Wednesday, May 26, 2010
Unprepared directors face jail under model safety laws; and more
Unprepared directors face jail under model safety laws
Company directors and other officers could face up to five years in jail for safety failures under model OHS laws, regardless of whether their company has committed a breach, a Norton Rose Lawyers report warns.
And employers, it says, should be auditing their processes and preparing officers now.
"Officers may currently be liable for offences committed by the corporation that are attributable to a failure of the officer to meet a relevant standard [such as] due diligence or reasonable care," the report says.
"Under the model Act, officers may be liable even in the absence of a breach by the company [if they fail] to exercise due diligence to ensure compliance by the corporation."
According to the report, the Commonwealth Work Health and Safety Act, which is due to take effect in January 2012, defines an "officer" as a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business (as found in s9 of the Corporations Act).
The Act will require officers to take "positive steps" to ensure businesses comply with their OHS obligations, it says, and penalties for failing to do so - at a maximum $600,000 and/or five years' jail - will be "significantly higher" than under current regimes.
Company directors and other officers could face up to five years in jail for safety failures under model OHS laws, regardless of whether their company has committed a breach, a Norton Rose Lawyers report warns.
And employers, it says, should be auditing their processes and preparing officers now.
"Officers may currently be liable for offences committed by the corporation that are attributable to a failure of the officer to meet a relevant standard [such as] due diligence or reasonable care," the report says.
"Under the model Act, officers may be liable even in the absence of a breach by the company [if they fail] to exercise due diligence to ensure compliance by the corporation."
According to the report, the Commonwealth Work Health and Safety Act, which is due to take effect in January 2012, defines an "officer" as a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business (as found in s9 of the Corporations Act).
The Act will require officers to take "positive steps" to ensure businesses comply with their OHS obligations, it says, and penalties for failing to do so - at a maximum $600,000 and/or five years' jail - will be "significantly higher" than under current regimes.
Wednesday, May 19, 2010
Worker sacked for drink driving outside work hours fails in appeal
A brewery's drug and alcohol policy that prohibited workers from driving under the influence - whether on company time or not - was reasonable, a FWA full bench has ruled in dismissing a sacked worker's appeal. Also in this article, FWA has found that a worker's "pre-work" alcohol reading warranted his dismissal.
In March 2009 the process worker, employed by Lion Nathan subsidiary J Boag and Son Brewing Pty Ltd, was sacked for breaching the company's drug and alcohol policy after he was charged with drink driving - outside of working hours.
He lodged an unfair dismissal claim, but in October 2009 proceedings (see In an unrelated case...) AIR Commissioner Barbara Deegan found the dismissal wasn't harsh, unjust or unreasonable.
"There is no doubt that the [worker] was aware of the employer's responsible drinking policy," she said.
"The policy was clear that drinking to excess and driving outside of work hours, even on personal business and in a private car, would be a breach of that policy."
Commissioner Deegan said that while not every workplace policy that attempted to constrain employee activities outside of work was necessarily reasonable, one that directed workers to refrain from criminal conduct that could have a deleterious impact on the business could be deemed legitimate.
"A manufacturer of weapons or fireworks would have a legitimate interest in ensuring that its employees did not use its products in a manner which was contrary to law, might bring the product into disrepute or could contribute to the case for greater restriction on sales or even complete prohibition of the product," she said.
"In my view the same applies to a manufacturer of alcohol."
The worker appealed, arguing before an FWA full bench that Commissioner Deegan had failed to consider whether the sacking was harsh, in that it was a disproportionate response to the incident.
But Senior Deputy Presidents Jennifer Acton and Matthew O'Callaghan, and Commissioner Anna Lee Cribb rejected the claim, finding Commissioner Deegan had taken into account the worker's good employment record; his skill levels and age; his awareness of the policy and the consequences for breaching it; and his blood alcohol level (of 0.154) at the time he was charged.
The blood alcohol level, the bench noted, did not need to be addressed to establish whether the termination was reasonable. However, it was a fact "weighing against a conclusion that Boag's termination of [the worker's] employment was a disproportionate response".
Mr Nick Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258 (3 May 2010)
Contact Safety For Life for an Alcohol & Drug Program
In March 2009 the process worker, employed by Lion Nathan subsidiary J Boag and Son Brewing Pty Ltd, was sacked for breaching the company's drug and alcohol policy after he was charged with drink driving - outside of working hours.
He lodged an unfair dismissal claim, but in October 2009 proceedings (see In an unrelated case...) AIR Commissioner Barbara Deegan found the dismissal wasn't harsh, unjust or unreasonable.
