OH&S Harmonisation - Superannuation & Funds Management Industry - April 2011

How will the new safety laws affect your business – an industry approach

With the public consultation period drawing to a close, the harmonised safety laws across Australia are one step closer to becoming a reality. With only nine months to go until the new laws commence operation, it is important to assess the impact of the new laws and whether your business is in a position to comply.

Significant changes to the superannuation and funds management industry

One of the changes in the Workplace Health & Safety Act that businesses in the superannuation and funds management industry should pay particular attention to is the expanded duty of care owed by any “person conducting a business or undertaking” (PCBU) to workers whose activities are influenced or directed by the PCBU. This is because trustees in the superannuation and funds management industry may be particularly exposed to a wider interpretation of what constitutes the extent of their “undertaking” and impose on them a duty of care where one did not historically exist. For example, if a trustee of a superannuation fund invests in a company, depending on how that investment is made and the extent of control that can be exercised by the trustee over the company, then there is a potential for a duty of care to be imposed on the trustee which is owed to the workers, and others, in that company.

Further, and of more concern is whether the duty will arise in a context where the board members of the trustee are seen to be acting as shadow directors of the investment companies. In that case, members of the board may be considered to be “officers” of the investment companies and accordingly be exposed to becoming personally liable if they fail to exercise all due diligence in respect of ensuring safety in those companies.

The new Workplace Health & Safety Act will also introduce significant changes to the management of safety in Australia, including:

• Consultation - a broader requirement to consult and co-ordinate on safety with workers, contractors and others affected by the business or undertaking
• Leadership – a new positive duty on “officers” of businesses to ensure safety by exercising ‘due diligence’
• Reputation – an approach to enforcement through greater use of adverse publicity orders
• Intervention at the business – greater avenues for intervention by unions and the regulator at your business
• Shift in attitude – by the regulators and courts in adopting a “uniform” approach to investigation and enforcement

We addressed these issues in more detail in the publication OH&S Harmonisation in November 2010. We also provided a User’s Guide to the practical aspects of the Workplace Health & Safety Act.

New Regulations and Codes of Practice

As trustees in the superannuation and funds management industry invest in businesses in a number of different industries, those in the superannuation and funds management industry will need to be aware of how the harmonised safety laws, particularly the draft Regulations and Codes of Practice, will impact on operations within those industries. We have addressed these issues within industry specific publications for the following industries:

• Agribusiness industry
• Commercial property industry
• Construction and infrastructure industries
• Energy & Resources industry
• Information technology industry
• Manufacturing and distribution industry
• Media and Entertainment industry

For further information about the new safety laws, please feel free to contact our office.