The Skippers Duty of Care

Transcription

1 The Skippers Duty of Care Notes from the Safety presentation to WMYC / WMSC Safety Information Day 2 nd July Introduction In anticipation of competing in the Brisbane to Gladstone Yacht race (Easter 2016) I attended an AYF accredited sea safety and survival course conducted by Maritime Training Qld. Mr. Gerry Fitzgerald conducted the course and has kindly given permission for me to reproduce some of his teaching materials. At that course I became newly aware that as a skipper (and as a crew member) I was directly affected by, and subject to, Workplace Health and Safety legislation. This opened the Pandora s box Duty of Care. Disclaimer I am providing this presentation as an ordinary club member who is interested in safety. I am NOT a member of either the WMYC or WMSC management committees. I have no recognized OH and S or Risk Management Assessment qualifications. Aim of this presentation My main aim is to improve your awareness about your duty of care as a sailor, and to encourage you to start your own risk management process. How you do that is up to you. Legislation Operating a vessel The Transport Operations (Marine Safety) Act 1994 (criminal penalties may apply) This act governs operational safety of vessels. I am not touching on this today and the current relevant website is listed in the resources at the end of these notes. It is self evident that compliance with this act is essential to fulfill a duty of care to others aboard your vessel and affected by its operation. Health and Safety legislation (criminal penalties may apply) Work Health and Safety Act 2011 (WH&S Act) - Current as at October 2015 Safety in Recreational Water Activities Act 2011 Civil Liability Civil Liability Act Current as at October 2015

2 The object of The WH&S Act The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces... The Act states that A Person Conducting a Business or Undertaking (PCBU) has a primary duty of care to ensure, as far as is reasonably practicable, the health and safety of workers at work in the business or undertaking, and other persons who may be affected by this activity. (Such as a guest passenger on your vessel) WH&S legislation applies broadly to individuals and most entities (including incorporated sports clubs) when they are: A Person Conducting a Business or Undertaking... whether or not the business or undertaking is conducted for profit or gain. The WH&S has a broad meaning of worker and includes unpaid volunteers. The WH&S act defines a workplace broadly and specifically includes: a vehicle, vessel, aircraft or other mobile structure; and any waters and any installation on land, on the bed of any waters or floating on any waters. As skipper of your boat you are, conducting an undertaking, your vessel is a workplace, and you have legislated duty of care to anyone on or near your vessel that may be affected by its operation. You are required to do what is reasonably practicable. (more on this later) Relationship between the WH&S Act and the older Safety in Recreational Water Activities Act The WH&S legislation adds to and overrides the preexisting act except for clause 16 of Safety in Recreational Water Activities Act Clause 16 is more proscriptive than the equivalent clarifications of duty of care provided in the WH&S Act. In other words for a given question about implementing your duty of care which ever is the tougher Act applies. Safety in Recreational Water Activities Act Section 16: 16 Primary duty of care (1) A person conducting a business or undertaking that provides recreational water activities must ensure, so far as is reasonably practicable, that the health and safety

3 of persons or whom the activities are provided are not put at risk by the provision of the recreational water activity. (2) Without limiting subsection (1), a person conducting a business or undertaking that provides recreational water activities must ensure, so far as is reasonably practicable (a) the provision and maintenance of safe plant and structures; and (b) the safe use, handling and storage of plant, structures and substances; and (c) the provision of any information, training, instruction or supervision that is necessary to protect persons for whom the activities are provided from risks to their health and safety arising from the provision of the activities; and (d) that persons and conditions at a place where recreational water activities are provided are monitored for the purpose of preventing illness or injury of persons for whom the activities are provided. From the two acts I have arrived at a simplified duty of care list Duty of Care list: 1) Do what is reasonably practicable to assure safety a) Provide and maintain safe plant and equipment. b) Safe use and handling of equipment. c) Provision of info and training to workers, volunteers and others. 2) Monitor the application and affect of your risk management 3) Document your Safety activities