"There is no doubt that the [worker] was aware of the employer's responsible drinking policy," she said.
"The policy was clear that drinking to excess and driving outside of work hours, even on personal business and in a private car, would be a breach of that policy."
Commissioner Deegan said that while not every workplace policy that attempted to constrain employee activities outside of work was necessarily reasonable, one that directed workers to refrain from criminal conduct that could have a deleterious impact on the business could be deemed legitimate.
"A manufacturer of weapons or fireworks would have a legitimate interest in ensuring that its employees did not use its products in a manner which was contrary to law, might bring the product into disrepute or could contribute to the case for greater restriction on sales or even complete prohibition of the product," she said.
"In my view the same applies to a manufacturer of alcohol."
The worker appealed, arguing before an FWA full bench that Commissioner Deegan had failed to consider whether the sacking was harsh, in that it was a disproportionate response to the incident.
But Senior Deputy Presidents Jennifer Acton and Matthew O'Callaghan, and Commissioner Anna Lee Cribb rejected the claim, finding Commissioner Deegan had taken into account the worker's good employment record; his skill levels and age; his awareness of the policy and the consequences for breaching it; and his blood alcohol level (of 0.154) at the time he was charged.
The blood alcohol level, the bench noted, did not need to be addressed to establish whether the termination was reasonable. However, it was a fact "weighing against a conclusion that Boag's termination of [the worker's] employment was a disproportionate response".
Mr Nick Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258 (3 May 2010)
Contact Safety For Life for an Alcohol & Drug Program
Managers to face hefty OHS fines and jail in line with global trend
Australia's senior managers will increasingly face hefty OHS fines and even imprisonment as regulators and law makers attempt to tackle what is one of the highest workplace fatality rates in the developed world, according to Norton Rose Lawyers partner Michael Tooma.
"We repeatedly pat our backs for our health and safety performance, and I don't know why," Tooma told delegates at a seminar on corporate manslaughter laws in Sydney this morning.
On average, more than one worker is killed on the job every day, he says. There is a global trend towards holding those in senior managerial positions to account for safety breaches, and Australia is beginning to follow it.
Tooma's comments follow the recent conviction of Victorian employer Orbit Drilling Pty Ltd and its managing director for "recklessly endangering" a worker, who was killed when the Mack truck he was driving overturned on a steep off-road slope.
They were fined a combined total of $870,000 after the County Court found the truck's brakes were in deplorable condition, and the 21-year worker - who had held his truck licence for little more than two weeks - was inadequately trained.
An Orbit Drilling supervisor has also been charged over the incident, and could face up to five years in jail.
According to Tooma, corporate manslaughter or similar provisions have been "on the statutory books for a long time", but never used - until now.
The Orbit Drilling case was the first conviction under s32 of the Victorian Occupational Health and Safety Act 2004, he says, but "you're going to see a gravitation towards the use of those kinds of prosecutions".
Safety must be more than "bolt on"
High-profile London QC Gerard Forlin, who was the guest speaker at the seminar, says in Canada safety is the first agenda on business meetings, because managing directors are directly responsible for OHS outcomes.
In Canada, the UK (which has recently enacted the Corporate Manslaughter and Corporate Homicide Act 2007) and many other countries, the "board" must be able to prove - in the event of an OHS incident - that it knows "what's going on" with safety, and that safety is a core part of business, as opposed to a "bolt on".
The new corporate manslaughter laws in Britain, Forlin says, have dispensed with the need "to find a controlling or directing mind that is also personally guilty" of a breach.
In the past, managing directors of smaller companies were ending up in prison over workplace fatalities, while larger faceless organisations were escaping conviction for similar breaches, he says.
But now boards - and the "suits" that sit on them - can and have been held to account.
Australia will follow this lead, Tooma says.
"It's a problem of our own making," he says. Our high per capita workplace fatality rate, and the recent spate of on-the-job deaths in Western Australia, Victoria and other jurisdictions, have added "further fuel to the fire".
Safety For Life - Safety Business Review
"We repeatedly pat our backs for our health and safety performance, and I don't know why," Tooma told delegates at a seminar on corporate manslaughter laws in Sydney this morning.
On average, more than one worker is killed on the job every day, he says. There is a global trend towards holding those in senior managerial positions to account for safety breaches, and Australia is beginning to follow it.
Tooma's comments follow the recent conviction of Victorian employer Orbit Drilling Pty Ltd and its managing director for "recklessly endangering" a worker, who was killed when the Mack truck he was driving overturned on a steep off-road slope.
