Change is coming

1. Preparing for health and safety harmonisation Change is coming 14975407

2. Today’s agenda Part 1: Where are we now, OHS laws overview (5 minutes) Part 2: What’s new (15 minutes) Part 3: Particular issues arising for overseas travel (15 minutes) Part 4: Personal responsibility (10 minutes) 14975407

3. Part 1:Where we are now

4. Context: Current status of Model Laws Commonwealth:Commenced NT:Commenced Qld:Commenced WA: Little public commitment No legislative action Legislation delayed until at least 2013 (if introduced at all) NSW:Commenced ACT:Commenced SA: Legislation delayed. Bill has not passed Upper House despite three attempts. Vic: Not likely to be introduced in current form Tas: To commence 1 January 2013

5. Health and safety laws: Overview

6. Part 2:Key concepts and new terms

7. Legal issues following a workplace incident Workplace injury or ‘near miss’ Workers’ compensation issues Occupational health and safety issues Other legalclaims Consequences: Investigations by regulator (Worksafe, etc) May give rise to allegations against company/individuals and criminal charges May give rise to monetary fines(likely uninsured) Consequences: Likely to require ‘negligence’. Claim for damages by private parties Money to injured worker, or other parties Consequences: Strict liability (blame not an issue) Money to injured worker, in some cases to dependants Obligations to return to work

8. Overview of the Model Act Introduction to the Act General duties for businesses, penalties General duties for individuals and ‘due diligence’ Incident notification Consultation Health and safety representatives and employee representation Statutory notices, internal review Prohibition on discrimination Right to cease work, etc, Right of entry Powers of the regulator Legal proceedings, and enforcement

9. Overview of Model Regulations Preliminary Representation and Participation General Workplace Management: Facilities, PPE, First Aid, Emergency Plans Hazardous Work: Noise, Manual Handling, Confined Spaces, Falls, High Risk Work, Abrasive Blasting, Electrical Work, Diving Work Plant and Structures: Upstream duties, Registration Construction Work: Design, Principal Contractor, Induction Training Hazardous Chemicals: Upstream Duties, Lead, Asbestos Major Hazard Facilities: Registration and licensing, Duties of Operators Mines: yet to be agreed General Schedules

10. The Primary Duty of Care • Duty holder?‘Person conducting a business or undertaking’ • Owed to?Workers (engaged, caused to be engaged or whose activities are influence / directed by the PCBU) and other persons • Owed when?(for workers) while workers are at work in the business or undertaking and (for others) when work is being carried out by the business or undertaking • Duty?To ensure the health and safety of workers and other persons, so far as reasonably practicable

11. Legal comparisons, old and new

12. Legal comparisons, old and new

13. Legal comparisons, old and new

14. Consultation, co-operation and coordination between entities Consultation • The objective of consultation is to make sure everyone associated with the work has a shared understanding of what the risks are, which workers are affected and how the risks will be controlled. The exchange of information will allow the duty holders to work together to plan and manage health and safety. Co-operation • Co-operation may involve implementing arrangements in accordance with any agreements reached during consultation with the other duty holder and involve not acting in a way that may compromise what they are doing for health and safety. Code of Practice WHS Consultation, Cooperation and Coordination Safe Work Australia, August 2011

15. Consultation, co-operation and coordination between entities Coordination • Co-ordination of activities may include the scheduling of work activities so that each duty holder carries out their work separately. It may require work to be arranged in a way that will allow for necessary precautions to be in place or pre-conditions met before particular work is done. • Where work is not effectively co-ordinated, the parties should consult further to determine what should be changed. Code of Practice WHS Consultation, Cooperation and Coordination Safe Work Australia, August 2011

16. Part 3:Particular issues arising for overseas travel

17. Overseas application: Do the duties apply? Generally speaking duties under the Model Laws may apply in relation to workers travelling abroad in respect of steps which are or should be taken regarding health and safety risk management, which occur partly or wholly within Australia. This means that duties owed under Australian workplace safety laws likely: • apply to Australian entities, in respect of their workers travelling for work purposes or who are based in overseas jurisdictions; and • may potentially apply to Foreign entities who have workers travelling for work or who are based in Australia.

