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Business worried about safe work laws -

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ELEANOR HALL: Company directors face being personally prosecuted for workplace safety breaches at
the companies they supervise if national guidelines come into force.

The national work safety legislation would make directors personally liable even if they have no
direct responsibility for any death or accident.

But employers are warning that the language in the legislation is too vague and targets company
officers from the chairman down.

Business editor Peter Ryan reports.

PETER RYAN: The draft Safe Work Act has been widely heralded as a long overdue victory for
commonsense. Instead of the currently separate State, Territory and Commonwealth laws, the proposed
model will provide a consistent national set of rules by December 2011.

But lawyers, not surprisingly, have been scrutinising the fine print and they're worried that the
definition of a responsible company officer has been widened.

LEA CONSTANTINE: The types of people that the term officer will now pick up are directors, and by
using that term there's no distinction made between executive or non-executive directors.

PETER RYAN: Lea Constantine is a work safety specialist at the law firm Blake Dawson. She says the
new laws potentially target any company officer from the chairman down.

LEA CONSTANTINE: The definition proposes that an officer also is a person who participates in
making decisions that affect a business or undertaking. So that could in fact encompass a broader
class of people who might be defined or could in fact be picked up by the definition of officer.

PETER RYAN: So what are the implications if, for example, you are a non-executive director who
might attend a monthly board meeting, for example?

LEA CONSTANTINE: What those persons must be able to demonstrate under these new laws is that they
have, in their own right, exercised due diligence. So for example, if a regulator turns up to the
premises or to the corporate head office and makes enquiries of a officer, that officer must be
able to demonstrate to a regulator what it is that the officer themselves have done to exercise due
diligence.

PETER RYAN: But it's not just the big end of town asking for clarification about who in a company
could be personally responsible for workplace deaths, accidents or diseases.

KEN PHILLIPS: Well everyone from the largest companies in the country right down through to the
smallest self-employed person doing work as a plumber or a carpenter or whatever.

PETER RYAN: Ken Phillips, the executive director of Independent Contractors Australia, is a big
supporter of the new national laws. But he's also concerned about surprise visits from the
regulator and confusion that if word "control" is missing from the draft, officers might be
unfairly prosecuted.

KEN PHILLIPS: Well it's a serious worry for everyone because we all expect that if we're driving a
car and we have been drunk and we cause an accident, we know that we will be held criminally
liable. But if we weren't drunk and didn't do anything wrong, we would not expect to be prosecuted
under criminal prosecution.

So different standards are being applied, or potentially applied in the OHS area to that which we
would normally expect as a normal person in our community.

PETER RYAN: Under the proposed legislation, the regulator could ask any officer or manager of the
company to answer on any particular issue in relation to OH&S, is that right?

KEN PHILLIPS: That's correct. It removes the right to silence and I've also got questions on that
issue as to whether or not there are adequate protections. Not having the right to silence under a
criminal matter is a pretty serious thing.

PETER RYAN: The corporate concerns come after directors and non-executive directors of James Hardie
were successfully prosecuted for signing off a misleading press release about the company's
asbestos compensation fund.

And while these new laws provide more certainty about workplace safety, directors are now thinking
twice about the new responsibilities that go well beyond the boardroom.

ELEANOR HALL: Business editor Peter Ryan and the extended interviews with Lea Constantine and Ken
Phillips will be on the World Today website later today.