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Safety Institute of Australia ACT Division

Safety Institute of Australia ACT Division. Michael Tooma Partner Norton Rose Australia 25 February 2010. Agenda . Model Act in a Snapshot Safety Duties Enforcement Penalty regime Preparing for Model Act. Overview – Road to Harmonisation.

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Safety Institute of Australia ACT Division

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  1. Safety Institute of AustraliaACT Division Michael Tooma Partner Norton Rose Australia 25 February 2010

  2. Agenda • Model Act in a Snapshot • Safety Duties • Enforcement • Penalty regime • Preparing for Model Act

  3. Overview – Road to Harmonisation • Model OHS Act – Workplace Health and Safety Act – represents the most significant reform in OHS in over 30 years. This is the culmination of a process which began in April 2008 with the commissioning of a National Review into Model OHS Laws. • The Advisory Panel consisted of: • Robyn-Stewart Crompton • Commissioner Stephanie Mayman • Norton Rose Australia Partner Barry Sherriff • The panel delivered its first report on 31 October 2008 and its final report on 30 January 2009.

  4. Draft Model Laws were released for public comment in October 2009. • Public consultation process closed on 9 November 2009. • WRMC approved final draft of the Model Laws on 11 December 2009. • Laws will commence on 1 January 2012.

  5. Change of Approach to Duty

  6. Person Conducting a Business or Undertaking Volunteer

  7. Safety Duties • Ensure so far as is reasonably practicable the health and safety at work of: • Workers engaged or caused to be engaged by the person • Workers whose activities in carrying out work are influenced or directed by the person • Workers of a prescribed class • Ensure so far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

  8. 1.A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work:(a) as an employee(b) as a contractor or sub-contractor(c) as an employee of a contractor or sub-contractor(d) as an employee of a labour hire company who has been assigned work in the person's business or undertaking(e) as an outworker(f) as an apprentice or trainee(g) as a student gaining work experience(h) as a volunteer.2.The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

  9. A workplace is a place where work is carried out for a business or undertaking, and includes any place where a worker goes, or is likely to be, while at work.Place includes:(a) vehicle, ship, boat, aircraft or other mobile structure (b)any installation on land, on the bed of any waters or floating on any waters.

  10. Section 9 of Corporations ActIncludes officers of public sector Due diligence

  11. Officers’ Duty • Proactive duty to exercise due diligence – that is, it is a duty and not just a liability. • Duty applies regardless of breach by body or risk to health and safety. Officer must exercise due diligence to ensure that the body complies with its duty. Failing to have systems in place to ensure compliance is arguably a breach of that duty. • The compliance is with the duties under the Act not a standard or another reference document. That is, it has a legal context or grounding compliance with which must be verified.

  12. Enforcement Options • Non-disturbance notices • Improvement notices • Prohibition notices • Regulator remedial action • Injunctions • Enforceable OHS undertakings • Prosecutions

  13. Enforcement - Prosecutions • Penalties • Adverse publicity orders • Orders for restoration • Community service orders • Court Ordered OHS Undertaking • Injunctions • Training orders

  14. Penalty Regimes • There are three categories of offences with the highest category attracting a maximum penalty of $3 million. • The following table represents the penalties for breaches of the safety duties

  15. Table of Penalties

  16. So, what should you do to prepare?- the Norton Rose top 10 Undertake a legal risk analysis Undertake a gap analysis Review, revise and supplement policies and procedures (remember current consultation obligations) Implement – including training and ongoing review Review contracts – many will operate under the new laws Design and implement interface co-ordination processes and plans Develop effective representation and consultation processes Develop robust issue resolution processes Ensure effective processes for union right of entry Review and revise all aspects of corporate governance in WHS to ensure effective management and ‘due diligence’ compliance

  17. What you can do to comply People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review TWENTY ELEMENTS

  18. The Inner Core – Safety Leadership Commitment Resources Implementation People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  19. The Second Layer – Operational Defences Design Premises Plant Substances Process Procurement People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  20. The Outer Core – Human Factors People Contractors Suppliers Clients People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  21. System Supports – Human Factors Systems Training Consultation Supervision Incentives People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  22. Center Support – Planning for the Unthinkable Critical risk controls People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  23. Tail End Support - Responding Emergency management People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  24. System Foundation – System Health System performance assessment and review People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  25. Due Diligence Due diligence framework People Contractors Premises Design Plant OHS Implementation Plan Commitment Resources Procurement Substances Processes Suppliers Clients Consultation Incentives Training Supervision Critical Risk Control Emergency Response and Business continuity System Performance Assessment and Review

  26. Leadership Culture Minimum standards for underlying system: AS 4801 Legal compliance Auditing requirements Performance reporting Benchmarking

  27. Components of a Safety Culture

  28. Components of a Safety Culture Involves creating a safety information system that collects, analyses and disseminates information from incidents and near-misses as well as from regular proactive checks on the system’s vital signs.

  29. Components of a Safety Culture An informed culture requires a climate where people are prepared to report their errors and near-misses.

  30. Components of a Safety Culture Reporting depends on an atmosphere of trust in which people are encouraged to provide safety-related information and where there is a clear line between acceptable and unacceptable behaviour

  31. Components of a Safety Culture The ability to reconfigure the organisation in the face of danger, i.e. where control passes to task experts on the spot where the circumstances require it.

  32. Components of a Safety Culture An ability and willingness to draw the right conclusions from its safety information and to implement corresponding reforms.

  33. Questions?

  34. Michael Tooma Partner Norton Rose Australia +61293308108 +61(0)410633858 michael.tooma@nortonrose.com www.nortonrose.com

  35. Our international practice

  36. FINANCIAL INSTITUTIONS ENERGY INFRASTRUCTURE AND COMMODITIES TRANSPORT TECHNOLOGY

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