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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.

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

www.kellyco.com.au | www.kellyco.com.au

Workplace Health & Safety: It’s Personal

Disability Information & Resource Centre

Clare Raimondo, Partner4 April 2013

Kelly & Co.

Page 2: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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Overview

Duties of volunteer Board members & managers on safety matters

Penalties for non-compliance

What it means in practical terms

Case study

Page 3: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 4: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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Due Diligence Duty of Officers

Due Diligence

Verify

Comply

Monitor

Know

Understand

Resource

Page 5: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 6: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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Primary Penalties

PCBU Officer Worker

Category IIntentional or reckless indifference to potential for death or serious harm

$3 million $600,000

5 years gaol

$300,000

5 years gaol

Category IIFailure to comply with safety duty with risk of death, serious injury or illness

$1.5 million $300,000 $150,000

Category IIIFailure to comply with safety duty

$500,000 $100,000 $50,000

Criminal penalties are uninsurable

Page 7: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 8: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 9: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 10: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 11: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 12: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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

Page 13: Www.kellyco.com.au |  Workplace Health & Safety: It’s Personal Disability Information & Resource Centre Clare Raimondo, Partner 4 April

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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