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

2. Freehills 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. Freehills 3 Part 1: Where we are now

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

5. Freehills 5 Health and safety laws: Overview Occupational health and safety laws: State based (or Federal), to be harmonised Industry-specific legislation: Includes Mines, Petroleum. Work mode specific legislation: Example, heavy vehicle ‘chain of responsibility’ laws, electrical safety laws

6. Freehills 6 Part 2: Key concepts and new terms

7. Freehills 7 Legal issues following a workplace incident Workers’ compensation issues Workplace injury or ‘near miss’ Consequences: Strict liability (blame not an issue) Money to injured worker, in some cases to dependants Obligations to return to work Occupational health and safety issues Occupational health and safety issues Other legal claims 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

8. Freehills 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. Freehills 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. Freehills 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. Freehills 11 Legal comparisons, old and new Old lawsModel Laws Primarily based around the employment relationship, with others ‘deemed’ or associated with primary duties Primary duties owed to all ‘workers’ who ‘perform work for’ the entity Contractor management a key issue Various ‘upstream duties’Clarifies upstream duties, manufacturers, suppliers, constructors Standard of duty varies across different jurisdictions All jurisdictions will require duties to be discharged ‘so far as reasonably practicable’

12. Freehills 12 Legal comparisons, old and new Old lawsModel Laws Duty to consult with employeesDuty to consult, co-ordinate and co-operate with other duty holders as well as ‘workers’ Some jurisdictions prohibit unlawful discrimination on safety grounds All jurisdictions will prohibit unlawful discrimination on safety grounds Some detail expressed in Regulations Significant detail expressed in Model Regulations on a range of hazards and processes

13. Freehills 13 Legal comparisons, old and new Old lawsModel Laws Maximum penalties around $1million per offence Maximum penalties: $3 million for Category 1 offence $1.5 million for Category 2 offence Right of entry provisions variable across jurisdictions Right of Entry harmonised. Right to enter for safety breach, but also to ‘consult’ with workers. Right to silence enshrined in most national laws Right to silence abolished, with limited ‘use immunity’ (That is, greatly increased powers of investigators when things go wrong)

14. Freehills 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. Freehills 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. Freehills 16 Part 3: Particular issues arising for overseas travel

17. Freehills 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. Freehills 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. Freehills 19 Legal factors for and against: Duty to ‘workers’ Duty under WHS Act Factors that tend to strengthen the connection to Australia (and so increase the likelihood of a legal duty under the WHS Laws) Factors that tend to lessen the connection to Australia (and so decrease the likelihood of a legal duty under the WHS Laws) Duty to ‘workers’ Australian management team exercise a high degree of control over the work being undertaken and how the work is performed. Australian management team closely supervises the day to day activities of the work. The relevant worker is based in Australia, but seconded, or deployed on temporary assignment overseas. The relevant work is being undertaken on behalf of the Australian management team. Decisions that would affect the safety of the work being undertaken by the worker are made in Australia. Foreign management team exercise control over the work activities being undertaken by overseas based employees and contractors. Australian management team do not supervise the work being undertaken. The Worker is a foreign national and permanently based overseas. The work is being undertaken on behalf of a local management team with little relationship to operations in Australia. The work being undertaken rarely requires contact with Australian office.

20. Freehills 20 Legal factors for and against Duty under WHS Act Factors that tend to strengthen the connection to Australia (and so increase the likelihood of a legal duty under the WHS Laws) Factors that tend to lessen the connection to Australia (and so decrease the likelihood of a legal duty under the WHS Laws) Duty in respect of workplaces  The workplace is owned or rented by the entity either directly or indirectly.  Australian management team effectively undertakes work (through workers engaged or directed by it) from that workplace.  Australian management team exercises management or control over the workplace itself.  Australian management team dictate that workers will operate from a particular place.  The workplace is owned/rented by a third party.  The workplace is under the management or control of third party (e.g. maintenance of the property - such as checking the fire extinguishers is undertaken by other personnel ).  The work and the location of where it is to be undertaken is determined by foreign management.

21. Freehills 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. Freehills 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. Freehills 23 WHS Laws: Risk mitigation In order to manage this risk, employers should: 1.Identify duties applicable to workers travelling or based in Australia and overseas and relevant stakeholders 2.Review existing safety management systems, and undertake a gap analysis 3.Update policies and procedures as necessary 4.Consider whether current consultation arrangements are adequate to allow for consultation with workers about the risks associated with their work 5.Identify who are ‘officers’ of the business or undertaking and develop a process of exercising due diligence

24. Freehills 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. Freehills 25 Part 4: ‘Due diligence’

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

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

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