1. Presentation to Rising Stars Roundtable
Workplace Health & Safety
Presented by:
Chris Molnar BJuris LLB LLM MBA
Accredited Specialist in Workplace Relations
1 May 2012
Disclaimer: This presentation provides a summary only of the subject matter covered without the assumption of a duty of care by McKean Park. No person should rely on the contents as a substitute for legal or other professional advice. This paper reflects the law as at May 2012

2. Agenda Overall duties Officer duties Evidentiary matters
Breakfast Briefing - Thursday 11 April 2011

3. Key Documents WHS Act WHS Regulations Codes of Practice
Breakfast Briefing - Thursday 11 April 2011

4. Implementation Implemented: Commonwealth, NSW, Queensland, ACT, NT
To be implemented: Tas – 1/1/13
Not implemented: SA, Vic, WA
Breakfast Briefing - Thursday 11 April 2011

5. Duties Focus on class of duty holder Duties not transferable
One person can have multiple duties
More than one person can have duties
capacity to influence and control
Management of risks
Reasonably practicable – increased recognition to costs
Breakfast Briefing - Thursday 11 April 2011

6. Management of Risks
A duty imposed on a person under the WHS Bill to ensure health and safety requires that person:
to eliminate risks to health and safety, so far as is reasonably practicable; and
if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable
Breakfast Briefing - Thursday 11 April 2011

7. Source: Draft Code of Practice – How to manage work health & safety risks – Safe Work Australia
Breakfast Briefing - Thursday 11 April 2011

8. Duties under WH&S Act
Breakfast Briefing - Thursday 11 April 2011

9. Additional duty holders
Involving management or control of workplaces
Involving management or control of fixtures, fittings or plant at workplaces
Design of plant, substances or structures
Manufacture of plant, substances or structures
Importation of plant, substances or structures
Supply of plant, substances or structures
Installing, constructing or commissioning plant or structures
Breakfast Briefing - Thursday 11 April 2011

10. Penalties Breakfast Briefing - Thursday 11 April 2011 PENALTIES
Body corporate
Individual as a PCBU or an officer of a PCBU
Individual
Category 1 – reckless conduct that exposes an individual to a risk of death or serious injury or illness and is engaged in without reasonable excuse
$3,000,000
$600,000 or 5 years imprisonment or both
$300,000 or 5 years imprisonment or both
Category 2 – failure to comply with a health and safety duty exposing an individual to risk of death or serious injury or illness
$1,500,000
$300,000
$150,000
Category 3 – failure to comply with a health and safety duty
$500,000
$100,000
$50,000
Breakfast Briefing - Thursday 11 April 2011

11. Centro Case Financial statements Responsibility under section 180:
Officer must exercise reasonable care and diligence
. . . there is a core, irreducible requirement of directors to be involved in the management of the company and to take all reasonable steps to be in a position to guide or monitor.
Breakfast Briefing - Thursday 11 April 2011

12. Officer’s Duty of Due Diligence under WH&S Act
An officer must exercise due diligence to ensure that the person conducting the business or undertaking complies with the duty or obligation
Not related to whether the person conducting the business or undertaking has been convicted or found guilty
Breakfast Briefing - Thursday 11 April 2011

13. Who is an Officer under Corporations Act?
A director or secretary
Makes or participates in making decisions that affect the whole, or a substantial part, of the business
Capacity to affect significantly the corporations' financial standing
A person in accordance with whose instructions or wishes the directors are accustomed to act (excluding advisors)
External administrators: receivers and managers, liquidators, administrators etc
Breakfast Briefing - Thursday 11 April 2011

14. Due diligence includes:
Acquire and keep up-to-date knowledge of WH&S
Understanding of nature of operations and generally of the hazards and risks associated with those operations
Ensure availability of appropriate resources and processes to eliminate or minimise risks to health and safety
Ensure appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information
Ensure implementation of processes for complying with duties or obligations
Verification of resources and processes
Breakfast Briefing - Thursday 11 April 2011

15. What to Do – Initial Considerations
OHS Corporate Governance Statement
OHS Board Committee
Training of officers
How is compliance to be documented and audited?
Assessment and appraisal of CEO and senior management OHS KPI’s
No one size fits all
What information needs to be received and by whom?
What questions need to be asked?
Breakfast Briefing - Thursday 11 April 2011

16. Evidentiary Issues
What document and record keeping systems are in place?
s, text messages?
Letters? Drawings? Other documents?
How long are they kept for?
Ability to search
Electronic/physical storage
On which devices?
Breakfast Briefing - Thursday 11 April 2011

17. Further Information Chris Molnar (T) 03 8621 2888 (F) 03 9614 0880
Breakfast Briefing - Thursday 11 April 2011

18. Presentation to Rising Stars Roundtable
Workplace Health & Safety
Presented by:
Chris Molnar BJuris LLB LLM MBA
Accredited Specialist in Workplace Relations
1 May 2012
Disclaimer: This presentation provides a summary only of the subject matter covered without the assumption of a duty of care by McKean Park. No person should rely on the contents as a substitute for legal or other professional advice. This paper reflects the law as at May 2012