Failure to comply with Code of Practice results in officer conviction

In December 2015, a director was convicted by the District Court of New South Wales for his failure to comply with his obligation as an officer under the Work Health and Safety Act 2011 (NSW) (WHS Act) to exercise due diligence (Safe Work NSW v Austral Hydroponics Pty Limited and Eang Lam [2015] NSWDC 295).

The director of Austral Hydroponics ran a business growing greenhouse truss tomatoes and had a relatively small workforce. He instructed one of his employees, Mr Nuon, to remove pliable plastic sheets from the roof of a hot house located at the workplace.

Mr Nuon used a ladder to climb onto the roof of the hot house and stood on the gutter whilst undertaking the task of removing the plastic sheets. As Mr Nuon was trying to pull away damaged plastic on the roof of the hot house, he lost his balance and fell backwards approximately 2.5 metres. He suffered extensive injuries and passed away after remaining in hospital for 17 months.

In considering whether the director had failed to exercise due diligence, the Court commented that the risk posed by workers falling from the roof of the hot house was 'foreseeable and obviously so'. Despite this obvious risk, the director failed to:

• provide Mr Nuon with any training or instructions in relation to how to safely work at heights;
• ensure that a risk assessment of the task being undertaken by Nr Nuon had been conducted;
• prepare a safe work procedure for the task; and
• ensure that Mr Nuon was adequately supervised while he performed the task.

The Court commented that the ways in which the risk of falling from heights could be minimised were clearly set out in the Managing the Risk of Falls at Workplaces Code of Practice (Code of Practice), which was readily available to the director. The Court found that the director 'failed to exercise due diligence by taking reasonable steps to ensure compliance with the Code of Practice'. The director and business were each fined $15,000 and $150,000 for their respective breaches of the WHS Act.

This is the first case where a court has convicted an officer for failing to comply with a Code of Practice.

What does this mean for your organisation?

• The decision confirms that while Codes of Practice are not legally binding, compliance with Codes of Practice will be considered by a court when determining whether an officer took 'reasonably practicable' steps to exercise due diligence.
• Be conscious that the due diligence obligation now appears to be more onerous than originally thought. Officers should proactively question and test what their organisations are doing to monitor and minimise work health and safety risks.
• Ensure that officers in your organisation continue to receive regular training in relation to their obligations under the WHS Act.
• Consider the implementation of a due diligence framework for use by your organisation and in particular your organisation's officers. The framework is an effective method of recording the ways in which officers will practically comply with their due diligence obligations.

Volunteer not a worker

A recent Fair Work Commission decision provides some guidance on when an individual will be a volunteer, which is important because:

• Officers who are volunteers (irrespective of whether they receive out of pocket expenses) cannot be prosecuted for breach of their obligation to exercise due diligence under the harmonised WHS legislation.
• Some volunteers cannot make bullying complaints under the Fair Work Act 2009 (Cth).

In this case, Ms McDonald, a local artist and volunteer treasurer with the Cooktown School of Art Society Inc (CSAS), alleged bullying by a group of persons involved with CSAS over a five year period, culminating with her exclusion from CSAS and its art gallery.

The respondents to Ms McDonald's application raised a number of jurisdictional issues. In dealing with these and dismissing the application, the Fair Work Commission held that:

• Ms McDonald was a volunteer of CSAS (not an employee), despite receiving benefits - being a reduced commission charge on her art sold by the gallery, and a one-off waiver of her annual membership fee. The commission benefits were found to be an incentive to join CSAS or provide assistance rather than to compensate for the particular assistance provided. The Commission said, '…in general terms a volunteer is someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain. The commitments shared between the parties are usually considered to be moral in nature, rather than legal. Payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee. In these circumstances, any payment or benefit can be more aptly described as an honorarium of gift. For example, a worker may receive board and lodgings or reimbursements for expenses and still be considered a volunteer provided that this was the fundamental nature of the relationship.'
• CSAS was not a 'person conducting a business or undertaking' (PCBU) for the purposes of the Work Health and Safety Act 2011 (QLD), in circumstances where CSAS was a group of volunteers working together for a community purpose (including operation of an art gallery and promotion of local artists for the benefit of the local community) and had no employees carrying out work for it.
• As CSAS was not a PCBU, Ms McDonald could not be said to have carried out work for a PCBU and therefore was not a 'worker' for the purposes of the WHS Act.
• As Ms McDonald was not a 'worker', she was ineligible to make an application for a stop bullying order.

What does this mean for your organisation?

A volunteer in a volunteer association may not be a 'worker' for the purposes of harmonised WHS laws. Volunteers will be workers if they carry out work for a PCBU.

