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EXECUTIVE MANAGEMENT OHS SEMINAR Due Diligence for Community Sector Leaders PRESENTATION PART 2 Overview of OHS harmonisation, OHS obligations for organisations and individuals; Due Diligence in OHS; consultation 8 September 2010 The Arts Centre, Melbourne Proudly presented by

Harmonisation timetable 2011 2010 2012 April 2010: SWA Council approval of final version of model Work Health and Safety Act Late October 2010: Regulations and draft codes of practice released by WRMC for 4 months for public comment May/June 2011: SWA and WRMC agree and approve model regulations Mid 2011→: Model Act passed progressively in each jurisdiction Early 2011: Comments considered and regulations and codes of practice finalised and approved July 2011→: Education and transition in jurisdictions By late June 2010: Report on Draft regulations for WRMC Commencement of model Act and Regulations no later than December 2011

Introduction – A new approach Removing legal labels and pigeon-holes for duties of care and obligations Focus on cause and effect instead All who are involved in work being done will have a duty of care – no loop-holes or gaps Positive duty of care for officers to exercise due diligence More emphasis on inclusion of all in practical OHS management Greater clarity – aimed at work participants rather than lawyers and regulators Enforcement and sentencing aimed at OHS outcomes, not just punishment

What will change • Significant changes in all jurisdictions will include • Moving from employment as basis for duties, obligations and rights • New positive duty of care for officers, with due diligence defined • Broadened consultation obligations – vertical and horizontal • Broadened union right of entry • Greater protection against discrimination and coercion • Emphasis on graduated enforcement but higher penalties • Easier modification of notices • Increased powers of questioning and reduced rights of individuals • No reverse onus of proof (NSW, Qld) or union prosecution (NSW) • Broader HSR powers (some States)

5 100% The reach of OHS legislationWhich of the following statements is true? ( you can choose more than one) • OHS laws are restricted to what happens at a workplace • OHS laws apply to the public safety consequences of work being done – wherever these consequences occur • OHS laws apply only to what happens while work is being done

Scope, objects and principles • To apply to all industries unless other legislation justified • Continues to apply to public safety consequences of work • Maintains connection to work as key to the Act’s application • All who are involved in the conduct of work, or contributing things for it to occur, will have a duty of care and should be involved in OHS risk elimination or minimisation • All duties are concurrent and non-delegable

5 100% Not for profit organisations and volunteersWhich of the following statements are true?(you can choose more than one ) • Not for profit organisations cannot be liable under OHS laws • Not for profit organisations can only be liable for what happens to their direct employees, not volunteers • Not for profit organisations will have obligations under the model Work Health and Safety Act • Volunteers have a duty of care and can be prosecuted under OHS legislation • Volunteers will owe a duty of care under the model Work Health and Safety Act

The duties of care – cause and effect Relationship between recommended duties of care Nature of the Duties associated Relevant Standard activity with the activity Primary Duty of Care Per son conducting Operation of the business or business or undertaking Reasonably practicable undertaking Specific classes of duty holders Organisational decision Officers’ Duty of Care Due diligence making and governance Work activities (including Workers’ Duty of Care Reasonable care supervision) Circumstantial attendance at Duty of Care of Others Reasonable care the workplace (i.e. visitors) (i.e. at a workplace)

Duty of person conducting business or undertaking • To replace current duties of • employer (to employees) • employer conducting business or undertaking (to others) • self-employed person (to others) • Will apply to not for profit organisations • Duty owed to your ‘workers’ and ‘others’ • ‘workers’ include volunteers and contractors • ‘others’ include the public • Sub-sets/further elements of duties for PCBUs for specific activities • Everyone contributing to work to have a duty of care – can be more than one in relation to specific activities

Duties of care - Where does your organisation fit in?The simplified version Contractors Employees Volunteers Community Sector Organisation Public Suppliers Occupiers

Reasonably practicable defined • Similar to the Victorian definition, but improved • Clearer reference to • that which is, or was.. reasonablyable to be done… • taking into account and weighing up all relevant matters • Likelihood of hazard or risk • Degree of harm • What you know or ought to know about hazard, risks, controls • Availability and suitability of ways of eliminating or minimising risk • Cost – after assessing the extent of the risk and the available ways (of control), the cost of the available ways.. including whether the cost is grossly disproportionate to the risk… • ‘…highest level of protection.. as is reasonably practicable..’ • Simply makes clear that you start with what can be done and only do less where it is reasonable to do so

Do you currently have in place what is needed to meet the primary duty of care?

