Workplace Health

1
(No Transcript)
2
Workplace Health SafetyThe Legal Framework

• Presented by
• Trent Forno
• Partner
• Samantha Betzien
• Partner

3
Why is OHS important?

• 1. Health and Safety of employees
• 2. Cost to the business
• workers compensation premiums
• lost time/replacement employees
• 3. Legal sanctions
• exposure of company and individuals
• Criminal consequences for failure to comply with
  health and safety laws.

4
Statistics Trends

• In Queensland, 3 top claim areas are
• musculoskeletal
• stress/mental disorders
• fractures
• Stress-related claims now account for nearly 11
  of all claims
• Roughly double the amount of compensation is paid
  to workers suffering from stress compared to
  other physical injuries
• Manual handling claims remain high

5
Workplace Health Safety Queensland

• ? enforcement activity
• Workplace blitzes
• ? focus on individual liability for OHS offences

6
Basic state of OHS law

• Workplace Health Safety Act 1995
• Workplace Health Safety Regulations
• Codes of Practice
• Australian Standards
• Workplace Health Safety Guidelines
• National OHS system?

7
Duties under WHS Act

• Duty is to ensure health and safety of workers
  and others in the workplace
• Absolute duty
• In an accident occurs, you have not ensured
  safety and have breached the Act
• Must then prove a defence
• Prosecution still possible even if no injury has
  occurred

8
Defences

• Followed a Regulation
• If no regulation, followed a Code of Practice
• If neither, took reasonable precautions and
  exercised proper diligence
• Once you have an accident, defences are difficult
  to establish.

9
OHS Law

• Who is responsible for health safety at
  workplace?

Senior Management Managers/Supervisors Employee
s
Employee
Contractor
Board
Visitor
Members of public
10
Liability of Executive Officers

• If a company contravenes the Act/regulations, the
  officer is guilty of an offence
• Officer must then prove a defence
• Defence if exercised reasonable diligence

11
Liability of Executive Officers (cont.)

• Executive Officer is a wide definition
• Anyone concerned in the management of the
  corporation and can include
• Directors
• The CEO
• Senior Managers with responsibility for safety

12
Duty on workers

• Must comply with instructions
• Use PPE
• Not wilfully or recklessly misuse anything
  provided for health and safety
• Not wilfully place others or themselves in danger

13
Case Studies

• Kumar v Owens Container Services
• 2 directors company prosecuted
• employee killed in an explosion whilst cleaning
  tank
• company fined 160,000
• CEO found guilty despite being based in NZ
• Ballarat Radio
• first bullying prosecution in Victoria (fines
  50,000 10,000)

14
Case Studies (cont.)

• Thomas v Benecke
• Manual Arts teacher prosecuted
• Student killed when a drum of diesel exploded
• Teacher pleaded guilty to wilfully placing
  student at risk
• 12 months imprisonment (wholly suspended)

15
7 key ways to manage OHS risks

• policies procedures
• training awareness of duties
• identify risks (eg risk assessments)
• hazard minimisation/risk control
• ongoing monitoring supervision
• compliance with obligations re WHS reps/
  committee/reporting incidents

16
What happens if you have an accident?

• Obligation to report particular incidents
  penalties if you fail to report a reportable
  incident
• Power of Inspectors wide, penalties for non
  compliance
• Controlling the flow of information
• Interviews
• Remedial action

17
The Bigger Picture

• Duties
• Compliance
• Risk management

18
Interaction between prosecutions and other
proceedings

• Coronial inquest in the event of a fatality
• Personal injuries claims
• Conviction negligence
• Conditions of insurance policy need to be
  carefully considered

19
OHS Harmonisation

• Agreement between Commonwealth and States to
  harmonise OHS laws
• Review panel engaged to make recommendations on
  model laws
• First report released early November

20
OHS Harmonisation (cont.)

• Summary of recommendations
• Overarching duty
• Onus of proof
• Standing to prosecute
• Duties of officers and employees
• Penalties
• Next steps

21
(No Transcript)