Work Health and Safety Harmonisation – IQA-CCAA Construction Materials Industry Conference

1. Work Health and Safety Harmonisation – IQA-CCAA Construction Materials Industry Conference Louise Houlihan, Partner 21 August 2012

2. Overview of today’s presentation • National harmonisation – will it happen? • Specific duties under the legislation: • Person Conducting Business or Undertaking (PCBU) • Officers • Workers/others • What if an incident occurs? • Incident notification • Powers of Inspectors • Enforcement measures • Penalties • Practical tips.

3. National harmonisation? • Cth, ACT, NSW, QLD, NT: Legislation passed and commenced 1 January 2012. NSW Act contains variations from model regime. • TAS: Legislation introduced into Parliament – expect to commence 1 January 2013. • SA: Legislation introduced into Parliament – Liberal opposition has moved to defeat the Bill. • VIC and WA: ??.

4. Operation of the legislation

5. PCBU Primary duty Reasonably practicable Breach/ penalty Persons Conducting a Business or Undertaking (PCBU) • Who is a PCBU? • What is the ‘primary duty’ and who is it owed to? • To ensure, so far as is reasonably practicable, the health and safety of workers and others.

6. PCBU: The primary duty • A PCBU must, so far as is reasonably practicable: • Provide and maintain a safe work environment, safe plant, safe structures and safe systems of work; • Provide adequate facilities; • Provide information, training and supervision about risks to health and safety; • Monitor the health of workers and conditions at the workplace.

7. PCBU: ‘Reasonably practicable’ – what will this require? • Risk/hazard identification assessments. • When hazard identified – what level of control is possible? • Level 1: eliminate the hazard; • Level 2: substitution, isolation, use of controls; • Level 3: procedures, policies, PPE.

8. PCBU: Consultation • With other duty-holders: • Consult, co-operate and co-ordinate activities with all others who have a duty in relation to the same matter. • With workers: • Consult with workers.

9. Further types of PCBUs – each have additional duties

10. Officers • Who is an officer? • Director/secretary/insolvency practitioners; • Someone who makes or participates in making decisions that affect the whole or a substantial part of the organisation; • Someone who could significantly affect the organisation’s financial standing; or • Someone whose instructions the directors are accustomed to act in accordance with. • What is the duty? • Exercise ‘due diligence’ to ensure the organisation complies with its duties and obligations.

11. Officers: Due diligence

12. Who is a ‘worker’? Who are ‘others’? Duty to: take reasonable care for his/her own health and safety and that of others; comply with reasonable instructions; comply with organisation’s reasonable policies and procedures. Workers/others Duty to self and others Reasonable care Breach/ penalty Workers/others

13. What if an incident occurs? • Incident notification: • Notifiable incident: • Death of a person, “serious injury or illness” or a “dangerous incident”; • “Serious injury or illness”: hospital treatment; • “Dangerous incident”: incident exposing anyone to a serious risk to health or safety, eg explosion or collapse of plant. • IMMEDIATE notification by the fastest possible means. • Duty to preserve incident sites (after making safe).

14. Powers of inspectors • Broad powers to enter workplaces without notice. • May inspect, examine and make enquiries at workplace. • Power to require production of documents and answers to questions. • Offence to fail to comply with inspector’s requirements. • No right to silence. • Significant change. • Requirement for warning. • Legal professional privilege enshrined.

15. Enforcement measures • Improvement notices; • Prohibition notices; • Non-disturbance notices (up to 7 days); • Enforceable undertakings (not available for Category 1 offences); and • 2-year limitation period (or 1 year after Coronial report) – can be extended for Category 1 offences in certain circumstances.

16. Penalties • Sentencing options: • Adverse publicity orders; • Restoration orders; • WHS project orders; • Work health and safety undertakings; • Injunctions; • Training orders; and • Gaol (in certain circumstances). • Maximum penalties increased.

17. Penalties

18. What to do • Review and update current reporting processes: • Are the officers aware of everything they need to be of re. WHS? • What are officers doing with the information? • Review and update current policies: • Issues like bullying need careful and ongoing attention.

19. What to do (continued) • Ensure everyone with responsibilities understands those responsibilities and is capable and trained in how to discharge them, eg managers. • What to do when an inspector (or Union WHS officer) calls. • Incident notification. • What to say to an inspector. • Review and revise contract conditions. • Ensure all contractors have appropriate WHS obligations.

20. Work Health and Safety Harmonisation – IQA-CCAA Construction Materials Industry Conference For more information, please contact: Louise Houlihan, Partner t:+61 3 9608 2273 e:l.houlihan@cornwalls.com.au