Ask an expert: Chain of Responsibility

Tess Lynch, 5 min read

Ask an expert: Chain of Responsibility

In times of legislative overhaul keeping up with changes can be tricky, and finding out how it actually effects your business can seem impossible.

We took a deeper look at the changes to Chain of Responsibility laws, which, yes, may at first just seem like a minor rearranging of words, to find out about training requirements under the National Heavy Vehicle Regulator, the obligations for self-insurers and the impacts of these changes. To help us understand, we went straight to an expert.

We spoke with Ros Burke, a Safety Consultant at Robyn Perkins Consultants. Robyn Perkins Consultants are industry leaders in People Risk, and have over 75 years of experience in working with, and consulting to, some of Australia’s largest employers in both the private and the public sectors.

1. Is any training mandated by the National Heavy Vehicle Regulator under Chain Of Responsibility?

Short answer:

Apart from some specific jobs, there is no mandated training, despite this, training is still required.

Extended answer:

The main requirement is for companies to understand:

  • The risk profile of the work activities they undertake
  • The skills and competencies that their people need to have to complete these tasks
  • The training their people need to be ensure they can continue to complete these tasks.

Companies need to be able to demonstrate and prove that they assessed the skills of their people before having them undertake business activities. Understandably, the provision of training to address any skills shortfall is essential – as is documenting that the training has taken place.

A few jobs however do have mandated training requirements. These could include operational requirements, like those necessary for forklift operators, truck drivers and crane operators, who need to be licensed before they can operate, or for functional tasks, like those performed by first aiders and fire wardens who need to be trained in the functional aspects of their roles.

Recommendation by NHVR on how companies can meet risk managing requirements:

The new CoR laws require parties to be proactive in their management of risks. It may look good for a desktop audit, but it's important that the policies and procedures are put in practice.

To meet and understand these requirements, companies are encouraged to take a risk management approach — identify, assess, evaluate and control risk, as outlined by the National Heavy Vehicle Regulator (NHVR).

Where training is not mandated or determined by strict outlines, this approach can help in ensuring that your company understands their primary duty and is managing safety in a way that is reasonably practicable. This can be established through the development or understanding and implementation of a Code of Practice.

A Code of Practice puts in place standards and procedures to help identify risks but this is only the first step. Understanding the requirements, developing the policy and procedure, training people in how to implement these and match their practices to the policy is essential. A regime of checking, training and retraining is essential to ensure compliance.

2. What are a self-insured company's training obligations?

Short answer:

There is no defined training requirements for a company just because they are self insured. However ensuring people know their jobs, are well trained and are able to manage risks is essential for a self insurance program to be successful.

Extended answer:

Requirements for training are the same for everyone, self-insured or not, big business or small, safety is universal.

Although the States and Territories have different legislation, the fundamental requirements around training are identical. Workplace health and safety (WHS) regulation states that training must inform a worker on the tasks they are required to perform, the risks associated with those tasks and the procedures implemented to minimise occurrence of those risks.

Training is required to inform everyone in the chain, of the safety precautions and systems set up to prevent accidents and injury and to ensure that these practices are understood. Training will be essential in notifying employees of the changes in CoR law and in making sure that changes are implemented in daily practices.

The variation between the jurisdictions is more around the storage requirements for records, how licences are obtained, and the regulatory management of breaches.

How some companies are approaching the changes to CoR:

  • Developing a risk assessment on every activity they do
  • Documenting risks once they are identified
  • Creating a risk matrix
  • Taking feedback from their people – checking with the coal face - and using that to determine high risk areas
  • Refreshing training when required and making amendments to current practices when necessary

3. Is every self-insured company audited annually? What are they required to report on training wise?

Short answer:

Self insured companies need to use audits to ensure compliance with licensing requirements and to instil an approach to safety, injury management and compensation that is continuously improving. It is essential that there is a combination of internal and external audits to identify issues and drive corrective actions.

Extended answer:

Audit requirements vary between jurisdictions and depend on:

  • How long the company has been self insured
  • Performance at prior audits
  • Current safety and claims management performance.

Comcare, for example, audits annually for new licence holders and for those who are transitioning to the experienced level. As the company progresses site audits are replaced by desktop audits for all but the licence renewal year or following a major incident. There are also additional annual reporting requirements.

Audits are taken to ensure that the practices taken by companies comply with licensing requirements and to find any gaps in a companies current approach to safety, injury management and claims management. Desktop audits look at any relevant documentation needed for compliance, including any training materials or training programs, to ensure that the information given to people on the chain is correct, received and understood, while site audits are taken to check that safety management systems are actually being put into practice.

4. There seem to be both state lists and a federal list for self-insured companies, what’s the difference?

Short answer:

Every state has their own workers’ compensation and safety legislation and there is an additional scheme to cover federal employees and those that work in the maritime industry. Companies who were licensed under the Safety, Rehabiliation and Compensation Act 1988 prior to 2011 are not covered by relevant state work health safety acts, but rather under the Commonwealth scheme.

Extended answer:

All states and the commonwealth have self-insurers under their respective Workers Compensation (WC) schemes. Rules around who can apply for a license differ, as do license applications and annual review requirements.

Self-insurers are covered by their respective state legislation or WHS. Some self-insurers under the Commonwealth scheme (Comcare) are covered for WHS under the Commonwealth, others fall back to State legislation. This largely depends on the date on which their Self Insurer licence was granted.

New self-insurers are not automatically covered by the WHS act introduced in 2011, instead health and safety is regulated by a company’s respective state. There is legislation before parliament to put them all under the Commonwealth, though this has been blocked in the Senate for some years now.

Training tends to be captured under the WHS legislation rather than the WC legislation.

These were just a few of the questions we had for Ros, we plan on asking a ton more. If you want to know more check out our previous post here or if you have any questions about chain of responsibility and whether or not you're liable don't hesitate to contact us!

Tess Lynch

Tess is our in-house design savant, fashion leader and a pretty darn good writer. Whether it’s creating digital designs, blogging about learning science or rocking a neck-scarf, Tess can pull it off.

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