lawyers – Page 32 – SafetyAtWorkBlog

D/O liability insurance gets to England’s High Court

Insurance policies for directors and officers (D&O) liabilities have yet to gain much application in terms of occupational health and safety penalties. But D&O insurance policies are in Australia and are established in other countries.

According to Wikipedia:

“Directors and Officers Liability Insurance (often called D&O) is liability insurance payable to the directors and officers of a company, or to the organization(s) itself, to cover damages or defense costs in the event they suffer such losses as a result of a lawsuit for alleged wrongful acts while acting in their capacity as directors and officers for the organization.”

A decision by the High Court in England throws further light on the application of D&O. Continue reading “D/O liability insurance gets to England’s High Court”

Do “enforceable undertakings” equal justice?

The issue of “enforceable undertakings” for breaches of OHS law receives an interesting interpretation in the Courier-Mail newspaper on 18 January 2010. “Enforceable undertakings” are unfairly described as “plea bargains” but the article does provide some comparisons to support the argument.

The first example provided where a worker was left a paraplegic sounds like a plea bargain in that there was a negotiated “agreement to avoid being brought the courts” but more information is required.

The second, concerning the injury to patrons at the Sea World theme park, is treated too briefly and is likely to involve issues of public liability. However the dollar comparison in this example may raise the need to ensure that any enforceable undertakings should be comparable in dollar value to the initial fine. Continue reading “Do “enforceable undertakings” equal justice?”

Health Department bans all employees from smoking at work

Most of the Australian media have reported on a memo to staff of the Australian Department of Health that only allows smoking while on meal breaks. Health Department employees are not permitted to smoke while undertaking departmental duties or “when representing the department in any capacity”.

Government authorities have long participated in smoking reduction campaigns which have succeeded in minimising smoking. Workplaces in Australia already have workplace smoking bans. So what’s caused the memo (a copy which has not been seen by SafetyAtWorkBlog) to be issued?

The principal reason seems to be to improve the “professional reputation of the department”. It has always been a ridiculous image to see Health Department employees crowding around departmental doorways smoking cigarettes. Continue reading “Health Department bans all employees from smoking at work”

Legal professional privilege and safety management

The Safety Institute‘s OHS Professional magazine for December 2009 included an article (originally published in an OHS newsletter from Piper Alderman for those non-SIA members) about the application of legal professional privilege using a New South Wales Industrial Relations Commission decision as its basis (Nicholson v Waco KwikForm Limited). The case received considerable attention by OHS law firms. Continue reading “Legal professional privilege and safety management”

Quad bike safety sensitivities

The quad bike safety issue is hotting up on a range of fronts in Australia with the trade unions taking an active interest, meetings between bike manufacturers and safety designers, and the SafetyAtWorkBlog email box filling up with background content and opinion.

One of these emails reminded me of some court action that was taken in 2005 by Honda against the Victorian State Coroner, Graeme Johnstone. Johnstone only recently retired from the position after many years and over that time there were fewer more ardent safety advocates, particularly not any that had the same broad audience and media attention.

In 2005 Johnstone was conducting an inquest into several quad-bike related deaths. At one point he approached a witness outside of the Coronial process to seek their assistance in a training course. Representatives from Honda took exception to this and began court action in the Supreme Court of Victoria to have him dismissed from conducting the inquests.

Justice Tim Smith found Johnstone remained open-minded and impartial throughout the inquest but the unreported judgement available online illustrates some of the tensions of the time and continue to exist to this day.

The judgement mentions the purpose of the inquest:

“The major disputed issues in the inquest relevant to the present application were the following:

whether the lack of roll-over structures on their ATVs caused the death of Mr Crole and Dr Shephard

whether roll-over structures should be installed on ATVs

whether the question of the provision of roll-over structures for ATVs should be investigated further.”

In describing the context of Johnstone’s contact with the witness, Dr Raphael Grzebieta, the judgement hints at the Coroner’s inquest findings (which are not available online)

“In addition, notwithstanding Dr Grzebieta’s conclusion that Dr Shepherd and Mr Crole [the deceased] would have been saved by the fitting of the roll bars and that this would be sufficient to justify a recommendation that they be fitted, the coroner expressed a provisional view that:

“My view at the moment is that it does not give me enough to recommend roll-over protection.””

The Victorian Coroner continues to be active in investigating quad-bike related deaths as seen in this newspaper article from earlier in 2009. A related article quotes John Merritt, WorkSafe’s executive director as saying:

“This inquest came about as a result of a terrible spate of fatalities in the past two years… WorkSafe’s position on this is clear. It believes that a quad bike is like any piece of farming equipment and those who use them need the appropriate training to be able to use them safely.”

