“Mirror, Mirror on the wall, who’s the safest of them all?”
We all love a good fairy story, the fantastical propositions, the subtle disassociation from reality and the warm secure feeling that no matter what happens that it is all make believe and no one really is going to get hurt.
The above values apply not only to cursory tales of why it is not okay to take promotional candy lest you be baked in a huge oven for the cardinal crime of attempting to literally eat old ladies out of house and home, but also in a very real sense to a real life fairytale assumption.
Namely that if you have a waiver or indemnity system in place that you are somehow exempt from your legal obligations under statutory law.
If you believe this you probably cohabit share-accommodation with seven vertically challenged ex-miners and have the annoying propensity to attract various forest animals whilst doing household chores.
It’s a sometimes grimm reality but a popular misconception held by many and like many fairytales it has it’s base in a kernel of truth but is patently untrue.
Many companies hold that if they have a waiver or indemnity in place that this is sufficient protection against potential legal claims and in some respects it can protect them from civil proceedings, but as protection from prosecution from regulatory bodies such as Workcover for breach of duties under statutory law such as the 2011 Workplace Health & Safety Act it is about as an effective form of protection as…..well just look at the old woman who lived in a shoe.
If you believe that, then you are probably away with the fairies anyway and not liable for happy endings any time soon.
A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations (indemnify) that may be exercised and enforced by parties in a legally recognized relationship.
A waiver is the voluntary relinquishment or surrender of some known right or privilege.
In both cases it is necessary for the scope of those rights to be communicated clearly to the person entering the disclaimer or waiver before they enter into the release – it must be “unambiguous and clear to reasonable person.”
So let’s say, for arguments sake, that you are visited in your offices by three pigs, one of which is quite happy with the building services you provided for him but is in the company of other angry piggies wishing to sue you for structural instability in the aftermath of a very windy wolf that caused the deaths of their relatives, who happened to be at home at the time.
“Aha,” you say twirling your villainous moustache, “whilst Grimm Construction Pty Ltd does sympathise with you alleged loss, you did in fact sign a release by way of a waiver that indemnifies our company from any civil proceedings as part of your selection of the more modestly-priced straw and twig construction packages.”
Cue angry pigs.
But whilst you are congratulating yourself for your foresight in engaging Messrs Hans, Christian & Andersen as your legal practitioners, in blows the Wicked Witch of Workcover and delivers a poisoned apple that will be putting your company’s prospects to sleep for quite some time, pea or no pea.
Whilst your waiver with the pigs is a solid as a golden egg, unfortunately so is your culpability for failing in your principle responsibility to ensure that you provide a safe work environment under Category 1 of the 2011 WHS Act, which applies where a duty holder recklessly endangers a person to risk of death or serious injury. A breach under this category carries a maximum penalty of $3,000,000 for corporations, $600,000 or 5 years’ jail for a ‘person conducting a business or undertaking’ (‘PCBU’) and $150,000 or five years’ jail for other persons such as workers, which now includes contractors & volunteers.
Now you find yourself reflecting that there truly Is no place like home, but sadly as much as you would like to be there right now, you cannot as Old MacDonald has been forced to sell the family farm to pay all the fines..ei, ai, ei ,ai OUCH!
SO the moral of this story (and every good fairy tale has one of those) is that waivers and indemnities do not take precedence over your legal obligations under statutory law.
In answer to our opening question, “Who’s the safest of them all?” You are if you’re going to put in place waivers or indemnities then also put in place a “Compliance Policy” that works in tandem with those documents that ensures that your company has both ends of the rainbow covered and will continue to live happily ever after.
Because as everyone knows broken mirrors means seven years bad luck…….Resources: 2011 WHS Act, Brothers Grimm, Beaspoke Safety