1. EXECUTIVE MANAGEMENT OHS SEMINAR Due Diligence for Community Sector Leaders PRESENTATION PART 3 (Regulation and Enforcement; Investigation) 8 September 2010 The Arts Centre, Melbourne Proudly presented by

2. The enforcement and compliance provisions reflect contemporary work practices… An inspector can request the production of information held at multiple locations An inspector may enter any place they reasonably suspect to be a workplace An inspector may issue improvement notice, prohibition notices or non-disturbance notices Enforceable undertakings may be entered as an alternative to prosecution

3. Aim of a National Compliance & Enforcement Policy Achieving compliance through credible enforcement activity contributes to prevention and injury reduction Increasing demand for transparency from the community and practitioners Need to ensure that the regulator’s use of enforcement tools is clearly articulated and well understood by stakeholders and community Provides a platform to work more closely together across jurisdictions to ensure consistent approaches and outcomes

4. Likely features of the NCEP Aims to ensure consistency, objectivity and predictability of outcomes. Recognises existing balanced strategy of positive motivators and strong deterrents. Encourage duty holders to comply through guidance, education, advice and capability building while ensuring that there are fair and swift consequences for those who do not comply. Two pronged approach  risk based  responsive.

5. Likely features of the NCEP Enforcement measures proportionate to risk and prevalence of injury and illness not just severity of outcome. Investigations targeted to areas of highest culpability. Prosecution guidelines of Director of Public Prosecution Prima facie case to answer Reasonable prospect of conviction Public interest

6. Enforcement criteria Consider the duty holders in the workplace Determine if each has discharged his or her duties under the Act Adverse effect i.e. the extent of the risk, the seriousness of the breach and the actual or potential consequences Culpability of the duty holder Compliance history and attitude of the duty holder

7. Enforcement criteria (cont’d) Whether the duty holder has a licence or permission Impact of enforcement on encouragement or deterrence Any mitigating or aggravating circumstances Whether the risk to health and safety is imminent or immediate Whether the safety issue can be rectified in the presence of an inspector

8. Enforcement tools Improvement notices (incl. PINs) Prohibition notices Infringement notices Seizure notices Suspension or cancellation of licences Court Orders Prosecutions Enforceable Undertakings

9. Potential investigation criteria In selecting which other complaints, reports, incidents or occupational ill health to investigate we will take account of the following: >the severity and scale of potential or actual harm >the seriousness of any breach >the duty holder’s past health and safety performance >the enforcement priorities >the practicality of achieving results >the wider relevance of the event, including serious public concern. Investigations are generally carried out for all reportable work-related fatalities unless there are compelling and specific reasons.

10. Investigation criteria priority areas Work-related fatalities and serious injuries Non-compliance with notices or directions Offences against inspectors Offences against persons exercising health and safety responsibilities at the workplace >e.g. workplace health and safety representatives, workplace health and safety officers, union officers or other authorised persons Discrimination against employees on the basis of their WHS activities Failure to notify of incidents or a failure to preserve an incident site.

11. Investigation and questioning powers Abrogation of the right to silence Cannot refuse based on privilege against self- incrimination Use immunity if assert the privilege Requirement for warning – but gap in the section Need to rely on the courts and Evidence Acts – complex Legal professional privilege enshrined If a significant incident occurs, you will need to involve a lawyer early to ensure protection and advice

12. …and also Union right of entry to consult and advise, not just to inquire into suspected breaches broadens current Vic rights consistent with Fair Work Act Ability of HSRs to fix minor issues with notices or cancel notices Ability of inspectors to fix minor issues with notices Recognition of key role of the regulator in the workplace advice, issue resolution Common enforcement protocols Right of appeal to High Court to provide consistency in decisions

13. Penalties for breaches of duty of care are based on the degree of ‘culpability’ and risk / degree of harm Corporation Individual as PCBU or officer Individual eg. worker Category 1$3 m $600 k 5 yrs jail $300 k 5 yrs jail Category 2$1.5 m$300 k$150 k Category 3$500 k$100 k$50 k

14. Development of national model WHS regulations commenced in 2009 and is continuing now Confined spacesPlantAsbestos ChemicalsFire & explosion Licensing of High Risk Work Manual TasksInorganic Lead Fatigue in Long Haul Transport Construction Major Hazard Facilities (MHFs) Mines (hybrid model) Working at HeightsFire & explosionNoise Electrical SafetyOccupational Diving Abrasive Blasting (in Chemicals) Workplace Management (incl. First Aid, Remote and Isolated work and Emergency Management)

15. National Codes of Practice: status under WHSA National codes of practice Once agreed nationally to be applied locally Court may have regard to NCoP as evidence of current state of knowledge Admissible in proceedings as evidence of whether or not a duty/obligation under WHSA has been complied with Court may rely on NCoP in determining ‘reasonably practicable’ Person may produce evidence of compliance with WHSA to same or better standard

16. National Codes of Practice: likely topics (* = priority code) Risk Assessment/Management*, Consultation* Work Environment and Facilities*, Traffic Management, First Aid Plant / Scaffolding Asbestos (x 2 – Management and Removal)* Labelling*, Safety Data Sheets* Manual Tasks*, Noise Working at Heights*/Construction work at heights Confined spaces Construction induction, demolition*, excavation*, tilt-up panels* Occupational Diving Abrasive blasting, Logging, welding, spray painting FatigueMiningElectricity Bullying?

17. HWSA’s Regulators Harmonisation Project Regulators Harmonisation Project Framework aimed at WHS regulators working in collaboration to achieve uniform WHS laws applied and operationalised in consistent manner Co-led by Vic and QLD 26 projects to meet this objective

18. Regulators Harmonisation Projects Inspector training - development and deliveryCommon Principles for Inspection Common inspector performance measuresProcedures for inspector powers/functions National Compliance & Enforcement Policy Principles/procedures for Infringement Notices Priority topics for interpretive guidelinesHarmonised guidance material HSR training courses - approval processApproach to Entry Permit Holders Approach to Major Hazard Facilities

19. So to prepare for model WHS laws the community sector can … Be proactive in your approach to WHS in your workplace Review current WHS risk management policies and procedures Understand your rights, obligations and duties under the model laws Understand the role of the regulator in enforcing and administering local WHS laws

20. Avenues for support  Advisory Service 1800 136 089  Work Safe Week: 25 – 29 October 2010  worksafe.vic.gov.au