WHS reform in WA “delayed” again

The latest minutes from the Western Australian Ministerial Advisory Panel on Safety Legislation Reform have confirmed what probably comes as no surprise to anyone anymore – that the proposed Work Health and Safety (Resources) Bill has been delayed yet again, this time by about 6 months.

The minutes of the meeting record:

Work Health and Safety (Resources) Bill

Parliamentary Counsel’s Office (PCO) commenced drafting the Bill during February 2016 and is continuing to liaise with DMP during the drafting process. 

However, due to delays in this drafting process, the Department has obtained approval from the Minister to postpone implementation of the legislation to 1 July 2017. An updated timeline has been provided to MAP members as Attachment 3.

It is expected that the Bill will be ready for introduction to Parliament in August 2016.

Given that a State election is pencilled in for March 2017, I would not be rushing to adjust my safety management processes on the basis of legislative changes anytime soon.

New guidance material for lifting and related operations


Effective from 7 December 2015, Safe Work Australia has published 10 guides and information sheets on managing the risks associated with inspecting, maintaining and operating cranes, and plant that can be used as a crane and quick hitches for earthmoving machinery. This move is part of an agreement by SWA members in 2014 to replace the draft model WHS Code of Practice for cranes with guidance material.

You can access the SWA “cranes guidance material” page HERE.

This approach does create some interesting jurisdictional issues. For example, New South Wales which operates under the WHS legislation has an approved code of practice for managing the risks of falls at a workplace – which means it has a specific legislative standing, different from guidance material. This code of practice includes a section on “work boxes“, but it has different information from the material set out in the SWA guide on “crane lifted work boxes“.

For example, the SWA guide states that work boxes should:

  • have sides not less than 1 metre high;
  • have fall-arrest anchorage points;
  • be correctly tagged;
  • have lifting slings supplied to be attached to the lifting points by hammerlocks or moused shackles;
  • have a safety factor for each suspension sling of at least eight for chains and 10 for wire rope; and
  • where provided, a door is to be inward opening only and self-closing with a latch to prevent unintentional opening.

However, none of these points are mentioned in the approved code of practice.

A common failing of safety management systems is the level of internal inconsistency that develops as layers of safety management processor built up over time. It seems that the regulator is not immune from this problem.


Western Australia’s proposed WHS legislation

On 23 October 2014 the Western Australian State Government released a draft or “Green” Bill, the Work Health and Safety Bill 2014 (see: https://www.commerce.wa.gov.au/worksafe/work-health-and-safety-bill-2014)

The Work Health and Safety Bill 2014 is Western Australia’s version of harmonised health and safety legislation. The Bill is open for public comment until 30 January 2015, and details on how to submit a comment can be found at https://www.commerce.wa.gov.au/worksafe/work-health-and-safety-bill-2014

You can access a copy of the Bill from the websites above, however, we have also added a copy to Lawstream (www.lawstream.com.au) and access to the Lawstream database it is available for access at no charge. Simply log on at:


Username:           Trial User

Password:            LStrial123

When you click on the “login” button you will see two options, “client” and “trial“. Click on “client” to access your account.

Over the next few weeks we will be adding commentary about sections of the proposed Bill in the “mapping” section of the Lawstream database; simple follow the blog for more information about when updates and commentary are added.

Don’t mention the “H” word: We are “modern” now

There have been some interesting mutterings coming from safety regulators and their political masters during the long funeral march of harmonisation in Western Australia over the past few years. However, it seems now that the “H” word is out, and “modernisation” is in.

At least that was the language being used recently at the SIA Safety in Action conference in Perth.

I for one will be glad when the corpse of harmonisation is finally laid to rest. Perhaps then we can focus on legislative changes that will actually drive good safety initiatives, rather than continue to tinker at the edges of administrative efficiency.

