1. www.kellyco.com.au | www.kellyco.com.au Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April 2013 Kelly & Co.

2. www.kellyco.com.au | Page 2 Overview  Duties of volunteer Board members & managers on safety matters  Penalties for non-compliance  What it means in practical terms  Case study

3. www.kellyco.com.au | Page 3 Duties of Volunteer Board Members & Managers  Workplace health & safety laws impose personal liability  Duties apply to “officers”:  company directors & secretaries  decision-makers  people who influence a business' financial standing  people whose instructions affect Directors’ decisions  The duty is to exercise “due diligence” in safety matters

4. www.kellyco.com.au | Page 4 Due Diligence Duty of Officers Due Diligence Verify Comply Monitor Know Understand Resource

5. www.kellyco.com.au | Page 5 The Due Diligence Duty of Officers  Obtain knowledge about work health & safety matters  Understand business operations & the associated hazards and risks  Resource health & safety appropriately  Monitor trends in safety performance  Implement compliance processes  Verify compliance

6. www.kellyco.com.au | Primary Penalties PCBUOfficerWorker Category I Intentional or reckless indifference to potential for death or serious harm $3 million$600,000 5 years gaol $300,000 5 years gaol Category II Failure to comply with safety duty with risk of death, serious injury or illness $1.5 million$300,000$150,000 Category III Failure to comply with safety duty $500,000$100,000$50,000 Criminal penalties are uninsurable

7. www.kellyco.com.au | Page 7 What it Means in Practical Terms Chairman  Ensure Board members receive training in safety matters  Ensure the Board receives regular safety reports  Ensure operational sites are visited regularly

8. www.kellyco.com.au | Page 8 What it Means in Practical Terms Board Members  Show leadership on safety matters  Be inquisitive about safety information & resourcing decisions  Examine audit compliance results carefully  Ask the right questions  Get to know your key safety personnel  Hold management accountable for safety performance

9. www.kellyco.com.au | Page 9 What it Means in Practical Terms Secretary  Ensure safety reports & compliance audits are provided to the Board  Ensure resourcing decisions have a safety impact assessment  Arrange meetings & training for Board members  Keep records of Board decisions

10. www.kellyco.com.au | Page 10 What it Means in Practical Terms Managers  Show leadership on safety matters  Attend & participate in safety training  Carefully scrutinise safety information & resourcing decisions  Verify that the correct information is being provided to the Board  Be on the lookout for relevant developments in health & safety matters  Oversee the delivery of legal compliance measures

11. www.kellyco.com.au | Page 11 Case Study: The Facts Employer operated a hotel business ? Child accessed semi-enclosed area to retrieve a tennis ball Pipe collapsed, child was electrocuted and died Employer and its Directors were prosecuted Inspector Aldred v Herbert & Ors [2007] NSWIRComm 170

12. www.kellyco.com.au | Page 12 Case Study: The Outcome  Not acceptable for Directors to adopt a passive role on safety matters  Reliance on competent & experienced management is not sufficient  Directors must personally and proactively take steps to verify compliance with safety obligations  Employer fined $150,000 & each Director $12,000

13. www.kellyco.com.au | Page 13 Kelly & Co. Lawyers Level 21, Westpac House 91 King William Street Adelaide SA 5000 T: +61 8 8205 0800 F: +61 8 8205 0805 www.kellyco.com.au