They were fined a combined total of $870,000 after the County Court found the truck's brakes were in deplorable condition, and the 21-year worker - who had held his truck licence for little more than two weeks - was inadequately trained.
An Orbit Drilling supervisor has also been charged over the incident, and could face up to five years in jail.
According to Tooma, corporate manslaughter or similar provisions have been "on the statutory books for a long time", but never used - until now.
The Orbit Drilling case was the first conviction under s32 of the Victorian Occupational Health and Safety Act 2004, he says, but "you're going to see a gravitation towards the use of those kinds of prosecutions".
Safety must be more than "bolt on"
High-profile London QC Gerard Forlin, who was the guest speaker at the seminar, says in Canada safety is the first agenda on business meetings, because managing directors are directly responsible for OHS outcomes.
In Canada, the UK (which has recently enacted the Corporate Manslaughter and Corporate Homicide Act 2007) and many other countries, the "board" must be able to prove - in the event of an OHS incident - that it knows "what's going on" with safety, and that safety is a core part of business, as opposed to a "bolt on".
The new corporate manslaughter laws in Britain, Forlin says, have dispensed with the need "to find a controlling or directing mind that is also personally guilty" of a breach.
In the past, managing directors of smaller companies were ending up in prison over workplace fatalities, while larger faceless organisations were escaping conviction for similar breaches, he says.
But now boards - and the "suits" that sit on them - can and have been held to account.
Australia will follow this lead, Tooma says.
"It's a problem of our own making," he says. Our high per capita workplace fatality rate, and the recent spate of on-the-job deaths in Western Australia, Victoria and other jurisdictions, have added "further fuel to the fire".
Safety For Life - Safety Business Review
Behaviour-based safety initiatives expose employers to legal risks
Employers that aim to improve safety by focusing on worker behaviour, rather than hazards, risk creating a counter-productive blame culture and turning the hierarchy of controls "on its head", according to a new report from Britain's Trade Union Congress.
"It is not worker behaviour that should be the focus of action to improve safety but management behaviour, because management are in control of work and... make the decisions about workplace health and safety," the report, Behavioural Safety, states.
"The way to prevent injuries and illnesses is to remove the risks caused by hazards in the workplace. That means doing a risk assessment and, where there is a risk, acting on it.
"You prevent someone who is operating a guillotine from cutting off their hand by ensuring the machine is properly guarded and the blade cannot operate if there is any obstruction, not by teaching the operator to keep their hands out of the way."
Idiot-proof systems essential
According to the report, "behavioural safety" is the name given to strategies aimed at improving workplace safety by changing the conduct of employees. Central to these strategies, which are usually developed by management consultants, is the belief that most workplace injuries and illnesses result from "unsafe acts", it says. Indeed, some consultancies claim that as many as 96 per cent of injuries are caused by employee error, and only four per cent by unsafe conditions.
But these figures tend to be calculated from accident reports compiled by line managers, without questioning managers' claims or considering such factors as required work speeds, productivity levels and shift patterns, the report says. "Behavioural safety is founded on a wrong premise, which is that it is workers who cause injuries," it says.
"[But] before an 'unsafe behaviour' can cause an injury there has to be a hazard. If you remove the hazard, you eliminate the risk of exposure. "It is better to develop a system that is idiot-proof rather than have a health and safety system that is based on a worker doing what they have been trained and told to do."
Behaviour modification reverses control hierarchy
Many workplace injuries are caused by multiple factors resulting from a "failure to implement a safe system of work", and a focus on fixing the unsafe actions of workers "turns the hierarchy of controls on its head", the report says.
"Behaviour modification programs favour PPE and training as the main ways of preventing injury," it says. But employers that go down this path are at risk of breaching safety laws.
The elimination of hazards is critical, it says, and must be a priority.
Work-induced hearing loss, for example, is best prevented by reducing noise, rather than "giving workers ear protectors or advising them to stay away from noisy areas".
The report also warns against rewarding workers for accident-free periods, or punishing - through counselling, for instance - seemingly injury-prone staff.
"Where prizes or bonuses are offered to a group of workers, such as a single department, it can lead to resentment by work colleagues against an employee who is injured, as they may be blamed for the others losing their bonus," it says.
"This leads to workers failing to report injuries or near misses."
The report acknowledges that training workers in safe ways of working is "an important vehicle" for reducing injury and illness rates.
"However it is not a substitute for removing or controlling the risk," it says.
So, in light of this information, when you do last undertaken a Workplace Inspection?
Are you compliant? Are you managing your risk?
Safety for Life Pty Ltd
"It is not worker behaviour that should be the focus of action to improve safety but management behaviour, because management are in control of work and... make the decisions about workplace health and safety," the report, Behavioural Safety, states.
