Liability, Insurance and Occupational Health and Safety Issues

1. Authority and Liability of Personnel Involved in ASRI Programs

1.1 Directors

The directors are responsible for the management of the company pursuant to its constitution and have authority (either alone or as a Board) to cause the company to do anything permitted by, and in accordance with, the constitution.

Directors can be held personally liable for failure to comply or cause the company to comply with a variety of common law and statutory obligations including those in the following fields:

• Directors duties
• Corporations Law / ASIC compliance
• Taxation
• Health and safety
• Environmental

Because of these personal obligations, directors usually require a policy of insurance to cover themselves in the event of claims being made. ASRI is not in a position to pay for such insurance. It follows that care must be taken in the authorisation of activities for and on behalf of ASRI to ensure that they are properly carried out by those concerned. The rule of thumb for all ASRI directors should be that the activity should not be authorised unless it has been properly prepared and can be carried out with at least the same level of responsibility, due care and safety that one would expect in commerce or the military. The approach should always reflect the possibility that if something goes wrong, the director might be held personally responsible.

1.2 Executive

Executives such as the managers performing various functions derive the authority to do things necessary or incidental to that function by virtue of their appointment by the Board. Authority to do things beyond the same must be obtained from the Board or a director.

Members of the executive may have some personal responsibilities pursuant to the Corporations law or other legislation if regarded as 'officers' of the company.

1.3 Members

Members of ASRI are in a similar position to the shareholders of a company. They do not, by virtue of membership alone:

• expose themselves to any liability beyond $10 each in the event that ASRI is wound up; or
• have any executive function or authority in the day to day operations of ASRI.

Membership confers only a right to vote at members meetings and thereby determine the people that do have authority to run the company in accordance with its constitution. Of course, members may participate in ASRI activities, in which case their involvement and relationship with ASRI will be either as an agent or as an independent party.

1.4 Voluntary Agents and Independent Parties

Normally the day-to-day operations of a company are carried out by employees or contractors. However, ASRI does not have enough money to employ staff. Accordingly, all activities or undertakings of ASRI are advanced by individuals on a purely voluntary basis for their own personal gratitude or enjoyment. The individuals are either voluntary agents or independent parties.

1.4.1 Voluntary Agents

Voluntary agents of ASRI are those who have been requested and authorised to perform tasks for ASRI. This includes the directors and executive. They do things in the name of and on behalf of ASRI and accordingly:

• enjoy a measure of protection from any claims of third parties; and
• are specifically provided for in safety and contingency plans; and
• depending on the task involved, may be the subject of special arrangements to provide for requirements such as accident insurance, safety training and the like.

At common law agents do not render themselves personally liable for agreements entered into for and on behalf of ASRI provided ASRI's status as principal is disclosed. Agents may still be held liable in negligence but have a right of indemnity from ASRI.

Voluntary agents are not 'employees' of ASRI because of the voluntary and unremunerated nature of the work and the lack of the requisite degree of control and direction in the relationship. Depending on circumstances, they may be able to take action against ASRI with respect to any accident or injury sustained in the course of ASRI activities but they are able to voluntarily assume the risk of and release ASRI (and others) from any claims arising from such accidents or injury.

1.4.2 Independent Parties

Independent parties, whether contractors, supporters or other form of volunteer, perform tasks for their own personal reasons even though the task may be:

• aligned with and named as an ASRI activity;
• for eventual use in an ASRI activity or program;
• co-ordinated by ASRI; and/or
• practically, technically and/or financially supported by ASRI.

The main difference between an independent party and a voluntary agent is that the former is not requested or authorised to do the thing concerned by ASRI. Rather, he chooses to do it and is responsible for himself in all respects.

Independent parties are liable for their own conduct in advancing their own initiatives even if those initiatives are in parallel and closely related to an ASRI activity or program. (For example, a member's development of a payload module or other device is likely to be a private initiative even if it is supported by ASRI. However, the launch of the payload module will be an ASRI activity conducted by voluntary agents.)

