Government opens consultation on workplace health and safety laws
Workplace Relations and Safety Minister, Brooke van Velden has invited substantial consultation on workplace health and safety, in line with the coalition Government's commitment to reforming health and safety laws. Over the coming months, Minister van Velden will be travelling across the country to speak with businesses and workers impacted by the current rules and regulations.
In particular, the Government is seeking public views on:
- How decisions about health and safety are made, the reasons behind them, and their costs
- Whether the current health and safety laws strike the correct balance between flexibility and certainty
- How businesses or organisations engage with workers, how workers participate in health and safety, and the impact that this has on health and safety
- The experiences of health and safety regulators and third parties that act on behalf of health and safety regulators, or have other roles within the system
- Whether the health and safety regulatory system is meeting its objectives.
Submissions close at 5.00pm on 31 October 2024. If you are interested in making a submission, we would be happy to assist or there is further information here.
Australian court considers health and safety obligations on directors
A recent Australian case (SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58) has meaningfully considered the scope of a director's due diligence duty, holding that a managing director cannot be expected to know everything, and delegation is an essential element of running a corporation. The case is predicted to be relied upon by the New Zealand courts, notably in the recent prosecution of the former CEO of Ports of Auckland (who is awaiting judgment).
On 14 November 2020, Mr Herden, a truck driver, was working on foot assisting the driver of a 'B-Double trailer' in the loading/unloading area at a transport depot operated by Miller Logistics. Mr Herden was struck by a forklift driven by another worker and suffered serious injuries. Miller Logistics was charged under the relevant New South Wales (NSW) health and safety legislation, as was its sole director, Mr Doble. The NSW District Court found Miller Logistics guilty but found that Mr Doble had not failed to exercise due diligence and had acted in line with his obligations under the legislation.
The Court considered Mr Doble's due diligence obligations as managing director, and concluded that he did not have to do everything that Miller Logistics (as the PCBU) had to do to ensure safety. Rather, he was only required to have processes and resources in place to ensure that the PCBU complied with its duty under the legislation. Notably, the Court observed and held that:
- Mr Doble was the sole director of a medium sized operation, operating in eight locations across NSW. A director in such a position "cannot know everything that is going on at any given moment", and that "[t]o run a corporation there must be a level of delegation"
- Mr Doble had hired an employee, Mr Hayter, specifically for the purposes of dealing with health and safety. There was no suggestion that Mr Hayter was "anything other than conscientious" and there was nothing to suggest that Mr Doble had any reason not to place confidence in Mr Hayter carrying out his work health and safety duties. The engagement of this employee was the primary process or resource that Mr Doble used to ensure that the PCBU carried out its duty
- Mr Doble was not a "hands off" director and showed an "active interest" in health and safety matters, for example:
- Mr Doble put in place a system to identify and manage the risks to safety at the depots. He also visited each depot from time to time and if he observed a problem, then he would have it fixed straight away
- health and safety was listed on the agenda for every management meeting, and any action points were followed up at the next meeting, which constituted verification that the resources and processes provided to the PCBU were being implemented
- if there was a work health and safety matter which required attention, there was no budgetary constraint in fixing a safety problem and there was never any pushback by Mr Doble
- Mr Doble was not obliged to take all reasonably practicable measures which had to be taken by the PCBU, and he was not required to ensure the health and safety of workers.
New good practice guide for officers
The Institute of Directors and WorkSafe have released an updated guide (Health and Safety Governance: A Good Practice Guide) for directors and officers, to assist them in meeting their health and safety obligations. The guide provides navigation through the relevant legislation, with a focus on understanding and managing risk.
You can download a copy of the guide here. If you have any questions related to the guide or this topic, please contact a member of our team.
Proposed amendments to the Health and Safety at Work Act 2015
On 27 June 2024, the Regulatory Systems (Immigration and Workforce) Amendment Bill was introduced to Parliament, proposing several changes to the Health and Safety at Work Act 2015 (HSWA). The Bill proposes to:
- Widen the meaning under section 24 of a "notifiable incident" to also include any unplanned or uncontrolled incident that could expose a person to serious risk to their health or safety
- Provide grounds for a regulator to refuse to accept an enforceable undertaking that does not provide for the reimbursement of the regulator’s costs and expenses incurred in relation to the undertaking and contravention (or alleged contravention)
- Amend section 142 of the HSWA to require a regulator, after receiving a notification from a person who wishes to know if enforcement action has been taken by the regulator, only to make "reasonable efforts to establish" (rather than "establish") whether any decision has been made to take any enforcement action
- Make minor changes to the definition of a 'tourist mining operation'.
The Amendment Bill is currently open for public submissions until 11:59pm, Wednesday 4 September 2024. If you would like to make a submission, please see here.
This article was co-authored by Sherridan Cook (partner), Helen Pryde (special counsel) and Alex Morimoto (solicitor).