4 Do what is reasonably practicable to assure safety Doing what is reasonably practicable is mainly made up of common sense and good seamanship. It requires weighing up several elements of each risk including: Likelihood of the hazard or risk occurring Degree of harm that might result from the hazard/risk What you know, or ought reasonably to know about the hazard or risk The ways of eliminating or minimizing the risk The ways of minimizing the impact if the risk occurs The availability and suitability of ways to eliminate or minimise the risk The cost associated. The WH&S Act also requires other persons on your vessel to comply with your reasonable instructions. The act also places responsibility on others for their own safety within the limits of their capacity. The High Court has determined that simply by participating in a sport a person has acknowledged some risk and personal responsibility. Doing what is reasonably practicable: While this sounds, and is, potentially endless it really means you are expected to: Identify foreseeable risks and hazards (Can it happen) Identify likelihood of the risk. (How likely is it to happen) Identify the contexts that increase the danger. (Circumstance when it goes bad) Identity significant outcomes. (What happens if it occurs) Rate the combined risk and impact ( See example below or use attached risk impact matrix) Plan precautions. (How to stop it happening) Plan management. What is the best way to minimize harm should it happens) To do these things the Act states either you apply specialist endorsed best practice (which does not exist for recreational boating) or you are apply Australian Standard Risk Management tools. (The risk impact matrix is very helpful) YA has made available their suggested version of the Australian Standard Risk Management with guidelines for clubs. This is the most relevant material I can find. Some of the material is attached and the full materials are available online. (resources list below) The tools also address several of the first 6 points on the duty of care list. YA does not provide any equivalent assistance to vessel owners.

5 It Boat sinks How Likely Very low More likely when Cyclonic weather Impact Death Risk Impact rating High Prevention Avoid cyclones Maintain boat Management Abandon ship drills Pre departure safety briefing Gas into bilge Low Crew ignorant Death High Turn of Gas signs Train crew Abandon ship drills Fire fighting drill Weighing anchor Medium Wind across tide Minor to serious injury Medium Train Crew First aid drill Engine failure Low Poor maintenance Minor* Low Engine and fuel maintenance Telecommunications Foot injury on side decks High Crew new to boat Many sharp obstructions Medium High Good built design Compulsory footwear Crew training First aid drills * Again contextual if you venture out in poor weather an engine failure can have dire consequences

6 Civil liability law Civil Liability act outlines duty of care as relates to civil suits. It has the lowest level of proscription but is voiced on similar lines. It is less onerous and has a greater emphasis on the requirement that the participant have responsibility for joining in. If you have addressed the seven point duty of care list above you will have done more than enough. Duty of Care Sporting Clubs Your club is regulated by the same legislation. In terms of compliance (specifically for on water activities) our club has in place: A safety system An event management protocol A set of documented race courses A master NOR and SI used as template for each event. And it conducts events with the required Aquatic Permits issued by MSQ when these are required. The permits are contingent on the club having its safety documentation and the specified courses in the club booklet. The club expects members to be familiar with the safety management system and to contribute to its development. The club is committed to ongoing education of its members to improve the culture of safety. The club has a duty to provide a safe event BUT Once you step on your boat The Skipper is responsible. If the volunteer OOD offers to start a race during a gale warning, they have breached the club s safety guidelines. If a drowning occurs in the fleet the individual volunteer is in fact protected from prosecution by the legislation but the club committee and the officer who appointed the volunteer to the role may be criminally liable.

7 If you take your boat for that race in the gale and a crew drowns you will also be potentially criminally liable. The ACTS allow for joint and several liabilities so because the club failed does not protect a skipper.

8 Resources: Hard copy attached: Aquas Changes to Workplace Health & Safety Laws Gerry Fitzgerald course notes (with permission) Yachting Australia risk management power point extracts Available online: The Qld Acts: Work Health and Safety Act 2011 (as current 2015) url: Safety in Recreational Water Activities Act 2011 url: Civil Liability Act 2003 (as current 2013) url: Maritime Safety Qld Safety webpage and links Yachting Australia Materials: How to create a risk management process in 10 steps (Yachting Australia) Yachting Australia risk management template click to download word document Yachting Australia risk management presentation Click to download Power Point presentation file Sailing in Small Craft Education QLD This is a hazard identification and risk management information sheet created by Qld Education related to teaching sailing to children. It is far too detailed to apply to recreational boating but still a good example of comprehensive documentation.