It provides some guidance about the types of payments and benefits volunteers can receive without being considered workers (which is important for determining whether volunteer officers can be prosecuted for breach of their due diligence obligation).

Your organisation's WHS systems should ensure that volunteers are treated as other workers.

Personal liability in relation to WHS breaches continues after resignation from position

A decision of the Queensland Industrial Court has confirmed that personal liability for a failure to comply with WHS obligations under the Mining and Quarrying Safety and Health Act 1999 (QLD) (Mining Act) will continue to exist even when the person charged ceases to be 'subject to' the Mining Act.

The Court in this case dismissed an appeal by one of the Site Senior Executive's charged with failure to comply with his personal safety obligations under the Mining Act. He appealed the charges on the basis that he had ceased performing the Site Senior Executive role four months prior to the date of the breach of the Mining Act.

The Court found that 'A failure to comply with an obligation need not coincide with an event which is alleged to have been the result of that failure. A failure to comply may result in an injury at a time when the particular person is no longer bound by the [Mining] Act'.

What does this mean for your organisation?

Individuals with personal safety obligations under safety legislation (including state specific WHS legislation) should be mindful of the fact that liability in relation to any breach will not necessarily end when they leave an organisation or cease in a particular position.

Other interesting WHS developments across Australia

Harmonisation of WA general and resources safety laws In terms of harmonisation of the general WHS laws, the Work Health and Safety Bill 2014 (WA) (which is based on the federal Model Work Health and Safety Act), has been drafted in respect of general industry and was open for public consultation until January 2015. Further modifications were required as a result of the consultation process, and the WHS Bill is yet to be finalised. There is currently no indication about the timing of the Bill being introduced into Parliament.

In terms of harmonisation of the resources WHS laws, in mid 2015, the Department of Mines and Petroleum released a mock up of a harmonised Work Health and Safety (Resources) Bill 2015 (WA) to consolidate the safety provisions of existing mining, petroleum and major hazard facilities legislation into one statute that will supplement the general harmonised WHS Act. The WHS Resources Bill will contain specific clauses to regulate the resources industry and is expected to be introduced into Parliament in early 2016, and commence on 1 January 2017. The WHS Resources Bill will replace the current mines safety legislation - the Mines Safety and Inspection Act 1994 (WA) and the Mines Safety and Inspection Regulations 1995 (WA).

New WHS laws for the NSW mining and petroleum industry

The Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015 (NSW) and the Work Health and Safety (Mines and Petroleum) Amendment (Harmonisation) Regulation 2016 (NSW) took effect on 1 February 2016.

The new laws complete the harmonisation process of WHS laws for New South Wales' resources sector and extend the Work Health and Safety (Mines) Act 2013 (NSW) to the onshore petroleum sector (and will be renamed the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW).

Transitional arrangements are in place for many of the provisions affecting the petroleum sector. It is anticipated that Mine Safety NSW will develop a range of WHS guidelines and forms for the sector.

Incident-prevention strategy released by NSW Mine Safety

NSW Mine Safety has developed a 43-page incident-prevention strategy based on the following three key foundations:

• Risk-based intervention – developing a framework for the ongoing identification and verification of risk profiling, incorporating risk control measure verification, and consideration of deployment practices to target areas of risk priority;
• Human and organisational factors – researching and considering the impact of human and organisational factors on risk management and reporting; and
• Quality data – collecting, analysing and using robust data to support the risk-based intervention strategy, incorporating consideration of human and organisational factors.

Proposed reforms to the National Industrial Chemicals Notification and Assessment Scheme (NICNAS)

The Department of Health released a second consultation paper in February 2016 in relation to proposed reforms to the NICNAS. The reforms are aimed at ensuring that the assessment of the risks associated with the industrial use of chemicals is more proportionate to the risks likely to be posed by industrial chemicals, while also maintaining Australia's robust health, safety and environmental standards.

Safety laws for dangerous goods amended in Western Australia

The Dangerous Good Safety Regulations Amendment Regulations 2016 (WA) took effect on 5 February 2016. The Regulations introduced 58 amendments to the safety laws relating to dangerous goods.

Global changes to WHS Safety Management Systems Standard

In October 2016 the AS/NZS 4801 Occupational Health and Safety Management Systems (AS/NZS 4801) will be replaced by the international ISO 45001 Occupational Health and Safety Management System Standard (ISO Standard).

The ISO Standard will be the new benchmark to assess WHS management systems for organisations. It will be applicable to any organisation regardless of its size, type and nature. While the ISO Standard like the AS/NZS 4801 is not legally binding on organisations, it may be taken into consideration by the courts when determining whether an organisation took steps to minimise WHS risks so far as is reasonably practicable.