steve bell - herbert smith freehills - legal obligation management

Steve Bell Partner, +61 9288 1236 [email protected]

17 SEPTEMBER 2015

LEGAL OBLIGATION MANAGEMENT NATIONAL SAFETY CONFERENCE

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LEGAL COMPLIANCE MANAGEMENT

1. Know the legal regime that applies

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OVERVIEW OF SAFETY LAWS

WHS ACT

Outlines general safety duties

eg. Primary Duty, Duty in respect of

workplaces

WHS Regulations

Sets requirements for managing common risks

E.g. manual handling, falls,

noise, hazardous substances, plant, confined spaces

INDUSTRY SPECIFIC

LEGISLATION

Deals with safety issues in particular industries

E.g. Rail, heavy vehicles

ACTIVITY SPECIFIC

LEGISLATION

Deals with specific activities /

risks

E.g. Electricity / Dangerous goods

General Industry Work Mode

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OVERLAPPING SAFETY LAWS IN QLD

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CONSTRUCTION PROJECT ON AN ONSHORE FACILITY

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2. Be aware of legal developments and changes

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SOME LEGAL DEVELOPMENTS IN 2014 - 2015

• Heavy Vehicle National Law Amendment Bill 2015 introduced • Work Health Safety and Other Legislation Amendment Bill 2015

introduced

• Work Health and Safety Amendment (Miscellaneous) Regulation 2015 made 97 changes to the State Work Health and Safety Regulation 2011.

• Mirror Work Health and Safety (Mines) Act 2013, Work Health and Safety (Mines) Regulation 2014 and Rail Safety (Adoption of National Law) Amendment (Drug and Alcohol Testing) Regulation 2014 came into force

• Mine safety laws to be strengthened under plan to implement recommendations of the Hazelwood Coal Mine fire inquiry.

• Occupational Health and Safety Regulations 2007 amended to include a higher threshold for construction projects.

• Planning, Building and Environment Legislation Amendment Bill 2015 passed Parliament

• Red Tape Reduction Legislation Amendment Bill 2015 introduced

• Model WHS Regulations' chapter on asbestos adopted

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• Steering committee formed to review and improve its mine safety laws

• WorkCover SA renamed Return to Work SA – Return to Work Act 2014

• SA New WHS Regulations commenced • Various amendments to laws regarding

dangerous substances, fees under the Heavy Vehicle National Law, and inspectors powers under the Rail Safety National Law

• EnergySafety introduced tighter safety regulations

• New "chain of responsibility" provisions added

• Workers Rehabilitation and Compensation Legislation Amendment Bill 2015 passed Parliament

• Return to Work Legislation Amendment Bill 2015 introduced

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FEDERAL: • Work Health and Safety Regulations 2011 updated • Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 passed through House of Reps. • Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 passed the House of Representatives and moved to the

Senate • Safety, Rehabilitation and Compensation Amendment (Exit Arrangements) Bill 2015 introduced • The Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 passed Parliament


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OPENING UP THE COMCARE SCHEME?

Dissenting Report: “The proposed amendments significantly extend the ability of private sector employers to become self-insurers under Comcare. [Dissenting] Senators were not persuaded that this is appropriate.”

Committee Report: “While the committee recognises that Comcare will need to adjust and increase its workforce accordingly, it maintains that legislative change is still necessary to significantly reduce compliance costs, simplify processes and boost productivity and efficiency for businesses that operate and employ across multiple jurisdictions.

As the amendments implement the specific recommendations of a number of reviews and inquiries to remove the 'national employer test' and enable the Commission to grant 'group employer licenses', the committee can see no reason for the legislation to be delayed.”

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3. Don’t assume harmonised laws are harmonised laws


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HARMONISATION WILL NOT COME TO VICTORIA

The Victorian Government has stated that it will not be adopting the model work health and safety laws in their current form.

WorkSafe continues to enforce Victoria's existing occupational health and safety (OHS) laws.

Victoria's Occupational Health and Safety Regulations 2007 will expire in 2017, ten years after they were made. WorkSafe is currently undertaking work to review and make new regulations by this date. Victorian workplaces should refer to WorkSafe's codes and guidance materials for information about how to comply with Victoria's occupational health and safety laws.

Victorian codes and guidance materials are specifically designed to inform duty holders as to how they can comply with Victorian occupational health and safety laws. Model Work Health and Safety codes and guidance materials are designed to support the national model laws and are not designed to support Victorian occupational health and safety laws. In some situations, they may provide useful guidance.

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RIGHT TO SILENCE AND USE OF INFORMATION

ACT NSW NT QLD SA TAS VIC WA Right to silence ! ! ! ! " ! " ! Answers and information obtained directly can be compelled but cannot be used against you in court proceedings

" " " " ! " ! "

Answers and information obtained directly or indirectly can be compelled but cannot be used against you in court proceedings

" ! ! " ! ! ! !

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4. Understand your responsibilities in a contractual chain


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4. Understand your responsibilities in a contractual chain


5. Be aware that legal requirements lag safety practice

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REGULATOR GUIDANCE ON D&A TESTING

“The decision to use alcohol and other drug testing should be made in consultation with employees, OHS representatives and union representatives.

Privacy, confidentiality and the legal position of employees and management also need to be considered.

However, WorkCover recommends that alcohol and other drug testing only be implemented as part of a comprehensive alcohol and other drug program with appropriate safeguards, clear policy and procedures, and provision of education and counselling. If utilised, testing should act as a deterrent, not a mechanism to ‘catch people out’.

Other less invasive strategies should be investigated before making a decision to introduce testing.

Workplace alcohol and other drug testing should be introduced if there are existing legislative provisions, such as those relating to rail safety workers, passenger transport workers and heavy vehicle drivers. There is also legislation prohibiting employees from working while intoxicated in the mining and aviation industries.”

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THE ‘BIG PICTURE’ – BEYOND LEGAL COMPLIANCE?

Policies, procedures and standards

supported by and supporting

Oversight, accountabilities, consultation and flexibility

supported by and supporting

Leadership

Risk management

The detail

A culture of risk identification and control

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