9 piquas tnabtts CC PLllNat. rlrrr!t5 cohal^nct Changes to Workplace Health & Safety laws The harmonisation of Workplace Health and Safety laws throughout Australia came into effect from 1't January The Model Workplace Health and Safety (WHS) Legislation provides a framework to protect the health, safety and welfare of all workers at work and of all other people who might be affected by the work. These laws are designed to ensure all workers in Australia have the same standard of health and safety protection, regardless of the work they do or where they work. The Commonwealth, New South Wales, Queensland, the Australian Capital Territory and the Northern Territory have enacted the provislons of the new model WHS Legislation. Victoria and Westem Australia have delayed the implementation of the new laws. CHANGES The key changes under the new Work Health and Safety laws include the following: Primary Duty of Care A Person Conducting a Business or Undertaking (PCBU) has a primary duty of care to ensure, as far as is reasonably practicable, the health and safety of workers at work in the business or undeftaking, and other persons who may be affected by this activity. A PCBU can be an individual, company, partnership, a non-profit organisation or unincorporated associations. A PCBU owes a duty to workers which rnclude direct employees, contractors, sub-contractors, labour hire workers, volunteers and students under placement. A PCBU will "owe a broad duty of care to others" and has to take steps to protect health and safety of all who are involved or affected by work. The duties are limited by the requirement to do what is " rea so n a bly p ractica ble". What is reasonably practicable Reasonably practicable may be expressed as that which would be expected to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including likelihood of the hazard or risk concerned occurring, degree of harm that might result from the hazard/risk and what the person concerned knows, or ought reasonably to know about the hazard or risk and the ways of eliminating or minimising the risk. It also includes the availability and suitability of ways to eliminate or minimise the risk and the cost associated. Workplace The term "workplace" has been broadened and includes any place where a worker goes, or is likely to be, while at work. The term "place' includes a vehicle, vessel, aircraft or other mobile structure, and any waters ad any installation on land, on the bed of any waters or floating on any waters. Liability Under the new law, there is no attributed liability in the case of a failure to meet the provisions of the Act. The prosecution will bear the onus of proof. That is, under the new Legislation a PCBU is considered to be innocent until proven guilty of a failure to meet their Workplace Health and Safety obligations. Potential for Prosecutio n The non-compliance of the new Work Health and Safety Acl2O11 and the Regulation will be strongly penalised with fines of up to $3,000,000 for a body corporate or $600,000 for an individual, and/or five years imprisonment. Multiple duty holders for same work More than one duty holder may be responsible for the same work health and safety matter. This is designed to ensure that multiple duty holder's work together to control work health and safety risks. Officer The broader definition of "Officer" means more people are now responsible for workplace safety, making senior managers and directors potentially vulnerable to prosecution. Depending on the governance structure of the company it could encompass the board, executive team, each individual partner in a partnership, insolvency administrators and even office and HR managers. An officer of a PCBU may be convicted or found guilty of an offence under the Act relating to a duty under Section 27 whether or not the PCBU has been convicted or found guilty of an offence under