If a quad bike is like any other piece of farming equipment, the equipment designers would be reviewing their designs to minimise the risk of injury as the field bin and silo manufacturers have, or the milk vat designers have or the windmill manufacturers have or, indeed , as have the tractor manufacturers who actively promote the safety features of their new tractors.

The unreported Supreme Court judgement provides a good indication of the major players in the quad bike safety discussion, particularly the expert witnesses for and against.

Many of the issues are resurfacing because safety and work practices continue to change and the only satisfactory resolution is when hazards are controlled and harm is reduced and, hopefully, eliminated. 2010 in Australia looks set to be a year when quad bike safety gets a good going over once more.

Kevin Jones

Barry Sherriff talks about the Work Health and Safety Act

Boardroom Radio often has interesting speakers on topical issues. On 11 December 2009, they interviewed Barry Sherriff who recently joined the Australian law firm, Deacons. The interview is of general interest and reflects many of the issues raised by Australian labour lawyers elsewhere.

Barry is an OHS law expert and was a member of the panel that reviewed Australia’s OHS legislation in 2008/09 in order to steer the development of a model OHS law. That process was completed in mid-2009 and the Government took on most of the recommendations. Effectively the Government started a second separate process – the development of legislation based on a range of information, advice and public submissions.

Many recent submissions to the Government in this second phase harked back to earlier findings. Many issues raised in the Model OHS Act Review, such as the issue of “suitably qualified” OHS advisers, are dead. As Barry’s interview shows, contemporary thinking provides forward momentum and it is up to all of us to keep our state of OHS knowledge current.

Kevin Jones

Legal advice and safety management

The legal commentaries have begun to appear following the release of Australia’s draft Work Health & Safety Act.

One of the first, as usual, is a response from law firm Deacons. It should be noted before discussing the suggestions that in the last couple of months Australia’s OHS legal brains are now concentrated in this law firm since Barry Sherriff jumped ship from Freehills. A month or two earlier, Sherriff’s protegé, Penny Stephens, left the firm and took several others with her to Hall & Willcox. This brain drain sets Freehills’ OHS practice back considerably.

However, Deacon’s first missive on the new OHS laws has been released, under the bylines of Sherriff & Tooma, and identifies several issues. The first, and very useful to know, is the definition of due diligence that is now included in the Act under Duty of Officers:

“…due diligence means to take reasonable steps:

(a) to acquire and keep up to date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risks associated with those operations; and

(c) to ensure that the body has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised; and

(d) to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the body has, and implements, processes for complying with any duty or obligation of the body under this Act; and

Examples

A body’s duties or obligations under this Act may include:

reporting notifiable incidents.

consulting with workers.

ensuring compliance with notices issued under this Act.

ensuring the provision of training and instruction to workers about work health and safety.

ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).”

This should provide more tips to OHS professional associations about where their services fit in general business obligations but it also sets the bar much higher for professionals in how they must upgrade their own OHS skills to match expectations.

Curiously, Deacons continues with issues of concern with the Act which have little to do with improving worker safety. Several items hark back to the OHS Model Act Review Panel which has little more than historical interest nowadays but may reflect the fact that Barry Sherriff was a Review Panel member. The list of concerns further supports SafetyAtWorkBlog’s position that safety law often masquerades as safety management.

Deacons concludes its update with the following “7 steps”:

“There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:

Legal risk analysis…

Review contracts …

Implement interface coordination plans …

Develop robust consultation processes …

Develop dispute resolution processes …

Develop processes on right of entry and regulatory rights and obligations …

Develop an OHS Corporate Governance Statement …”

Unsurprisingly, the first two involve assistance from one’s legal advisers. SafetyAtWorkBlog recommends that businesses wait and see what support documentation is supplied by the OHS regulators first as it is they who determine the parameters for OHS compliance.

Businesses need to remember that the Work Health & Safety Act is not yet law and, in fact, has a long way to go before States introduces this law into their own jurisdictions. Western Australia is still objecting to the law so it is unclear if this Act will ever be introduced without substantial change. So until then keep following the local OHS legislation but keep both ears open in anticipation of the future.

Category: lawyers

D/O liability insurance gets to England’s High Court

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Do “enforceable undertakings” equal justice?

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Health Department bans all employees from smoking at work

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Legal professional privilege and safety management

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Quad bike safety sensitivities

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Barry Sherriff talks about the Work Health and Safety Act

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Legal advice and safety management

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