1.5 Others

ASRI activities may intentionally or unintentionally involve others such as range or emergency personnel, tourists, hikers, pastoralists and nomadic aboriginals. These parties are also independent parties. ASRI may be liable to them at common law if they are affected by an accident.

2. Occupational Health and Safety Acts

The Commonwealth and the States have each introduced similar laws providing for occupational health and safety.

The Commonwealth Act applies only to the Commonwealth and is therefore not relevant to ASRI except that it may place ASRI under obligations to provide for the safety of Commonwealth employees that may be affected by ASRI activities whilst performing their duties.

The State Acts are to substantially the same ends and prescribe safety obligations with respect to employees. Section 4(3) of the South Australian Act states that a person is deemed to be an employee if he does work for an employer gratuitously in connection with a trade or business carried on by the employer. Although ASRI does not carry on trade or business in the usual sense, it is possible that the Act might apply.

Irrespective of whether or not the Acts apply to ASRI, we should endeavour to comply as a matter of prudence, credibility and foresight. The South Australian Act places employers under a duty to:

• ensure safety of employees so far as is reasonably practicable including providing a safe workplace, adequate facilities and sufficient information, instruction and training;
• maintain written policies relating to occupational health, safety and welfare, which means a reasonably particular statement as to safety arrangements and practices and taking steps to bring the same to the attention of employees;
• adopt measures to minimise the risk of fire and explosion;
• provide medical and first aid services;
• investigate accidents; and
• keep records relating to accidents and injuries.

The OHS Policy for ASRI is set out in annexure 1 and summarised on the reverse side of Organisation Access Passes.

3. Workplace Accident Compensation Schemes

The Commonwealth and the States have each introduced similar schemes providing for compensation of employees who are injured in the workplace. The schemes do not rely on the establishment of any fault on the part of the employer; they are a form of compulsory workplace injury insurance. As their intention is to compensate all workplace injuries, the definition of 'employee' is broad.

The Commonwealth legislation is administered by Comcare. It deals exclusively with employees of the Commonwealth and its instrumentalities and is therefore not applicable to ASRI.

The State legislation deals with all other employees. Corporations that employ are required to register, make contributions and comply with the legislation. Contributions to these schemes would be prohibitively expensive given the resources available to ASRI; if the schemes apply to voluntary agency work, ASRI will not be able to afford to do anything!

The Acts only apply to 'employees'. Although the definitions of who may be an employee is very broad, it appears that people who perform tasks for ASRI as voluntary agents will not be employees. The primary consideration is the degree of direction and control of ASRI over its agents. As the nature of ASRI work is voluntary, there is limited direction and control except to the extent that safety issues require. Secondary considerations include modes of remuneration, provision of tools, obligation to work, hours of work, provisions for holiday, deduction of insurance/tax and delegation of work.

Certain volunteers (such as CFS, police, education, emergency) are deemed to be employees, but there is no general provision relating to voluntary work, at least in South Australia.

Although not certain, the better view would appear to be that these schemes will not apply with respect to ASRI voluntary agents.

4. Accident Insurance

4.1 Present ASRI Policy

The activities of ASRI are voluntary in all respects and those involved take the risk of accidental injury or property damage for themselves. They are responsible for organising and paying for such accident insurance cover as they may desire for themselves. In short, insurance is encouraged but the responsibility and cost lies with the individual.

This policy is essential because the administrative burden and cost of insurance in connection with events would otherwise render the activities unachievable for ASRI. It also avoids the cost and inconvenience of minor claims that arise out of everyday situations.

To avoid any confusion and make the position absolutely clear, persons attending at ASRI events are to sign access passes which contain an express assumption of risk, disclaimer of liability and warning that the party should self insure.

4.2 Third Party Liability Cover

ASRI will maintain a third party liability policy for events such as trial activities to ensure that we are covered to the extent (if any) that the disclaimer is not legally effective or binding upon a party affected by an accident.

Of course, third party liability insurance only covers claims by third parties. ASRI voluntary agents, being those actually conducting the relevant activity, are not third parties and will therefore not be covered under that policy in any event. Again, each is responsible for taking out their own insurance.

