Five years have passed since the landmark introduction of the model Work Health and Safety legislation.
Although the model legislation is yet to be adopted by Victoria and Western Australia, the experience in the seven jurisdictions that have adopted the reforms is now sufficient to enable us to assess and develop some of the ideas and approaches explored in the first edition of our Due Diligence book series.
Work health and safety laws impose a proactive duty on officers to exercise due diligence to ensure compliance with those laws. Due diligence is a duty imposed on officers personally. It is separate from the duty imposed on their company.
The duty is also proactive – it can be breached merely for failing to put in place a corporate governance regime, even though there may not have been a WHS incident at the officer’s company.
Due Diligence: Duty of Officers is an officer’s answer to any of their duty questions.
How you manage an incident, counts.
An incident presents a minefield of risks. It is during this challenging time that a group of people is tasked with managing in the midst of chaos and trying to find answers for those affected.
Individuals and companies looking to anticipate an incident should implement an effective incident management strategy that shapes the corporate response, through policies, procedures, training and resources. This requires a holistic approach that interweaves in the discussion:
- commercial, and
- reputational issues.
Due Diligence: Incident Notification, Management and Investigation explores the techniques associated with crisis management in the WHS context, providing a practical blueprint.
Worker and Stakeholder Engagement
The duties to consult under the OHS legislation require workers and overlapping duty holders to consult, co-operate and co-ordinate with each other.
- contractors, subcontractors and their employees
- labour hire workers
- apprentices and trainees, students on work experience, volunteers, and
Overlapping duty holders refer to parties who engage with the business, including suppliers, controllers of premises, adjoining businesses and service providers.
These obligations present practical challenges and opportunities, which are explored in Due Diligence: Horizontal and Vertical Consultation.
Worker Rights and Duties
It has long been held that employers are liable for the negligent, reckless and disobedient employee. However, what is the liability of the workers themselves for that conduct?
Workers have a key role in work health and safety. They and their colleagues bear the consequences when things go wrong, and even the most sophisticated system relies heavily on worker engagement to deliver safety outcomes.
The second edition of Due Diligence: Worker Rights and Duties is concerned with the role, rights and duties of workers. It develops some of these ideas with the benefit of five years’ experience in implementing them in various businesses.
Dealing with Regulators
Managers need a strategic approach to engaging with work, health and safety regulators.
Dealing with regulators is all too often the first interaction many managers have with work health and safety laws. Without the benefit of understanding the scope of their obligations and the extensive powers of WHS regulators, it is easy for managers to get themselves and their companies into trouble.
Due Diligence: Dealing with Regulators is a practical guide to the minefield of regulatory powers available to WHS regulators. It is intended for managers who find themselves having to deal with a regulatory investigation.
Persons Conducting Business or Undertaking
The Person(s) Conducting a Business or Undertaking (PCBU) is at the centre of the legislative regime imposed by the work health and safety laws. The scope of the duty of care for the PCBU is broad, with the extent of the duty expanding as prosecutions are brought and cases are decided.
This second edition of Due Diligence: Persons Conducting a Business or Undertaking, explains what those duties now are, five years and many cases and prosecutions since the commencement of the model work health and safety legislation.
The first book of the Due Diligence series looked at the duty of officers. The fourth book looked at the duty of workers. This book is concerned with the duty of a person conducting a business or undertaking (PCBU), tying together the obligations set out in the second, third and fifth books on incident notification, consultation and dealing with regulators respectively.
The series is authored by leading OHS lawyer Michael Tooma. Like its predecessor, the second edition maintains a plain English, practical approach, with an emphasis on the practical rather than the theoretical. It includes simple diagrammatic illustrations of the complex concepts of the legislation and case principles.