of                    Manufacturers                                                       Importers of                     Manufacturers
                              plant,                         of plant,                                                            plant,                          of plant,
                         substances or                    substances or                                                      substances or                     substances or
                           structures                       structures                                                         structures                        structures
  Person Conducting a Business or
  Undertaking
                      Alone



                               Non-
            Profit   PCBU      profit



                      Joint
Volunteer
Safety Duties                                                                                           • Ensure so far as is reasonably
                                                                                                          practicable the health and safety at
                                                                                                          work of:

                                                                                                              • Workers engaged or caused to
                                                                                                                be engaged by the person
                                                                                                              • Workers whose activities in
                                                Controller of
                                                 workplace                                                      carrying out work are influenced
                                                                                                                or directed by the person
                                                                                                              • Workers of a prescribed class
              Installers of                                                     Controller of
                plant or                                                        plant, fixtures
               structures                                                         or fittings           • Ensure so far as is reasonably
                                                                                                          practicable that the health and safety
                                                                                                          of other persons is not put at risk
                                                Person                                                    from work carried out as part of the
                                              conducting                                                  conduct of the business or
                                              a business                                                  undertaking.
       Suppliers of                               or                                     Designers of
           plant,
      substances or
                                              undertaking                                    plant,
                                                                                        substances or
        structures                                                                        structures




                               Importers of                     Manufacturers
                                   plant,                          of plant,
                              substances or                     substances or
                                structures                        structures
            1.
            A person is a worker if the person
            carries out work in any capacity for a
 Officer    person conducting a business or
            undertaking, including work:
            (a) as an employee
            (b) as a contractor or sub-contractor
            (c) as an employee of a contractor or sub-
 Worker     contractor
            (d) as an employee of a labour hire
            company who has been assigned work in
            the person's business or undertaking
            (e) as an outworker
            (f) as an apprentice or trainee
            (g) as a student gaining work experience
            (h) as a volunteer.
Person at
            2.
   the      The person conducting the business or
workplace   undertaking is also a worker if the
            person is an individual who carries out
            work in that business or undertaking.
 Officer


            A workplace is a place where work is
 Worker     carried out for a business or
            undertaking, and includes any place
            where a worker goes, or is likely to be,
            while at work.

            Place includes:
            (a) vehicle, ship, boat, aircraft or other
            mobile structure
Person at   (b)any installation on land, on the bed of
   the      any waters or floating on any waters.

workplace
            Section 9 of Corporations Act
            Includes officers of public sector




 Officer



 Worker



                            Due diligence
Person at
   the
workplace
Officers’ Duty

•Proactive duty to exercise due diligence – that is, it is a duty and not
 just a liability.

•Duty applies regardless of breach by body or risk to health and safety.
 Officer must exercise due diligence to ensure that the body complies
 with its duty. Failing to have systems in place to ensure compliance is
 arguably a breach of that duty.

•The compliance is with the duties under the Act not a standard or
 another reference document. That is, it has a legal context or
 grounding compliance with which must be verified.
                        Resources and   Implementation
                         processes to    of Processes


       The nature of
      the operations
                                                         Timely response
         and risks
                                                           to incidents
      associated with
     those operations




Knowledge of                        Due                          Processes for
                                                                     Legal
OHS Matters
                                 Diligence                        compliance
Enforcement Options

•   Non-disturbance notices
•   Improvement notices
•   Prohibition notices
•   Regulator remedial action
•   Injunctions
•   Enforceable OHS undertakings
•   Prosecutions
Enforcement - Prosecutions

•   Penalties
•   Adverse publicity orders
•   Orders for restoration
•   Community service orders
•   Court Ordered OHS Undertaking
•   Injunctions
•   Training orders
Penalty Regimes

• There are three categories of offences with the highest
  category attracting a maximum penalty of $3 million.

