adelaide | brisbane | canberra | melbourne | newcastle | perth | sydney | upper hunter © Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. Presenter: Paul Cutrone TAFE NSW Work Health & Safety (WHS) Laws Legal Briefing

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 2 INTRODUCTION PURPOSE

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 3 SESSION 1 UNDERSTANDING DUE DILIGENCE – WHAT YOUR OBLIGATIONS ARE?

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 4 WHS Act health and safety duties HEALTH & SAFETY DUTIES PRINCIPLES THAT APPLY TO HEALTH & SAFETY DUTIES INCIDENT NOTIFICATION WHAT IS REASONABLY PRACTICABLE OFFENCES & PENALTIES OFFICERS, WORKERS & OTHER PERSONS PRIMARY DUTY OF CARE FURTHER DUTIES OF A PERSON CONDUCTING A BUSINESS OR UNDERTAKING (PCBU) OBJECT & INTERPRETATION OTHER IMPORTANT TERMS, APPLICATION OF THE ACT

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 5 Definition in focus worker WORKER EMPLOYEECONTRACTOR SUB- CONTRACTOR EMPLOYEE OF CONTRACTOR EMPLOYEE OF SUB- CONTRACTOR EMPLOYEE OF LABOUR HIRE COMPANY OUT- WORKER APPRENTICE OR TRAINEE STUDENT GAINING WORK EXPERIENCE VOLUNTEER Note: A PCBU is worker if an individual

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 6 DESIGN PLANT, SUBSTANCES OR STRUCTURES MANUFACTURE PLANT, SUBSTANCES OR STRUCTURES IMPORT PLANT SUBSTANCES OR STRUCTURES SUPPLY PLANT, SUBSTANCES OR STRUCTURES INSTALL, CONSTRUCT OR COMMISSION PLANT OR STRUCTURES PCBU REASONABLY PRACTICABLE Other duty holders MANUFACTURE PLANT, SUBSTANCES OR STRUCTURES IMPORT PLANT, SUBSTANCES OR STRUCTURES

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 7 DEGREE OF HARM THAT MIGHT RESULT FROM THE HAZARD OR RISK LIKELIHOOD OF HAZARD OR RISK OCCURRING Health and safety duties reasonably practicable WHAT PERSON KNOWS OR OUGHT REASONABLY TO KNOW ABOUT THE HAZARD OR RISK TIME ACCOUNT + WEIGHT ACCOUNT + WEIGHT WAYS OF ELIMINATING OR MINIMISING THE RISK THE COSTS ASSOCIATED WITH AVAILABLE WAYS OF ELIMINATING OR MINIMISING THE RISK +

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 8 ACQUIRE & KEEP UP TO DATE KNOWLEDGE OF WORK H&S MATTERS GAIN AN UNDERSTANDING OF NATURE OF OPERATIONS OF BUSINESS OR UNDERTAKING AND GENERALLY OF HAZARDS & RISKS ASSOCIATED WITH THOSE OPERATIONS ENSURE HAS AVAILABLE FOR USE & USES APPROPRIATE RESOURCES & PROCESSES TO ENABLE HAZARDS ASSOCIATED WITH OPERATIONS TO BE IDENTIFIED & RISKS TO BE ELIMINATED OR MINIMISED ENSURE HAS APPROPRIATE PROCESSES FOR RECEIVING & CONSIDERING INFORMATION REGARDING INCIDENTS, HAZARDS & RISKS & RESPONDS IN A TIMELY WAY ENSURE HAS & IMPLEMENTS PROCESSES FOR COMPLYING WITH ACT VERIFY PROVISION & USE OF RESOURCES & PROCESSES Due diligence defined Note: Use of examples in the definition, reasonable steps

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 9 Duties of workers Note: broad definition of ‘worker’ TAKE REASONABLE CARE FOR OWN H&S TAKE REASONABLE CARE THAT ACTS OR OMISSIONS DO NOT ADVERSELY AFFECT THE H&S OF OTHER PERSONS COMPLY WITH REASONABLE INSTRUCTION TO COMPLY WITH ACT BY PCBU COMPLY WITH ANY REASONABLE POLICY OR PROCEDURE OF PCBU RELATING TO WORKPLACE H&S THAT HAS BEEN NOTIFIED TO WORKERS

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 10 Table of Penalties – WHS Act CATEGORYDESCRIPTIONMAXIMUM PENALTY CATEGORY 1MOST SERIOUS CASES BREACH OF A HEALTH AND SAFETY DUTY AND THE PERSON IS RECKLESS AS TO RISK OF DEATH OR SERIOUS INJURY OR ILLNESS TO THAT INDIVIDUAL (BURDEN OF PROOF – WITHOUT REASONABLE EXCUSE) BODY CORPORATE = $3 MILLION INDIVIDUAL (AS PCBU OR OFFICER OF BODY CORPORATE) = $600,000 AND/OR 5 YEARS IMPRISONMENT WORKERS AND OTHER PERSONS = $300,000 AND/OR 5 YEARS IMPRISONMENT CATEGORY 2BREACH OF A HEALTH AND SAFETY DUTY AND THE FAILURE EXPOSES AN INDIVIDUAL TO A RISK OF DEATH OR SERIOUS INJURY OR ILLNESS BODY CORPORATE = $1.5 MILLION INDIVIDUAL (AS PCBU OR OFFICER OF BODY CORPORATE) = $300,000 WORKERS AND OTHER PERSONS = $150,000 CATEGORY 3BREACH OF A HEALTH AND SAFETY DUTY (WITHOUT RISK OF DEATH OR SERIOUS INJURY OR ILLNESS) BODY CORPORATE = $500,000 INDIVIDUAL (AS PCBU OR OFFICER OF BODY CORPORATE) = $100,000 WORKERS AND OTHER PERSONS = $50,000 SENTENCING OPTIONS CONTINUED: ADVERSE PUBLICITY ORDERS, COURT ORDERED WHS UNDERTAKING, TRAINING ORDERS, INJUNCTIONS, RESTORATION ORDERS, WORK HEALTH AND SAFETY PROJECT ORDERS

