16 BUSINESS TIPS Health and Safety Update: It’s Not All Bad News For Officers IN THE WORK health and safety space there often ‘officers’ (directors, senior executives and the like) can feel uncertain as to the extent of their obligations, in order to avoid a personal conviction. The liability for officers has only increased in recent times, particularly with the pending introduction of an industrial manslaughter offence into the Work Health and Safety Act 2011 (NSW) (WHSA). However, a recent unsuccessful SafeWork NSW prosecution against a managing director (Mr Doble) of a medium sized enterprise has shone light on steps an officer can take to meet their ‘due diligence’ obligations under the WHSA and avoid personal liability. This is particularly important because organisations and individuals cannot take out insurance or be indemnified for penalties under the WHSA. In short, the recent case highlighted the following steps Mr Doble took to meet his due diligence obligations: • Mr Doble engaged a Compliance Manager as a resource to ensure that the organisation carried out its duties under ture for active and public transport access through Kincumber. Again this project is jointly funded by (NSW and the Australian Government). Commenced in the dying days of the previous Liberal Government in February 2023 and halted with the election of the new government, $38.9 million had been allocated to continue the Tumbi Road and Central Coast Highway intersection upgrade. Plans for the much talked about Gosford Bypass a three-kilometre stretch of Manns Road from West Gosford to Narara remain just that with $39.8 million over four years to continue planning and design under the Regional Roads Fund. No mention was made as to when the much heralded new Intercity Trains service would come into service replacing the present out-of-date aging fleet. This project has been a running sore since the previous Liberal Government ordered the replacement trains to be built in South Korea and on arrival in Australia were declared black by the state’s rail union with the new government bowing to their demands to make ‘safety’ modifications. These trains have been in storage since 2019 and the Intercity Train Maintenance Facility at Kangy Angy which will employ over 200 people remains idle. the need for government intervention to stabilize energy supply. Key takeaways from the Breakfast included: • GST Reallocation: The impact of losing billions in GST reallocation to other states. • Development Initiatives: Government acting as guarantor for development loans and pre-purchasing homes in highdensity builds. • Insurance Costs: Pressure on businesses and the need to remove the emergency services levy. • Planning Reform: Accelerating housing, childcare, and infrastructure projects. • Energy Costs: The dual impact on business operating costs and earnings due to discretionary spending drops the WHSA. Importantly, Mr Doble had no reason to believe that the Compliance Manager was incompetent in performing their duties. • The topic of health and safety was listed on the agenda for every management meeting and there was follow up at subsequent management meetings to check that steps had been taken to address any issues. • The Compliance Manager kept Mr Doble informed about matters of work health and safety at those meetings and contacted him from time to time to inform him about safety matters and to receive instructions from Mr Doble about those matters. • Mr Doble visited the various work sites from time to time. If he observed a problem at the work site he would ring the Compliance Manager and get them to fix it straight away. • The Court recognised that “Mr Doble took an active interest in ensuring that work health and safety and compliance were attended to.” • 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 in relation to expending money on health and safety. It is important to note that an officer’s obligations under the WHSA are different to that of the organisation (or PCBU). The officer must exercise due diligence to ensure the PCBU complies with its duties under the WHSA. This involves the officer taking various reasonable steps, which are By Warwick Ryan, Partner, Hicksons Lawyers largely information and process driven, such as keeping up to date knowledge on work health and safety matters, understanding the nature of the operations and the associated hazards and risks and ensuring that the PCBU 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 PCBU. The first questions you might ask yourself as a director or senior manager when considering your obligations under the WHSA as an officer are – How much time, if any, is dedicated to your organisations’ health and safety compliance at Board and management meetings? Is anyone required to report to the Board on health and safety compliance? How competent is that person in their role? What follow up does the Board have in place to make sure health and safety directions are being complied with? What resources are available to meet the PCBU’s obligations regarding WH&S? What budgetary constraints does the organisation have that has or may prevent it from meeting its health and safety obligations? How can these be addressed to ensure satisfaction of these obligations? Hicksons specialist Workplace Relations lawyers have extensive experience in assisting individuals, employers and businesses with managing workplace health and safety issues and proactively identifying issues and solutions. Please contact Hicksons’ Partner, Warwick Ryan, at warwick.ryan@hicksons.com. au should you need any assistance or guidance. Business NSW Central Coast hosts Treasurer for Budget review CONTINUED FROM PAGE 11 CONTINUED FROM PAGE 11 Minns Government gives Coast the flick in State Budget CENTRAL COAST BUSINESS REVIEW JULY 2024
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