Contractor Management Tips - ALGA

It was a great pleasure to be on the Panel at the recent ALGA (Australasian Land and Groundwater Association) Melbourne session on "Love thy contractor" and to share my tips on contractor management, from an environmental perspective. 

Modern procurement, particularly in the project and infrastructure sectors, means working with contractors during project delivery and ongoing operations. Organisations that engage contractors to undertake works at their sites, on their assets, or on their projects, need to be cognisant of the particular risks associated with environmental liability arising from contractors. Similarly, contracting service providers, need to understand their legal position and obligations. 

All too often, there is a mis-match between the legal position adopted in commercial contracts and the true legal position articulated by environmental statutes and the courts. This can lead to confusion over which party has management of, and liability for, environmental matters, which in turn can lead to possible duplication; or a vacuum of effective management (if neither party undertakes their obligations); or a piecemeal management approach. All of which amounts to an increased risk profile. 

TIPS FOR HOW TO MANAGE THIS RISK

• Seek to understand your commercial agreements. Obtain current copies of contracts and review the clauses relating to management action and environmental obligations. Some contracts contain really useful management tools, such as processes for review and approval of contractors’ policies and procedures. If no contractual processes exist, consider what level of scrutiny and reporting you require from your contractors commensurate with the risk and your liability. 

• If in doubt, seek legal advice on your organisation’s legal position and obligations. 

• Ensure that incident management and regulatory reporting are given special attention when managing contractors. It is important that the parties understand who is responsible for managing an environmental incident and making regulatory notifications. Ideally, put in place an incident response protocol with arrangements for notifying each other of regulatory communications, including things like regulator site visits and spot checks. 

• Be mindful that different states and territories adopt different legal management and control tests. A one-size-fits-all approach won’t work with contractor management.

Gabrielle Guthrie ALGA Contractor Management
Gabrielle Guthrie Proactive Tips Risk Management Contractors

Top tips for managing environmental compliance and legal liability

Directors and senior managers are personally liable for the environmental offences of their organisations under state and territory law. It’s a compelling reason to ensure that your organisation’s environmental management is ship shape.  Add to that the potential cost and inconvenience of being embroiled in a regulatory investigation or prosecution, and the reputational impacts of enforcement and it just makes good sense to focus on environmental compliance and to close out those difficult issues in 2017.

From a legal perspective there are two approaches to avoid.  The first is the “do nothing” approach.  The second, is the well intentioned, but equally problematic, “high investment, low follow through” approach where an organisation starts assessing and documenting its risks, but then for some reason fails to take action to resolve them.  To properly minimise risk you need to develop and follow through on a realistic compliance plan.  

I recently presented at the Australian Environment Business Network's workshop on some of the basic legal compliance steps that businesses need to implement in order to be able to demonstrate compliance to the regulators.  Click on the image below to access an abridged version of my presentation. 

Tips for how to manage this risk

·       Make sure the basics are in place.  Identify your environmental risks and legal obligations, and then implement policies and procedures to manage those risks.  Organisations have a wide variety of options available to them in the development of risk registers and legal registers.  Some will use a DIY approach and develop bespoke registers using an excel spreadsheet, others may prefer an off the shelf product, or an entire EMS software product with a dashboard that tells you when the law has changed and what to do.  If you are unsure where to start, seek some advice from your environmental lawyers or consultants.  Check out my recent presentation for some tips on where to find relevant laws, if you are starting from scratch. 

·       Train your people! It can never be overstated how essential this is. Training for your personnel, from site staff, to executives and board members is an integral component of effective environmental compliance.  It is also likely to be viewed by the EPAs as a key aspect of a legal defence (where one applies) as it contributes to demonstrating that "all reasonable steps" were taken or "all due diligence" was taken to prevent the commission of an environmental offence. In my experience most incidents happen because a site operator didn’t know the rules.  Classic examples are that they didn’t know that they “weren’t supposed to switch off that pump” or "that it was the type of incident that should be reported to management". The environment courts are increasingly making critical commentary about training (or lack of appropriate training) and so this is an area to watch. 

·       Don’t bury your head in the sand.  Tackle non-compliance and risk issues through a sensible compliance strategy. An experienced lawyer can help you minimise risk, especially when you are working through issues which require engagement of outside consultants, under the doctrine of legal professional privilege, or by recommending the use of a statutory voluntary environmental audit process. 

A quick reference illustration of key areas for compliance is shown below. 

Guthrie Legal - Key components of environmental compliance

 

Next steps

If you would like an independent gap analysis of your current compliance, and an opportunity to talk through compliance issues, Guthrie Legal offers fixed fee consultations for organisations of all sizes.  Please contact me to discuss your needs.  I also offer tailored executive briefings and training on a range of compliance and enforcement topics. Get in touch if you'd like more information about a bespoke briefing or internal training session.

Top 10 environmental risk management issues for 2017 and how to manage them

It's here! Environment Express 2017. I’ve reflected upon recent cases, emerging industry challenges and regulatory changes to tease out the most significant risks for organisations this year.  Get clarity on the issues and practical tips to help you with environmental risk management.  Click on the image below to download the publication.

Feel very free to use the issues index as a starting point for assessing which issues are relevant to your organisation.  If any issues resonate with you or you have an “Ah ha” moment and would like some help managing an environmental or planning issue, please get in touch.

Or why not book me in for an executive briefing tailored to the specific issues relevant to your organisation? 

Changes to environmental laws in 2017

It's set to be a busy year for environment managers across Australia, with a raft of changes to environment and planning legislation and policy enacted in late 2016 and proposed for 2017.  I presented a national update to the Australian Environment Business Network on some of the key areas of reform: chemicals, waste, planning and biodiversity.  Recent case law also indicates a renewed focus on liability for management systems and the need to get the basics of compliance right - namely implementation of procedures and training.  Have a look at an abridged version of my presentation for a quick overview of key regulatory developments, and get in touch if you'd like an executive briefing on the issues.

 

 

Waste Law Update

I was delighted to attend the Australian Environment Business Network's Seminar Managing Your Waste Effectively on 1 December 2016 to present an overview of legal developments in VIC, NSW, QLD, SA & WA.  

Key legal developments for generators, transporters and waste facility operators include NSW EPA's proposed abandonment of the proximity principle (which affects how far waste can be transported prior to disposal); changes to the beneficial re-use rules in VIC and QLD; and detailed changes to waste regulations in SA, WA and NSW, particularly around construction and demolition waste. 

 Click on the presentation below to view an abridged version of my talk. 

Training for your personnel, from board level, to executives and site staff is an integral component of effective environmental compliance.  It is also likely to be viewed by the EPAs as a key aspect of a legal defence (where one applies) as it contributes to demonstrating that "all reasonable steps" were taken or "all due diligence" was taken to prevent the commission of an environmental offence.  

Guthrie Legal offers fixed fee bespoke training for your organisation, whatever your industry and specific environment and planning concerns.  Please get in touch if you would like further information. 

This blog, any linked presentations and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.