Know what is at stake: the importance of the safety regulatory interface for the personal liability of executives
Harold Downes A and Fiona Austin AHerbert Smith Freehills.
The APPEA Journal 53(2) 442-442 https://doi.org/10.1071/AJ12053
Published: 2013
Abstract
The operations of a company involved in the Australian petroleum industry are subject to a range of health and safety regulatory regimes. Knowing what regulatory regime applies to each of the company’s operations is not only important to ensure the company’s compliance but also to determine the due diligence priorities and exposures of its executives.
Different regulatory schemes can apply to a company’s exploration, drilling, construction, accommodation, transport, and administrative operations conducted onshore and offshore and in multiple jurisdictions. Additional complicating factors also exist when the operations overlap with other industries, for example when pipelines cross mining leases or agricultural land. Understanding the regulatory interface is crucial for corporate compliance, but is also necessary to help company officers and executives understand their personal liability for the company’s operations.
Executive liability is intended to influence company decisions because of potential personal consequences for decision makers. Depending on the particular safety regime the company’s operations fall in at a particular time, executives could be at risk of five years of imprisonment. There are also limits on the financial support the company can provide, whether directly or through directors’ and officers’ liability insurance.
The key action for companies is to be proactive in determining what regime applies and assessing what steps their executives need to take to comply with their duties to avoid penalties. This extended abstract provides a model for the development and discharge of effective governance frameworks in the complex petroleum industry.
Harold specialises in strategic planning and advice for all aspects of employee relations, particularly workplace health and safety. He advises on compliance and dealings with regulators, represents corporations and their executive officers in prosecutions, and provides management training in this area. He helps clients manage their risk and safety governance and compliance, as well as across all aspects of employee relations. He provides pragmatic advice tailored to the specific environment to meet the business imperatives of each individual client. He brings practical and strategic risk-management experience to his work with clients. He advises on all issues about prevention of work-related injury, risk allocation through procurement, incident response and associated proceedings, and injury and claims management, including related investigations and prosecutions by statutory authorities. He has extensive experience in the resources, energy, construction, banking, and manufacturing industries. For example, he has been invited to chair the judging panel for the Queensland Major Contractors Excellence in Safety Awards every years since 2005. He also regularly conducts training for clients as part of their compliance programs. He advises clients on employment issues ranging from workplace investigations, long-term-absentee management, staff and executive contracts of employment, terminations for breach, misconduct, incapacity, and organisational change. Given the overlap of health and safety with employment, he regularly advises on the efficacy and regulatory compliance of work-related policies such as director indemnities and D&O insurance, crisis or incident responses protocols, fitness for work, drugs and alcohol, fatigue, workplace behaviour, and management protocols of long-term absentee. |
Fiona is an accredited workplace-relations specialist. She holds safety-management qualifications and has extensive business experience, having worked as in-house legal counsel in the energy sector for a number of years. She works across diverse industries helping clients deliver health and safety improvements, resolve issues, and deal with unplanned events. Her practice covers diverse workplaces, including electricity, mining, manufacturing, maritime, petroleum, gas, agriculture, aviation, health, and education. She also advises on human resources issues, integrity, and corporate investigations. She helps clients deal efficiently with employment disputes and issues, including misconduct and crime. |