18. Overseas application: Do the offence provisions apply? • Criminal Code Act, 1995 (the Criminal Code) will apply to offences under the WHS Act. • Section 15.1 of the Criminal Code states that persons will not be guilty of offences under the WHS Act unless the conduct constituting the commission of the offence occurs: • wholly or partly in Australia, or on an Australian aircraft/ship; or • wholly outside Australia and the result of the conduct occurs wholly or partly in Australia or on an Australian aircraft/ship; or • wholly outside Australia but the offender is an Australian citizen or a body incorporated by or under an Australian law.

19. Legal factors for and against: Duty to ‘workers’

20. Legal factors for and against

21. What does the regulator say? “When considering sending workers overseas organisations need to: • identify any threats relating to the travel • evaluate these threats in consideration of the traveller's profile • set an acceptable level of risk relating to the intended travel • implement strategies to reduce the level of risk while monitoring for any changes in threats or a breakdown in the mitigation strategy. ” Comcare Website, International Deployment http://www.comcare.gov.au/safety__and__prevention/health_and_safety_topics/international_deployment

22. What does the regulator say? “No travel event is without risk. However, the level of risk planning may be scaled to the assessed risk of the mode, purpose and destination of travel. If travelling to a destination assessed as low risk, a less comprehensive assessment may substitute provided due consideration is given to emergency management. If something does happen to workers while overseas organisations must be prepared to respond.” Comcare Website, International Deployment http://www.comcare.gov.au/safety__and__prevention/health_and_safety_topics/international_deployment

23. WHS Laws: Risk mitigation In order to manage this risk, employers should: • Identify duties applicable to workers travelling or based in Australia and overseas and relevant stakeholders • Review existing safety management systems, and undertake a gap analysis • Update policies and procedures as necessary • Consider whether current consultation arrangements are adequate to allow for consultation with workers about the risks associated with their work • Identify who are ‘officers’ of the business or undertaking and develop a process of exercising due diligence

24. Specific issues for consideration • Hazard identification and control procedures: Among other things, these should contemplate risks to workers when they are travelling or based in overseas jurisdictions. • Training Procedures: Should ensure the provision of necessary information, instruction and training for workers to understand the risks peculiar to their changed working environment, and to perform their work safely and in safe conditions; • Welfare facilities: Overseas workers should have access to adequate facilities (including access to drinking water, washing and eating facilities); • Emergency plans: Should be reviewed to ensure that the business can respond to emergencies involving overseas workers. At the least, this may include evacuation procedures and processes for ensuring access to appropriate medical assistance as required. • Procedure for isolated workers:Should be developed to ensure that workers remote from access to medical assistance are provided with effective means of communication.

25. Part 4:‘Due diligence’

26. From Safe Work Australia A business or undertaking is operated (governed) by individuals who, through their decision making, influence the specific activities and behaviours that determine the success or failure of health and safety initiatives and compliance by the PCBU with WHS laws. These individuals through their decisions and behaviour strongly influence the culture of the business or undertaking and accountability within it. They make important decisions on the resources that will be made available for the purposes of work health and safety and the policies that will be developed to support compliance. Interpretive Guideline — Model Work Health And Safety Act, The Health And Safety Duty Of An Officer Under Section 27 Safe Work Australia, 27 September 2011

27. PCBU duties Personal oversight Due diligence: What should officers do? An understanding of the natureof the operations of the entity and generally the hazards and risks associated with those operations Up-to-date knowledge of OHS laws and compliance requirements Education Ensuring appropriate resources and processes to enable the identification and elimination or control of specific OHS hazards and risks A process for receiving, considering and ensuring a timely response to information regarding incidents, identified hazards and risks Reporting Verification that risks and hazards are being appropriately controlled, and that legal duties are being met, and ensuring ‘continual compliance’ Verifying

28. Contact Steve Bell Senior Associate Freehills 0419 351 022 (03) 9288 1236 steve.bell@freehills.com

29. www.freehills.com