Today’s correspondent asks:
When a person creates an Emergency Plan, does he or she have to put their name on the document
1.4.5. Competent Person (AS3745:2010) – there is a section in the Emergency Plan which deals with bomb threat, personal threats etc. The AS3745:2010 offers only guidelines and so does the Australia-NZ Committee of Counter-Terrorism guidelines on Crowded Places. The person has to source all this information out and put them into the Emergency Plan, which is building specific. However, does this person need to have qualifications, skills, knowledge and education in this area – because he is collecting all the data and presenting it as professional advice and response procedures in the Emergency Plan.
Or can the person be someone who has no experience whatsoever or limited experience in the areas of Counter Terrorism write a manual about response procedures for Active Armed Offender and Bomb Threats. Only using the internet as his/her guide and experience
Another example is a trainer who has no experience, training clients in Active Armed Offender and bomb threats. I find that when I visit these sites and provide the same training, the clients are confused because the previous trainer has got his/her information from the internet and adds material from other sources. I then have to explain to the clients that I have served in the Bomb Squad for a while and this is the safe, worlds best practice and correct way to manage these threats. I use the same guidelines but I also use my practical and professional experience in the bomb Squad to present the facts.
As a general rule, a person can do whatever they like unless there is a law that says they cannot. The flip side to that is a person is not required to do anything unless there is a law that says they must.
Law comes from two sources, the law made by parliament, and as part of that laws made by a person or department with delegated law-making power – most usually a regulation made by the Governor or Governor-General on the advice of a government department and acting under the authority given in an Act. The second source of law is the law developed by the courts over time – the common law – but that depends on cases coming before the court where rules have to be interpreted and developed.
One can imagine that neither the legislature, nor a government department, nor a court is going to get into the sort of detail that would develop a rule that says ‘a name has to appear on the plan’ but to answer that question one has to consider what sort of emergency plan and is there any requirement to have an emergency plan. Regulation of a hazardous industry may impose planning requirements that are different in workplaces not specifically regulated.
To answer this, I’ll look at the Work Health and Safety Act 2011 (ACT) and its regulations – the Work Health and Safety Regulation 2011 (ACT) (remembering that all states and territories other than Victoria and Western Australia have adopted a consistent model of WHS laws). Regulation 43 says:
(1) A person conducting a business or undertaking [a PCBU] at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:
(a) emergency procedures, including—
(i) an effective response to an emergency; and
(ii) evacuation procedures; and
(iii) notifying emergency service organisations at the earliest opportunity; and
(iv) medical treatment and assistance; and
(v) effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace;
(b) testing of the emergency procedures, including the frequency of testing;
(c) information, training and instruction to relevant workers in relation to implementing the emergency procedures.
(2) A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective.
(3) For the purposes of subsections (1) and (2), the person conducting the business or undertaking must have regard to all relevant matters, including the following:
(a) the nature of the work being carried out at the workplace;
(b) the nature of the hazards at the workplace;
(c) the size and location of the workplace;
(d) the number and composition of the workers and other persons at the workplace.
(4) A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency.
As I said, the regulator is not getting down in the detail. The regulation says nothing about the form in which the emergency plan must be prepared. Many plans won’t be written by an individual. A PCBU may engage consultants but they may not, depending on the size of the business or undertaking there may be many people working on the plans. In the case of small business, it may be the business owner. The plan is ‘owned’ by the PCBU not it’s author regardless of how it came to be written.
In short there is no legal obligation for someone to be named as the author of an emergency plan. A consultant may want to put their name on a plan they develop for a client to promote their business, but they’re not legally required to do so.
Being a consultant who writes emergency plans is not a regulated profession. There is not legal requirement that the person must ‘have qualifications, skills, knowledge and education in this area’. There may be areas of consumer protection law if a person claims to have ‘qualifications, skills, knowledge and education in this area’ that they do not have. And there may be remedies in contract law and tort law if they do not provide a professional service that they promise to provide, but as a general rule this is not a regulated industry. The governance is meant to come from the market – if you’re not providing a good service hopefully you won’t stay in business. But a consultant is not legally required to possess prescribed ‘qualifications, skills, knowledge and education in this area’.
As for training, if the training is being provided by a Registered Training Organisation delivering nationally recognised vocational education and training then there are minimum qualifications but those relate to the delivery of teaching rather than being a subject matter expert. If the training is not, and does not claim to be, part of nationally recognised vocational education and training then those limitations do not apply. Again, the ultimate regulator is the market.
Speaking generally (and therefore subject to any industry specific regulation) the answers are:
No, if a person creates an Emergency Plan, he or she does not have to put their name on the document.
No, a person who offers to write an emergency plan does not have to have ‘qualifications, skills, knowledge and education in this area’ but if he or she does not there may be legal issues under contract law, tort law and/or consumer protection law depending on how they came to write the plan and what they promised. Further a plan written by such a person may not be effective and my therefore not meet the PCBU’s obligations to ensure the health and safety of people at work (Work Health and Safety Act 2011 (ACT) s 19) and to ensure an effective emergency plan (Work Health and Safety Regulation 2011 (ACT) r 43)).
Equally a trainer is not legally required to have ‘qualifications, skills, knowledge and education in this area’ unless the training is being offered by an RTO as part of nationally recognised vocational training. Then he or she must have the necessary qualifications to be able to sign off on the various competencies.