Whether “modernisation” in Western Australia means anything more than doing exactly what we have done for the last 20 years, but using different words to describe it, only time will tell.  And if the history of legislative change around safety and health in WA is any guide, I would not be holding my breath waiting for meaningful change.

Contractor safety management series Part 2: Stratton V Van Driel Limited

Stratton v Van Driel Limited is the second case in our contractor safety management series.

It is a somewhat older decision, having been handed down in 1998, but useful in that it looks at a narrow issue that is very important in the context of contractor safety management: Control.

In 1995 Mr Baum, a roof plumber was seriously injured when he fell down a ladder. Mr Baum was employed by Signal & Hobbs, who in turn had been engaged by Van Driel Limited, to do work on the new Dandenong Club in Dandenong, Victoria.

The essence of the charges against Van Driel was that it had not done everything Reasonably Practicable to provide a safe system of work, in that it had not managed the risks associated with working on the roof.

Van Driel defended the charges on the basis that they did not have relevant control over the way an independent contractor did their work.

You can access the video presentation of the case here.

Fatalities, Insurance and failed paper systems: Hillman v Ferro Con (SA) [2013] SAIRC 22

On 16 July 2010 a fatality occurred during lifting operations at the Adelaide desalination water plant. A rigger employed by Ferro Con (SA) Pty Ltd was killed when he was struck on the head by a 1.8 tonne steel beam.

The Company, Ferro Con, and its Director, Paolo Maione were prosecuted under South Australian health and safety legislation, and in June 2013 were handed fines of over $200,000.

The case has attracted some attention because Mr Maione was able to call on an insurance policy to pay his penalty – effectively avoiding the punishment of the Court. It has long been thought, in my view correctly, that insurance to pay for effectively criminal penalties is counter to public policy and unlawful and it will be interesting to see if there is any “public policy” response to the decision.

Over and above the insurance aspects of the case, the judgement offers some good insights into the weaknesses of “paper based” safety management systems, a compliance mentality and lack of assurance. The judgement also explores some issues in the Principal/Contractor relationship.

You can see a video presentation about the case here.

Also, set out below are links to various references and materials referred to in the discussion if you would like to explore some of the concepts further.

Links to material referred to in the presentation.

Video presentation – case review: Capon v BHP Billiton Iron Ore Charge No. 1917/11

Video presentation – case review: Fry v Keating [2013] WASCA 109

Court judgement: Silent Vector v Shepherd & Anor [2003] WASCA 315

Court judgement: Hillman v Ferro Con (SA) Pty Ltd (in Liquidation) & Anor [2013] SAIRC 22

Article: Borys, D. (2009). Exploring risk-awareness as a cultural approach to safety: Exposing the gap between work as imagined and work as actually performed. Safety Science Monitor, 13(2), Article 3.

Are health and safety managers “company officers” and should they be?

This post has been prompted by recent activity on various blogs and safety discussion boards about whether a health and safety manager could be a Company Officer for the purposes of recently adopted health and safety legislation.

For those of you who follow this blog outside of Australia, part of this post is particular to recent legislative developments is Australia, although part of the discussion also looks at the broader accountabilities of health and safety managers.

Since about 2008, Australia has been engaged in a discussion about a legislative change agenda commonly referred to as “harmonisation”. The object of harmonisation was to achieve nationally consistent health and safety legislation across all jurisdictions in Australia. Although due to commence in 2013, and despite “harmonised” laws having been implemented in a number of jurisdictions, to date, the objectives of harmonisation have not been achieved.

You can read more about harmonisation here.

One of the key elements of harmonisation is a positive obligation of “due diligence” imposed on “company officers”.

Previously, under Australian law Company Officers could be held personally liable for breaches of safety legislation where offences occurred due to the company officers consent, connivance or neglect. A recent example of this type of case was the Western Australian decision, Fry v Keating, and you can see a presentation of this type of case here.

