SAFETY MANAGEMENT IN CONTINGENT WORKFORCE
SERVICES
WELCOME TO THE COMMUNE
CHARLES CAMERONFCB GROUP
AUGUST 2013
© This information is the property of ATC Events and may not be reproduced or used without attribution
WHO IS A WORKER UNDER WORK SAFETY LAW?
PERSON CONDUCTING A BUSINESS OR UNDERTAKING
PCBU DUTIES
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
a) workers engaged, or caused to be engaged by the person; andb) workers whose activities in carrying out work are influenced or
directed by the person, while the workers are at work in the business or undertaking
JOINT OBLIGATIONS
The Model WHS law confirms that more than one person can have a duty and provides that:
1) More than one person can concurrently have the same duty2) Each duty holder must comply with that duty to the standard
required by the Act even if another duty holder has the same duty
3) If more than one person has a duty for the same matter, each person:
a. retains responsibility for the person's duty in relation to the matter; and
b. must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity
THE BRADY BUNCH OBLIGATION
Where PCBU’s hold concurrent duties under the WHS Act with another PCBU, they must consult, cooperate and
coordinate with each other and their workers, so far as is reasonably practicable, which is a four part test.
Reasonably PracticableA. the likelihood of the hazard or risk occurring B. the degree of harm from the hazard or riskC. knowledge about ways of eliminating or minimising the hazard or
riskD. the availability and suitability of ways to eliminate or minimise
the risk
IF GREG AND CINDY CAN DO IT…..
KEY MESSAGES
1. More than one person or party can be responsible
2. Lack of effective control will not provide a clear defence
3. All parties must work with one another to manage safety
4. Clients should coordinate multiple suppliers of contingent labour to ensure due diligence is met
WHO IS DEEMED AN OFFICER?
WHO ARE YOUR OFFICERS?
OFFICER LIABILITY
Section 27 states that “If a PCBU has a duty or obligation under the Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation.”
“An officer of a PCBU may be convicted or found guilty of an offence under this Act relating to a duty under section 27 whether or not the PCBU has been convicted or found guilty of an offence under the Act relating to the duty or obligation.”
Source: Work Health and Safety Act 2011 No 10 (NSW)
DETERMINING WHETHER AN OFFICER IS GUILTY OF AN OFFENCE
Did the Officer meet their due diligence obligations?
DUE DILIGENCE has now been defined...
WHAT DOES DUE DILIGENCE LOOK LIKE?
The Officer needs to demonstrate that they have established a process to:1. ACQUIRE KNOWLEDGE & KEEP UP-TO-DATE KNOWLEDGE OF WHS
MATTERS2. GAIN AND UNDERSTANDING OF THE PCBU OPERATIONS AND RISKS3. ALLOCATE APPROPRIATE RESOURCES AND PROCESSES TO MANAGE WHS4. ENSURE THE PCBU MANAGES HAZARDS AND INCIDENTS IN A TIMELY
MANNER5. ENSURE THE PCBU COMPLIES WITH ITS DUTIES UNDER THE WHS
LEGISLATION6. VERIFY THE PROVISION AND USE OF THE RESOURCES AND PROCESSES
REFERRED TO IN PART 3 – 5.
EXAMPLES OF DUE DILIGENCE
Comply with licensing & registration obligations
Comply with licensing & registration obligations
Advice from as suitably qualified person
Advice from as suitably qualified person
Ensuring steps are taken to
manage risk
Ensuring steps are taken to
manage risk
Cooperate &
Coordinate with other
PCBU
Cooperate &
Coordinate with other
PCBU
Reporting of incidents & emerging hazards
Reporting of incidents & emerging hazards
Making decisions
about procedures &
resources
Making decisions
about procedures &
resources
Inspection & auditing
processes
Inspection & auditing
processes
PENALTIES
Category 1 = $600,000 and/or 5 years jailCategory 2 = $300,000Category 3 = $100,000
VOLUNTEER OFFICERS
Volunteer officers will have the duty but cannot be liable for a breach…
A volunteer is a person who is not working for reward, although they may receive reimbursement of expenses incurred by them. A volunteer may be an officer of a PCBU. For example, a person may be a voluntary member of a committee of a not-for-profit association that is conducting an undertaking.
A volunteer officer will be expected to comply with the officers’ duty and the regulator can compel compliance with that duty by issuing an improvement notice.
THE KEY TO BEING PROACTIVE
Officers must use the level of sound judgement, prudent decision-making and taking of action that
any reasonable person would, to prevent and reduce hazards and risks to health and safety.
PRACTICAL STEPS
PATH TO COMPLIANCE
CHARLES CAMERON
Presented July 2013
Presented by
0414 734 329
© This information is the property of ATC Events and may not be reproduced or used without attribution
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