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 11 WHS Act consultation, representation & participation CONSULTATION, REPRESENTATION & PARTICIPATION CONSULTATION, COOPERATION BETWEEN DUTY HOLDERS PROVISIONAL IMPROVEMENT NOTICES CONSULTATION WITH WORKERS RIGHT TO CEASE OR DIRECT CESSATION OF UNSAFE WORK ISSUE RESOLUTION HEALTH & SAFETY REPRESENTATIVES (HSR) HEALTH & SAFETY COMMITTEES

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 12 WHS Act workplace entry by WHS entry permit holder WORKPLACE ENTRY BY WHS ENTRY PERMIT HOLDER ENTRY TO INQUIRE INTO SUSPECTED CONTRAVENTIONS GENERAL ENTRY TO CONSULT & ADVISE WORKERS PROHIBITIONS DEALING WITH DISPUTES REQUIREMENTS FOR WHS ENTRY PERMIT HOLDERS WHS ENTRY PERMITS

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 13 ENFORCE- MENT MEASURES IMPROVEMENT NOTICES REVIEW OF DECISIONS PROHIBITION NOTICES INJUNCTIONS NON- DISTURBANCE NOTICES GENERAL REQUIREMENTS APPLYING TO NOTICES REMEDIAL ACTION PERFORMANCE AND CULTURE CONTINUOUS IMPROVEMENT ENFORCEABLE UNDERTAKINGS WHS Act enforcement measures Note: Notification of Incident

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 14 SESSION 2 Due diligence in practice – case studies?

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 15 CASE STUDY Learning through a scenario

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 16 Why is WHS important? ‘My parents were my best friends, they’re all I had. My life ended that day. BP ruined my life. It ended my life. That day I had to start all over.’

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 17 The incident and the investigation Adapted Jim Reason

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 18 Legal Regulatory Investigation  Hierarchy of WHS documents.  Supporting and assurance systems/practices.  Due diligence and your role.

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 19 Legal Court Examination  Hierarchy of WHS documents.  Supporting and assurance systems/practices.  Due diligence and your role.

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 20 Hierarchy of WHS documents ‘Consider the difference between what is written and what is real.’ Professor James Reason at a meeting with Paul Cutrone on 28 July 2006

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 21 A risk based approach “I would also add that it would always be prudent to take even greater than usual care in a workplace where a majority of the employees are young people with little experience in the workplace, or indeed, in life”. “I would also add that it would always be prudent to take even greater than usual care in a workplace where a majority of the employees are young people with little experience in the workplace, or indeed, in life”. Walton J (V-P) - WorkCover Authority of New South Wales (Inspector Ankucic) V Lyndhurst Trading Co Pty Ltd

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 22 Supporting and assurance systems ‘When we asked senior management why they didn’t know about the many failings uncovered by the inquiry, one of them said: “I knew everything was alright because I never got any reports of things being wrong.” In my experience [Appleton said],…there is always news on safety and some of it will be bad news. Continuous good news – you worry.’ Quote from and regarding the Piper Alpha Disaster

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 23 WHS leadership “…Management actions and actual day to day behaviour are generally much more important than simply changing written policies and procedures for effecting lasting cultural change. For senior managers, actions speak louder than words. If senior management only changes what it says, rather than what it does, then little progress will be made…” The Honourable Peter Aloysius McInerney, Special Commission of Inquiry in the Glenbrook Rail Accident, Final Report, April 2001, at 49

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 24 WHS leadership “If eternal vigilance is the price of liberty, then chronic unease is the price of safety. Studies of high-reliability organisations – systems…indicate that people who operate and manage them tend to assume that each day will be a bad day and act accordingly. But this is not an easy state to sustain, particularly when the thing about which one is uneasy has either not happened, or happened a long time ago, and perhaps to another organisation.” James Reason

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 25 PATHOLOGICAL Who cares as long as we’re not caught REACTIVE Safety is important, we do a lot every time we have an accident CALCULATIVE We have systems in place to manage all hazards PROACTIVE We work on the problems that we still find GENERATIVE Safety is how we do business round here Increasing Informedness Increasing Trust & Accountability Professor Patrick Hudson WHS leadership

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. 26 Covey’s approach and due diligence AREA OF WHS INFLUENCE AREA OF WHS CONCERN

© Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. Activity  Highest risks  Risk controls  How effective are the risk controls?  How can we make them more effective? 27

adelaide | brisbane | canberra | melbourne | newcastle | perth | sydney | upper hunter © Sparke Helmore Lawyers 2013Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege. Questions?