The due diligence obligations mean that relevant individuals must demonstrate positive actions to be satisfied that health and safety risks are being effectively controlled. So for example, the “model bill” used to frame harmonised legislation provides that due diligence includes taking reasonable steps:

  • to acquire and keep up-to-date knowledge of work health and safety matters; and
  • to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and
  • to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
  • to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
  • to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
  • to verify the provision and use of the resources and processes referred to above.

Given that harmonisation is about legislation aimed specifically at managing health and safety risks, it does suggest two important questions: Could health and safety managers by company officers for the purposes of the due diligence obligations, and should they be?

In my view, the answers are “probably not”, and “yes”.

Although health and safety managers, are often “senior managers”, they are not by default company officers. The term “officer” of a corporation is defined by s 9 of the Corporations Act 2001, and relevantly for this post includes a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation.

A relatively recent case looking at the issue of who may be a company officer was Shafron v Australian Securities and Investments Commission [2012] HCA 18, which you can access here. The case was one of a series of cases that concerned the prosecution of a number of company officers and executive managers of James Hardie arising out of disclosures by the company over its ability to fund potential asbestoses liabilities.

Mr Shafron was both Company Secretary and the General Legal Counsel, and the relevant arguments turned on whether Mr Shafron could be a company officer in his capacity as General Legal Counsel.

Part of the argument run by Mr Shafron was that he could split the two roles, Company Secretary and General Counsel; so that when he was acting in his capacity as a Company Secretary, he was a Company Officer, but that in his capacity as General Counsel.

That majority of the High Court “greatly doubted” that the capacities could be spilt in that way, but usefully for this discussion went on to discuss whether Mr Shafron was a Company Officer when acting in his capacity as General Counsel.

In forming the view that Mr Shafron was a person, who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation  the High Court made a number of observations.

First, that Mr Shafron was a senior officer, the second or third most senior executive in the company.

Second, Mr Shafron was one of a small group of three people who were “responsible for formulating” the relevant proposals.

Third, Mr Shafron’s “participation” went beyond merely providing advice – he played a large and active part (along with two others) in putting together the proposal that they chose should be put to the Board and adopted.

What is clear from the decision is that in some circumstances, whether a person is a Company Officer is situational – it is not fixed. So a person in making (or participating in making) some decisions may be regarded as a Company Officer, but in other cases may not.

On the face of the reasoning of the High Court, it is difficult to envisage too many circumstances where a health and safety manager would be likely to be found to be a Company Officer.

In my experience, health and safety managers are not typically amongst the senior echelon of executive managers, nor do they put proposals directly to the Board. To the extent that health and safety management proposals are put before a Board, they often come via a CEO or “sustainability” manager who put their own imprimatur on the proposal.

So to answer the first question, could health and safety managers be company officers for the purposes of the due diligence obligations? In my view – I cannot rule it out, but probably not,

As interesting (or otherwise) as this discussion might be, the more fundamental question is whether health and safety managers should be regarded as company officers – or at least have equivalent obligations of due diligence under safety legislation.

By way of comparison, there was and continues to be ongoing debate about how the mining industry is some parts of Australia will implement the principals of harmonisation.  At one point, a draft set of what were referred to, as “non-core” mining regulations were prepared, and without going into the rationale behind, and operation of the non-core regulations they did propose:

  1. The appointment of a senior person on a mine site who would be responsible for safety under the regulations – the Site Safety executive or SSE; and
  2. That the SSE would be “deemed” a company officer for the purposes of the health and safety regulations.

In doing this, the regulations were clear that the positive obligations of due diligence would apply to that position.

There seems to me to be no reason in principle why a similar approach could not be adopted in relation to health and safety managers. And if you look at the due diligence obligations as set out above, there is no reason that I can think of why you would not expect a health and safety manager to be across all of those requirements.

So, even is a health and safety manager may not be a company officer, there is no reason why they should not have the positive obligations of due diligence. After all, where would we expect the company officers to get the information top discharge their obligations if not from the health and safety manager?