Presented by: Maria Saraceni, Francis Burt Chambers and Agnes McKay, McKay Legal at OHSIG 2014, Friday 12/9/14, Plenary session, 8.30am

1. Work Health and Safety
Changes
- An Australian Perspective
PRESENTED BY PERTH LAWYERS | AGNES MCKAY AND MARIA SARACENI
OHSIG CONFERENCE | AOTEA CENTRE , AUCKLAND
FRIDAY 12 SEPTEMBER 2014

2. Presented by
Agnes McKay
Solicitor Introduction to
the Australian
Landscape
McKay Legal WA
Perth
Western Australia

3. Background to the Australian Context
Parliament and Government

4. Safe work Australia
http://www.safeworkaustralia.gov.au/sites/swa/about/pages/about
Safe Work Australia has the statutory function of developing
national policy relating to work health and safety and has
prepared and has responsibility for the model Work Health
and Safety Act, model Regulations and model codes of
practice relating to work health and safety.

5. AUS Parliaments & Law Making

6. Harmonisation of Model WHS laws
WORK HEALTH AND SAFETY ACT 2011 & REGS
IMPLEMENTED ON 1 JANUARY 2012 BY
◦ Commonwealth
◦ ACT
◦ NSW (officer’s due diligence duties
effected June 2011)
◦ NT
◦ QLD
WORK HEALTH AND SAFETY ACT 2011 & REGS
IMPLEMENTED ON 1 JANUARY 2013 BY
◦ SA
◦ TAS
NB: WHS Act and Regs
not yet introduced in
Victoria or Western
Australia

7. Issues with Harmonisation

8. Presented by
Maria Saraceni
Barrister How well is the
Model WHS Act
working in
Australia?
Francis Burt Chambers
Perth
Western Australia

10. Greater flexibility v greater compliance
costs
Small and large businesses?
High / low risk sectors?

11. What has changed- Q’ld?
- Building contractor failed to comply with Inspector’s direction
to cease working on roof until fall protection in place
- early guilty plea
- 12 month good behaviour bond and $10,000 surety; and
- ordered to undergo safety training by a set date

12. What has changed- NSW?
- two 1.8 m single brick walls collapsed due to strong winds
over a weekend
- 2 persons injured, one seriously
- Manager of bricklaying company charged for failing to
instruct workers not to work near unsupported walls
- Early guilty plea
- Undertaking given
- Ordered to undergo safety training

13. What has changed- ACT ?
- Principal contractor company provided display stands for
art work display
- Engaged engineering subcontractor to assemble stands
- Panels collapsed and people injured
- Principal contractor charged
- Reasonably practicable measures not adopted
i.e. do risk assessment; verify stability of built structure;
not rely on subcontractor’s experience
- Early guilty plea
- Penalty $37,500 ( being 7.5% of maximum)

14. What has changed – ACT (cont) ?
- At construction site, concrete boom collapsed. Employee died.
- Shortly beforehand boom underwent full 6 year inspection
but poor maintenance of boom
- Construction company charged for reckless conduct leading to a death:
max penalty up to $3 million
- Alternative charge against company for failure to comply with OHS duty and
exposing individual to death
- Construction worker charged with reckless conduct leading to a death:
max penalty up to $300,000
- Alternative charge against construction worker for failure to comply with
OHS duty and exposing individual to death
- Currently before the Courts

15. What has changed – ACT (cont) ?
- At construction site truck driver electrocuted when tipped truck trailer to offload
at designated dumping station. Trailer touched overhead power line
- Contracting company charged for failing to meet its duty as PCBU
to do what is reasonably practicable in not exposing workers to hazards
- Officer of contracting company charged for failing to exercise due diligence
- Reasonably practicable measures would have been to undertake risk assessment
as to best place to locate dumping station given environment and general surroundings
- Company (now in liquidation) faces maximum penalty of $1.5 million
- Officer faces maximum penalty of $300,000
- Hearing listed for 17 December 2014

16. ACT Report – Getting Home Safely
Healthy safety culture requirements:
- Visible commitment to safety by management ( “committed leadership”)
- Workforce participation and ownership of safety problems and solutions
- Trust between workers and management
- Good communications
- Competent workforce

17. Act Report – Getting home safely (cont)
Recommendations include:
- Greater co-operation between government agencies to eradicate sham contracting
in construction industry
- Regulators and industry partners to ensure appropriate levels of information and
training for transient workers
- Industry partners to champion building positive and inclusive safety culture
on worksites
- Collaboration between Regulators and industry partners re-training/guidance
on risks
- Greater emphasis on importance of effective task induction
(not merely induction to site)
- National registration of engineers to improve professionalism
- Better training fro project managers

18. Worker participation model
Does the model provide for better levels of participation?
Does the model help workers have the knowledge and accountability
to keep their colleagues safe?

19. Practical lessons for NZ from the
Australian Experience
 Legislative regime
 Legislative limits
 Risk management principles - embed
 Funding of Regulators
 Collaboration between Regulators and industry participants
 Role of Regulator
 Prosecution policy
 Leadership commitment to safety culture
 Engagement/commitment of workers – 3 levels

20. Risk Management
Process:
 Spot the hazard
 Assess the risks
 Make the change
 Evaluate effectiveness of response

21. Heirarchy of Controls

22. Concluding Thought
“ (I)nattention, distraction, preoccupation, forgetting, fatigue and
stress are probably the last and least manageable links in the chain
of events leading to an error. ”
James Reason, 2001

23. What does this mean?

24. Questions?

25. Maria Saraceni Agnes McKay
mariasaraceni@francisburt.com.au info@mckaylegalwa.com.au