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WHAT SHOULD BUSINESSES BE DOING IN 2019?
Businesses (including insurers) should also be aware of the likelihood that the Government will consider introducing offences in 2019 for providing or obtaining insurance in respect of the penalties imposed in work health and safety prosecutions, particularly given that this position has already received in principle support from both sides of politics. Following the imprisonment of both Maria Jackson and Gary Lavin, there should be a renewed emphasis on the part of directors and officers in making sure they comply with their personal due diligence obligations. We recommend that officers and workers are provided with briefings to gain an understanding of the way their health and safety duties are being interpreted by regulators and courts in practice. Organisations will also need to come to grips with further specific legal requirements for proactively dealing with psychosocial risks. Such provisions are likely to be introduced, at least at the WHS Regulation and Code of Practice levels once the Boland Report recommendations are taken up around the country. In that regard, organisations should start familiarising themselves with the “A Work-related psychological health and safety: A systematic approach to meeting your duties” guidance released by Safe Work Australia, and amended in January 2019, as this provides some insight into the type of standards we can expect to see in any such reform.
We can expect WHS regulation to remain the subject of much commentary, both in terms of law reform following the Boland Report and in relation to the approach to enforcement by regulators around the country. In the early months of 2019, there have been a number of tragic fatalities, particularly in the construction industry. The early information available in those cases suggest that cranes, scaffolding, electricity, working at height and young workers will continue to be areas of focus for regulators in their enforcement activities. Organisations need to be aware that the consequences for such workplace fatalities are increasing (for both individuals and companies). This is due to the changes in industrial manslaughter offences, police interest in workplace fatalities and the first instances of individuals serving goal time in Australia for offences under WHS laws. Where traditionally, organisations have had incident notification, response and investigation protocols that treat all serious incidents in a similar way, there is now a need to actively consider specific fatality protocols to deal with the changing regulatory environment when a death occurs at a workplace.
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