"The way to prevent injuries and illnesses is to remove the risks caused by hazards in the workplace. That means doing a risk assessment and, where there is a risk, acting on it.
"You prevent someone who is operating a guillotine from cutting off their hand by ensuring the machine is properly guarded and the blade cannot operate if there is any obstruction, not by teaching the operator to keep their hands out of the way."
Idiot-proof systems essential
According to the report, "behavioural safety" is the name given to strategies aimed at improving workplace safety by changing the conduct of employees. Central to these strategies, which are usually developed by management consultants, is the belief that most workplace injuries and illnesses result from "unsafe acts", it says. Indeed, some consultancies claim that as many as 96 per cent of injuries are caused by employee error, and only four per cent by unsafe conditions.
But these figures tend to be calculated from accident reports compiled by line managers, without questioning managers' claims or considering such factors as required work speeds, productivity levels and shift patterns, the report says. "Behavioural safety is founded on a wrong premise, which is that it is workers who cause injuries," it says.
"[But] before an 'unsafe behaviour' can cause an injury there has to be a hazard. If you remove the hazard, you eliminate the risk of exposure. "It is better to develop a system that is idiot-proof rather than have a health and safety system that is based on a worker doing what they have been trained and told to do."
Behaviour modification reverses control hierarchy
Many workplace injuries are caused by multiple factors resulting from a "failure to implement a safe system of work", and a focus on fixing the unsafe actions of workers "turns the hierarchy of controls on its head", the report says.
"Behaviour modification programs favour PPE and training as the main ways of preventing injury," it says. But employers that go down this path are at risk of breaching safety laws.
The elimination of hazards is critical, it says, and must be a priority.
Work-induced hearing loss, for example, is best prevented by reducing noise, rather than "giving workers ear protectors or advising them to stay away from noisy areas".
The report also warns against rewarding workers for accident-free periods, or punishing - through counselling, for instance - seemingly injury-prone staff.
"Where prizes or bonuses are offered to a group of workers, such as a single department, it can lead to resentment by work colleagues against an employee who is injured, as they may be blamed for the others losing their bonus," it says.
"This leads to workers failing to report injuries or near misses."
The report acknowledges that training workers in safe ways of working is "an important vehicle" for reducing injury and illness rates.
"However it is not a substitute for removing or controlling the risk," it says.
So, in light of this information, when you do last undertaken a Workplace Inspection?
Are you compliant? Are you managing your risk?
Safety for Life Pty Ltd
Friday, May 14, 2010
WHS QLD Medium Size Business Initiative
Workplace Health and Safety Queensland is conducting an initiative that involves every medium sized business across the State. As part of the initiative, WHSQ inspectors will visit every medium sized business in Queensland by 2011 to check the systems they use to meet their workplace health and safety obligations under the Workplace Health and Safety Act 1995
The initiative aims to improve the overall health and safety of Queensland workers and workplaces by:
Safety For Life - Business Review
Our Consultant will attend your workplace for one day to conduct the review, which will consist of the following activities:
Benefits
Costs
The Safety Business Review including report and action plan is $1500 plus GST.
Bookings
To book in for a Safety Business Review please contact Caroline Kingston: 0439 009 620 or email caroline@safetyforlife.com.au
Practical Solutions for Challenging Work Environments
The initiative aims to improve the overall health and safety of Queensland workers and workplaces by:
- reducing the number of injuries and fatalities occurring in their business, with a particular focus on manual tasks
- increasing their awareness and knowledge of workplace health and safety risks and obligations, and,
- improving their capability to effectively manage workplace health and safety risks in consultation with workers
Safety For Life - Business Review
Our Consultant will attend your workplace for one day to conduct the review, which will consist of the following activities:
- Inspection of the workplace and your operations;
- Review of relevant WHS policies and procedures for your business operations
- Review relevant monitoring and reporting mechanisms on the maintenance of those safe systems of work;
- Conduct of interviews with key persons including WHSO, a management representative and an employee representative.
Benefits
- Identify system improvements prior to WHS QLD Inspection
- Improve WHS compliance, standards and conditions
- Reduce likelihood of notices issued by WHS QLD
- Documented Report based on Elements of Safety Business Review
- Documented WHS Action Plan for you Business
Costs
The Safety Business Review including report and action plan is $1500 plus GST.
Bookings
To book in for a Safety Business Review please contact Caroline Kingston: 0439 009 620 or email caroline@safetyforlife.com.au
Practical Solutions for Challenging Work Environments
Subscribe to:
Posts (Atom)