Moving on from the organisation • What about individuals?

Personal obligations • As an officer • As a ‘worker’ • Same as current law • Duty to exercise reasonable care • Includes compliance with reasonable instructions, policies and procedures • What is reasonable is determined by your role, influence and what a reasonable person in your position would be expected to do

Officers • s9 Corporations Law definition of officer • Positive duty of care to exercise due diligence • a new way of drafting, but consistent with current law • aimed at corporate governance • ‘due diligence’ will be defined, for the first time in relation to health and safety

5 100% Who will be an officer?Which of the following will be officers with a duty of care under that model Act?(you can choose more than one) • Directors and board members • Members of the executive team • Line managers • Supervisors • Volunteers with senior management responsibilities • Other senior managers

Who will be an officer? • Directors, company secretary, partner, officeholder • “Shadow directors” • Those involved in making decisions affecting the whole or a substantial part of the organization (sole criterion for Crown) • Those with capacity to affect significantly the organisation’s financial standing • Those on whose instructions or wishes directors are accustomed to act • Receivers, managers, administrators, liquidators • NOT VOLUNTEERS BUT – a volunteer or officer may be a worker or other person at the workplace and owe duties as such

Officers of your organisation • Who will be officers and for what purposes? • Interaction between divisions of alliances, federations etc • Second issue is what will specific officers be responsible for? • If not an officer, will duty of ‘worker’ require similar conduct?

Due diligence defined

5 100% What is done ?Answer only of you think you are an officer(you can choose more than one) • I am aware of the significant hazards and risks from the operations of my organisation • I am regularly advised of emerging OHS issues • I am regularly advised of OHS legal obligations of the organisation and any changes • I am advised on and consider OHS resource needs • I check to ensure that the organisation has in place measures to comply with those obligations

Keys to due diligence • The right structure • The right people in the right places, authorised and accountable The right process • Information gathering and reporting processes that enable officers to understand and make decisions The right information • Reporting on the things that identify specific requirements and demonstrate the means for compliance and sustained and improved performance

5 100% ConsultationThe organisation must now consult employees, contractors and volunteers on relevant OHS issues and processes • True • False

100% ConsultationThe model Act will require the organisation to consult with employees, contractors and volunteers on relevant OHS issues and processes • True • False

Engagement of all in WHS • Obligation of PCBU to consult so far as reasonably practicable • with workers • all who are working in the business of the PCBU, not just direct employees • Includes volunteers • Optional multi-PCBU, multi-workplace HSRs • Issue resolution processes and default procedures to ensure engagement of workers and their representatives with PCBUs Do you currently have in place processes to comply with this?

Duties of care - How can you make this work? Contractors Employees Volunteers Community Sector Organisation Public Suppliers Occupiers

5 100% Dealing with other partiesThe model Act will require you as an organisation to do which of the following with others involved in what you do:( you can choose more than one ) • Consult them • Co-operate with them in what they want to do • Co-ordinate our activities and theirs

5 100% “Consult, co-operate, co-ordinate”Relevant consultation and co-ordination should occur:(you can choose more than one ) • At the start of a project • At the start and at key milestones • When anything significant happens (e.g. risk identification, • incident, new information) • With everyone every single day • It depends on the circumstances

Duty to consult, co-operate and co-ordinate • PCBU, so far as reasonably practicable, to consult with, co-operate with and co-ordinate activities with other persons with a duty over the same matter • E.g. contractors, sub-contractors, supplier, occupier • This is new in the law, but represents good practice • A key element of effective contractor management systems • Consistent with concurrent duties • Critical to meeting the primary duty requirement to ensure safety outcomes Do you currently have in place processes to comply with this? Who should you ‘consult, co-operate and co-ordinate’ with? HOW?

2 What is done?Does your organisation (or organisations you assist or deal with, typically) have processes for effective consultation, cooperation and co-ordination? • Yes • No • Uncertain

The questions you should be asking yourself • What is the relevant activity or issue? • What duty or obligation do I have? • What do I need to know to ensure I meet the duty? • Who else is involved in the activity? • How may each of us affect OHS in relation to the activity? • How do our activities intersect and support or compromise OHS activities of each other? • What should we do to communicate and work together effectively for health and safety?

Protection against discrimination and coercion • Protection for all workers and those in commercial arrangements from discrimination based on WHS role or action • Protection to extend to unlawful coercion • Criminal offence – if WHS role or action was ‘dominant reason’ • Civil action • If WHS role or action was a substantial reason • No double dipping • Recommended ‘reasonable precautions’ defence not included

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