WARREN SAUNDERS INSURANCE BROKERS CHANGES TO THE OH&S LANDSCAPE Ph:

THE FUNDAMENTAL DUTIES LEGISLATIVE FRAMEWORK Occupational Health & Safety Act, 2000 (NSW) Occupational Health & Safety Regulations, 2001 (NSW) Work Health & Safety Act, 2011 (NSW) Ph:

1 2 3 The Nationalised WH&S scheme is due to commence 1 January 2012 On 7 June 2011 Royal Assent to Occupational Health & Safety Amendment Bill, 2011 (NSW) Insertion of the phrase ‘so far as reasonably practicable’ in ss 8(1), 8(2), 9 and 10 No adoption of the primary duties of PCBU (person controlling a business undertaking) to workers ‘engaged or caused to be engaged’ Removal of deeming provision in s 26 Personal liability (s 26) aligned with the nationalised scheme utilising a defined concept of ‘due diligence’ Codes of Practice for construction, etc.

DUTY TO EMPLOYEES s 8(1) – must ensure health, safety and welfare of all employees at work DUTY TO NON-EMPLOYEES s 8(2) - must ensure persons not employees are not exposed to risks to health and safety at the employer’s place of work CONTROLLERS OF WORKPLACE s 10(1) – person who has control of a workplace must ensure that premises are safe and without risks s 10(2) – person who has control of plant or substance must ensure that safe and without risks PERSONAL LIABILITY s 26 – director or person concerned with management deemed to have committed the same offence as corporation. If a corporation breaches the Act, a director is deemed to have committed same offence. DEFENCES s 28(a) – not reasonably practicable for a person to comply; or s 28(b) – due to causes over which the person had no control and against the happening of which impracticable to make provision. Ph: PRIMARY DUTY s 19 – person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:  workers engaged or caused to be engaged (see R v ACR Roofing);  workers whose activities are influenced or directed by the person CONTROLLERS OF WORKPLACE s 20(2) – person who has management or control of a workplace must ensure, so far as is reasonably practicable, means of entering or exiting and anything arising is without risks that premises are safe and without risks DUTIES OF OFFICERS s 27 – if an officer of PCBU, must exercise ‘due diligence’ ‘Due diligence’ includes: –acquire information –gain an understanding of the operations –ensure sufficient resources –ensure appropriate risk identification processes –ensure implementation NewOld Introduction of degree of intention to penalties Category 1 – if reckless conduct  Corporation - $3 million  Officer – $600,000 and/or 5 years imprisonment  Individual - $300,000 and/or 5 years imprisonment Category 2 – risk of death or serious injury  Corporation - $1.5 million  Officer - $300,000  Individual - $150,000 Category 3 – general failure of duty  Corporation - $500,000  Officer - $100,000  Individual - $50,000 Penalties

Ph: Action Monitoring Knowledge & Systems Due Diligence Issues to Consider ‘Due diligence’ includes: acquire information gain an understanding of the operations ensure sufficient resources ensure appropriate risk identification processes ensure implementation Systems adapted to the benchmark with supporting training and knowledge for stakeholders Monitoring framework that provides a level of visibility that does not heighten the risk of the organisation. Reasonably action and/or provide the mechanisms & processes for action

R v ACR Roofing Pty Ltd (CA Victoria) ACR retained to erect and install roofing. ACR engaged crane company (Co A) to lift roof sheets. Co A engaged another company (Co B) to perform work. During lift by Co B, the crane’s jib touches overhead powerlines and a worker is killed. s 21(3)(a) of the Vic Act defines ‘employee’ as including an independent contractor ‘engaged’ by the employer. ACR argued ‘no case’ on the basis that it had not ‘engaged’ Co B. Convicted at first instance. ACR appealed Held: Concept of engagement is not limited to privity of contract. Ph:

R v ACR Roofing Pty Ltd (CA Victoria) Nettle JA held: ‘I am of the opinion that ‘engagement’ is not limited to privity of contract with the employer. It includes the engagement of a contractor under a contract with the employer and also the engagement of a contract under a sub-contract with some other party in relation to matters over which the employer has control.’ Ph:

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