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Subscriber:
Hello,
Could you please assist me in determining the responsibilties of senior management under Victorian law.
At the moment we are being audited. My answer to the auditors is that the company has a developed safety OHS system etc, but senior management are employees and are responsible to look after themselves, other employees and report hazards. I have explained that the law does not say that senior managers must do the following.
I have explained that the law does not say that a senior managers must do the following etc.
We have a policy that tells senior managers, managers, supervisor to do the standard WorkCover policy for responsibilities and this is covered in our induction. Is this enough?
They are suggesting that a lawyer should be brought in to explain senior management their responsibilities. I disagree with this approach.
So could you help explain whether I am right or wrong?
Answer:
In regards to the above not only do management of all levels have the statutory responsibilities as outlined under Victoria Legislation relevant to the workplace but they also have a Duty of Care responsibility under the Common Law. The difference is that there is no ability to escape the duty of care provisions being applied in any prosecution scenario as there is under workplace laws whereby a defence is simply that all within the capability of a person or corporation was done to minimise risk to those working at the workplace as well as those who may be legally at the workplace (visitors, contractors etc,)
The proposal to have a Solicitor attend the workplace and explain where exposure or liability may lay is a sound idea indeed and removes any liability on your part as to the quality or lack thereof of advice you may profer to management. However the mere explanation of workplace obligations is not in our view sufficient, and you will need to instruct the Solicitor that your management require a detailed briefing as to their liabilities under the Common Law and the Duty of Care obligations and relevant Commonwealth legislation.
You should also instruct your Solicitor to include in his brief a detailed outline of managements responsibilities under the Industrial Relations legislation. Also the Corporations Law as to the relevant provisions of the "Duty of Good Governance" and the "Duty of Good Faith" Sections. These are little understood provisions which most management are unaware of until a potential prosecution scenario arises. It is, and has always been, our position that matters of such complexity and potential liability for prosecution are not capable of been correctly explained by a lay person and must at all times be dealt with by a Legal Professional such as your Solicitor. After all who else will you turn to in moments of adversity other than your Solicitor? This would seem to be an excellent opportunity to forge a closer alliance between yourselves and your Legal advisers in the workplace consultation process in making management aware that there are far reaching consequences to consider in the modern workplace environment involving multi jurisdictional issues.
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