10 #i"_q."]/ss the Act in relation to the duty or obligation. Officers must be able to show they are being proactive and can demonstrate due diligence all duties and obligations under the Act. Training The PCBU must ensure that WHS training is not just a once-off activity. lt must be conducted regularly and must also include all employees and officers so there is a common understanding of the risks associated with the activities of the Organisation. Codes of Practice Safe Work Australia has developed a series of Codes of Practice to provide guidance in workplace safety for speciflc activities. A Code of Practice applies to anyone who has a duty of care in the circumstances described in the Code. Like the Regulations, Codes of Practice deal with particular issues and do not cover all hazards or risks which may arise. Codes of Practice are admissible in court proceedings under the WHS Act and Regulations. Courts may regard a Code of Practice as evidence of what is known about a hazard, risk or control and may rely on the Code in determinrng what is reasonably practicable in the circumstances to which the code relates. Safe Design Reporting The new legislation imposes additional duties on persons that design, manufacture, construct or commission plant, substances or structures to ensure so far as is reasonably practicable that they are designed or manufactured without risks to the health and safety of users. There are also requirements to provide adequate information at the time of supply, including information about design and construction details, the purpose for which the plant or structure was designed or manufactured, the results of any calculations or tests conducted and any requirements to ensure the plant or structure (or substance) is safe when used for the purpose it was designed or manufactured for. The designer must give the PCBU a written report that specifies the hazards that so far as the designer is reasonably aware create risks to the health and safety of persons carrying out the construction and commissioning work. For Construction work of value greater than $250K the designer must develop a Safe Design Report covering all safe design phases (Pre-design, Concept design, Design development). The Safe Design Report should include the following:. Any hazardous materials or structural features and the designers assessment of the risk of injury or harm resulting from those hazards;. Actions the designer has taken to reduce those risks,. Changes to construction methods, and. Any parts of the design where hazards have been identifled but not resolved. AQUAS SERVICES A PCBU can exhibit'due diligence' in relation to their duty of care by developing and implementing a safety management system suited to their needs. AQUAS can help to achieve this by providing the following services: "' Review of an organisation's current safety systems - Gap Analysis / Workshops based on the new Act and Regulation " Second Party Audits " lnternalaudits '2. Development and implementation of Safety systems based on the new Legislation ' Facilitation and Repofting of all Safe Design Phases using risk assessment tools such as:. Construction Hazard Assessment lmplication Review (CHAIR),. Eventtree analysis (ETA). Faulttree analysis (FTA). Pretiminary hazard analysis (PHA) AQUAS EXPERIENCE AQUAS has been involved in the developr*rent, assessment and auditing of Quality, OHS and Environnrental or integrated management systems since AQUAS has facilitated the CHAIR process on major projects including The Star Casino redevelopment project, Sydney. AQUAS CONTACTS KEN GAMERON ke n. came ron@ a q u a s. com. a u NILDA SOTO n i ld a. soto@ aq u a s. com. au JAMES HART i a m e s. h a rt@ ao u a s. c om. au AQUAS Level 7, 116 Miller Street, North Sydney NSW 2060 i Phone: Fax;

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14 Club Risk Management Implementing the Process

15 Club Risk Management Risk Analysis Having identified the risks involved in club/centre activities we need to analyse them in order to understand and treat them. Each identified risk must be rated. These ratings describe: 1. The chance of the risk occurring (Likelihood) 2. The loss or damage impact if the risk occurred (Severity) 3. The priority or degree of urgency required to address the risk

16 Club Risk Management Risk Analysis Rating LIKELIHOOD SCALE The potential for problems to occur in a year A B C D E ALMOST CERTAIN: Will probably occur, could occur several times per year LIKELY: High probability, likely to arise once per year POSSIBLE: Reasonable likelihood that it may arise over a five-year period UNLIKELY: Plausible, could occur over a five to ten year period RARE: Very unlikely but not impossible, once in 100 years

17 Club Risk Management Risk Analysis Rating A B C D E POTENTIAL IMPACT Severity Scale In terms of the objectives of the organisation CATASTROPHIC: One or more fatalities. MAJOR: Permanent disabling injury. Vessels lost or damaged beyond repair. MODERATE: Serious reversible injury requiring medical treatment and rehabilitation. Vessels unable to complete series, race or passage. MINOR: Reversible temporary illness/injury requiring medical treatment. Damage to equipment that requires repair before being operable. NEGLIGIBLE: Minor injuries possibly requiring first aid. Minor damage to equipment.

18 Club Risk Management Risk Impact Matrix

19 Club Risk Management Risk Impact Matrix Key 1 Extreme risks that are likely to arise and have potentially serious consequences requiring urgent attention 2 Major risks that are likely to arise and have potentially serious consequences requiring urgent attention or investigation 3 Medium risks that are likely to arise or have serious consequences requiring attention 4 Minor risks and low consequences that may be managed by routine procedures