Updated video: KCGM

KCGM v Hanekom involved a fatality on a mine site, and looks at the very interesting question of the extent of a Principal’s obligations when they impose safety obligations on a contractor. There is also the vexing question of what “liability” does a principal take on when they “approve” a contractor’s systems?

The original post is available HERE, and the updated video can be accessed below.

 

Changes to video presentations

As regular readers of my blog would know I have, in the past, used video presentations to explain the concepts about occupational safety and healthcare, and in particular video case studies to look at court cases dealing with occupational safety and health prosecutions.

I am in the process of updating the platform that I use for my paid, online training programs. As a result, I will also be moving the free videos I provide as part of this blog.

Over the next few months, I will be transitioning the videos from this blog onto YouTube and Vimeo, where they will still be available for free.

If you cannot find a video on this blog, please let me know and I will make it available, but if you’re patient, most of the videos will be republished in the next few months.

My first reposted video deals with the case Fry v Keating, which is a Western Australian Supreme Court decision looking at the liability of individual company directors for breaches of occupational safety and health legislation. The original text of the post as well as the video is below.

Directors conviction in relation to workplace fatality upheld

On 23 April 2013 , the Western Australian Supreme Court confirmed the conviction and increased the penalties of two Company directors charged in relation to a workplace fatality.  The charges against the Directors alleged “neglect” under section 55(1) of the Occupational Safety & Health Act 1984 (WA).

You can access a copy of the case at the following link:
Fry v Keating [2013] WASCA 109

or see a short presentation about the case below.

Due diligence program in Sydney

In August 2017, Dr Rob Long and I ran a due diligence program for a client in New Zealand. The program was really well received and we have decided to run a public program in Sydney on 1 & 2 November.

You can access details about the program at the link below, but if you have any questions or would like to discuss whether this program s suitable for you or your organisation, you can email me directly at gws@nexuslawyers.com.au

Due Diligence Workshop Nov 2017

 

Supervisor obligations in Kalgoorlie

This is a shout out to all of my contacts in Kalgoorlie.

I have had a few clients ask me if I could run a public program on supervisor obligations for health and safety in the WA mining industry, in Kalgoorlie. To be able to do this, I need minimum numbers to run the program, so if anybody thinks they might be interested in attending, or sending one or two people, please contact me directly and I will send you some information.

You can contact me by e-mail – gws@nexuslawyers.com.au

Best regards

 

Due Diligence prosecutions under WHS Legislation (and other fairy stories)

Due diligence was supposed to be the health and safety “boogie man“, hiding under the beds of boards and CEOs – keeping them awake at night and focusing their minds on health and safety. The truth is the due diligence provisions in WHS legislation have made no practical change to the legal regulation of health and safety management at an executive level (whatever their theoretical legal effect might be) and continue the long-running lack of interest in health and safety at a boardroom level that Australian regulators have evidenced for years.

I am happy to be corrected on numbers, but as far as I can tell, since introduction of WHS legislation in about January 2012, there have been 819 workplace fatalities according to Safe Work Australia’s figures. I do not know how many of those resulted in prosecutions – it is extraordinarily difficult to draw the disparate data of health and safety regulators together to create a meaningful picture. But what does seem fairly clear, is that there have only been a handful of prosecutions under the due diligence provisions of WHS legislation. Moreover, every one of those has been against a small business and the person prosecuted has some hands-on, day-to-day involvement with the work being performed. There is no example as far as I can tell of a “company officer” who is removed from the day-to-day operations of the business.

Presumably, all of the boards and chief executive officers of large organisations who have suffered workplace fatalities are exercising effective due diligence. I think it is far more likely that the question has not even been asked and this level of executive management has not been subject to any scrutiny whatsoever about their oversight of health and safety management. Again, I stand to be corrected.

None of this should come as a surprise to anybody who has an understanding of health and safety prosecutions in Australia over the years. Nearly every example of “management” prosecutions have been against managers of small businesses with day to day involvement in the operations of the business.

A 2005 paper by Neil Foster found:

In cases involving formally appointed directors, almost every case involved a director who was heavily involved in decisions or actions “on the ground” which led directly to the incident concern (page 114).

and

Almost all the companies concerned (as far as can be judged from the reports examined) were either effectively “one-person” companies or at least small family companies with limited assets. … The directors concerned were almost all likely to have high personal knowledge of workplace procedures and, as noted above, many were heavily involved in the particular incident concern. There are no examples in these cases of a large company where a member of the board was held liable for failure to exercise “due diligence” in addressing the issue of safety (page 116).

(Personal Liability of Company Officers for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), (2005) 18 Australian Journal of Labour Law, 106)

Nothing, it seems has changed.

Supervisor obligations for safety and health in the WA mining industry

I recently posted up information about my new program, Supervisor obligations for safety and health in the Western Australian Mining Industry.

If you are interested in having a look at the program, you can access one of the chapters for free below:

Chapter 5: The importance of supervision

supervisor training ispring

If you would like to review the whole program, or talk about delivering the program in your organisation, please send me an email – gws@nexuslawyers.com.au