• The following table represents the penalties for
  breaches of the safety duties
Table of Penalties
Category     Description                        Maximum penalty


Category 1   Most serious cases – breach        Corporation = $3 million
             the primary (general) duty         Individual = $600,000 Imprisonment – up to
             involving recklessness and         five years
             serious harm to a person or        Workers and other persons = $300,000
             risk of such harm.
                                                Imprisonment – up to five years

Category 2   Breach of the primary (general) Corporation - $1.5 million
             duty where serious harm or the Individual officers = $300,000
             risk of it without the element of Workers and other persons = $150,000
             recklessness.

Category 3   Breach of the duty that does       Corporation = $500,000
             not involve high risk of serious   Individual officer = $100,000
             harm.                              Workers and other persons = $50,000
So, what should you do to prepare?
- the Norton Rose top 10
1. Undertake a legal risk analysis
2. Undertake a gap analysis
3. Review, revise and supplement policies and procedures
    (remember current consultation obligations)
4. Implement – including training and ongoing review
5. Review contracts – many will operate under the new laws
6. Design and implement interface co-ordination processes and plans
7. Develop effective representation and consultation processes
8. Develop robust issue resolution processes
9. Ensure effective processes for union right of entry
10. Review and revise all aspects of corporate governance in WHS to
    ensure effective management and ‘due diligence’ compliance
What you can do to comply
The Inner Core – Safety Leadership

Commitment
Resources
Implementation
The Second Layer – Operational
Defences

Design
Premises
Plant
Substances
Process
Procurement
The Outer Core – Human Factors

People
Contractors
Suppliers
Clients
System Supports – Human Factors
Systems

Training
Consultation
Supervision
Incentives
Center Support – Planning for the
Unthinkable

Critical risk controls
Tail End Support - Responding


Emergency management
System Foundation – System
Health
System performance assessment and review
Due Diligence

Due diligence framework
Leadership

Culture

Minimum standards for underlying
   system:
   • AS 4801
   • Legal compliance

Auditing requirements

Performance reporting

Benchmarking
Components of a Safety Culture


                               Reporting
                                Culture




           Just                                   Informed
          Culture                                  Culture
                               Safety
                               Culture


                    Flexible               Learning
                    Culture                 culture
Components of a Safety Culture
                                                         Involves creating a safety
                                                         information system that collects,
                                                         analyses and disseminates
                           Reporting                     information from incidents and
                            Culture                      near-misses as well as from regular
                                                         proactive checks on the system’s
                                                         vital signs.


       Just                                   Informed
      Culture                                  Culture
                           Safety
                           Culture


                Flexible               Learning
                Culture                 culture
Components of a Safety Culture
                                                         An informed culture requires a
                                                         climate where people are prepared
                           Reporting                     to report their errors and near-
                            Culture                      misses.




       Just                                   Informed
      Culture                                  Culture
                           Safety
                           Culture


                Flexible               Learning
                Culture                 culture
           Components of a Safety Culture
Reporting depends on an
atmosphere of trust in which
people are encouraged to provide                 Reporting
safety-related information and                    Culture
where there is a clear line between
acceptable and unacceptable
behaviour

                             Just                                   Informed
                            Culture                                  Culture
                                                 Safety
                                                 Culture


                                      Flexible               Learning
                                      Culture                 culture
             Components of a Safety Culture

                                                 Reporting
                                                  Culture




                            Just                                    Informed
                           Culture                                   Culture
                                                 Safety
                                                 Culture


                                      Flexible               Learning
                                      Culture                 culture


The ability to reconfigure the
organisation in the face of danger,
i.e. where control passes to task
experts on the spot where the
circumstances require it.
Components of a Safety Culture




                             An ability and willingness to draw
                             the right conclusions from its
                             safety information and to
                             implement corresponding reforms.
Questions?
Michael Tooma
Partner

Norton Rose Australia
+61293308108
+61(0)410633858
michael.tooma@nortonrose.com
www.nortonrose.com
Our international practice
FINANCIAL INSTITUTIONS   ENERGY   INFRASTRUCTURE AND COMMODITIES   TRANSPORT TECHNOLOGY

				
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