FINANCIAL INSTITUTIONS ENERGY INFRASTRUCTURE AND COMMODITIES TRANSPORT TECHNOLOGY Safety Institute of Australia ACT Division Michael Tooma Partner Norton Rose Australia 25 February 2010 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 Public consultation process closed on 9 November WRMC approved final draft of the Model Laws on 11 December Laws will commence on 1 January 2012.

Preliminary Safety Duties Notification Right of entry Victimisation Consultation Regulator Enforcement Compliance Notices Review Legal Proceedings General

Change of Approach to Duty Employer Controller of workplace Controller of plant, fixtures or fittings Designers of plant, substances or structures Manufacturers of plant, substances or structures Importers of plant, substances or structures Suppliers of plant, substances or structures Installers of plant or structures Person conducting a business or undertaking Controller of workplace Controller of plant, fixtures or fittings Designers of plant, substances or structures Manufacturers of plant, substances or structures Importers of plant, substances or structures Suppliers of plant, substances or structures Installers of plant or structures

Person Conducting a Business or Undertaking PCBU Alone Non- profit JointProfit Volunteer

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

Officer Worker Person at the workplace 1. A person is a worker if the person carries out work in any capacity for a 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- 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. 2. The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

Officer Worker Person at the workplace A workplace is a place where work is 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 (b)any installation on land, on the bed of any waters or floating on any waters.

Section 9 of Corporations Act Includes officers of public sector Officer Worker Person at the workplace Due diligence

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.

Due Diligence Knowledge of OHS Matters The nature of the operations and risks associated with those operations Resources and processes to Implementation of Processes Timely response to incidents Processes for Legal 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 CategoryDescriptionMaximum penalty Category 1Most serious cases – breach the primary (general) duty involving recklessness and serious harm to a person or risk of such harm. Corporation = $3 million Individual = $600,000 Imprisonment – up to five years Workers and other persons = $300,000 Imprisonment – up to five years Category 2Breach of the primary (general) duty where serious harm or the risk of it without the element of recklessness. Corporation - $1.5 million Individual officers = $300,000 Workers and other persons = $150,000 Category 3Breach of the duty that does not involve high risk of serious harm. Corporation = $500,000 Individual officer = $100,000 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 Safety Culture Reporting Culture Informed Culture Learning culture Flexible Culture Just Culture

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

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

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

Components of a Safety Culture Safety Culture Reporting Culture Informed Culture Learning culture Flexible Culture Just 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 Safety Culture Reporting Culture Informed Culture Learning culture Flexible Culture Just Culture An ability and willingness to draw the right conclusions from its safety information and to implement corresponding reforms.

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