Presentation to Rising Stars Roundtable Workplace Health & Safety Presented by: Chris Molnar BJuris LLB LLM MBA Accredited Specialist in Workplace Relations chris.molnar@mckeanpark.com.au 0419342569 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Evidentiary Issues What document and record keeping systems are in place? Emails, 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

Further Information Chris Molnar (T) 03 8621 2888 (F) 03 9614 0880 chris.molnar@mckeanpark.com.au Breakfast Briefing - Thursday 11 April 2011

Presentation to Rising Stars Roundtable Workplace Health & Safety Presented by: Chris Molnar BJuris LLB LLM MBA Accredited Specialist in Workplace Relations chris.molnar@mckeanpark.com.au 0419342569 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