4.3 Exception

In some cases it may be considered appropriate for ASRI to organise and/or pay for insurance for individuals, particularly those who are to perform potentially dangerous operations such as launch pad crew. Any such insurance is a matter for individuals to negotiate with ASRI. Parties for which such insurance is arranged are to still release ASRI from all liability with respect to any accident, but will have the benefit of a policy of insurance covering them direct. The cost of such insurance would be part of the trial cost and would have to be borne by either the individual, the range user or ASRI.

Such cover may eventually be arranged for all ASRI trials personnel if funding permits.

5. Summary

For the time being:

• ASRI 'organisation' personnel voluntarily accept all risks and are responsible for their own insurance;
• all others attending events will be required to sign access passes to place them in the same position;
• a third party liability policy will be maintained to cover residual liability; and
• ASRI should endeavour to comply with the OHS legislative schemes.

1. General Policy

The activities of ASRI are intrinsically hazardous. For this reason safety is always the paramount concern and the responsibility of everyone concerned. If something cannot be done safely then it should not be done at all.

2. Safety Procedures - General

Where a task does not involve particular hazard, it shall be undertaken in accordance with the general guidelines for accident prevention comprising annexure 2 to this policy.

3. Safety Procedures - Specific

Where a task involves a particular hazard, it shall not be undertaken until:

• written procedures have been established to ensure its safe conduct; and
• all necessary persons have been adequately briefed and trained with respect to the procedures.

In the ordinary course of events, safety procedures will be set out and highlighted in the form of warnings, cautions and notes in the Safety and Operations Plan or other governing documentation.

All such tasks are to be performed in accordance with both the specific safety procedures formulated and the general safety procedures set out in the guidelines for accident prevention annexed to this policy.

4. Obligations of Personnel

All persons undertaking or accepting any tasks shall responsibly and conscientiously perform the task in accordance with the following principles:

• Performance of tasks is on a voluntary basis and is at all times at the option of the voluntary agent. However, as the safety and efforts of others may depend on the faithful performance of tasks voluntarily undertaken:
• a person must not volunteer to undertake the performance of any task for and on behalf of ASRI unless he or she intends to properly complete and has a reasonable expectation of being able to properly complete that task; and
• if a person does voluntarily undertake a task, he or she must not abandon or decline to perform that task without providing others that may be affected with a reasonable period of notice, especially where the safety of others may otherwise be jeopardised; and
• the period of notice that is reasonable will depend on the circumstances including safety considerations, the replaceability of the voluntary agent and the likely prejudice to the activity that the task is relevant to.
• Any fact, circumstance, matter or thing that might adversely affect the safety of others involved in ASRI activities shall be promptly brought to the attention of those potentially affected.
• If a procedure relevant to the task in question exists, then any performance of that task shall be in accordance with that procedure.
• If no such procedure exists, then any performance of that task may be in such manner as the voluntary agent considers appropriate but must be:
• in a responsible, conscientious and safety conscious manner; and
• with an appropriate level of liaison with others that may be affected by the manner of performance or non performance of that task.
• Individuals who perform tasks for and on behalf of ASRI do so as voluntary agents only and are not in any sense employed by ASRI. This means that individuals are not covered by any workers compensation scheme or insurance for any injury or accident in the course of the performance of tasks and should ensure that they have such accident and/or disability insurance as they may consider appropriate.

5. Accidents

In the event of an accident, being an occurrence giving rise to significant injury:

• all medical and other needs shall be provided as a priority;
• the activity shall cease until sufficient medical and other needs have been provided and the cause of the accident has been identified and adequate changes made to procedures;
• notice of the accident shall be given to all relevant insurers and other parties concerned;
• the circumstances and causes of the accident shall be investigated and all necessary support and liaison obtained for that purpose;
• a report as to the causes and other relevant circumstances shall be produced and circulated to all parties concerned;
• any necessary changes to procedures shall be made; and
• a record shall be kept of the above.

6. Incidents

In the event of an incident, being an occurrence potentially but not actually giving rise to serious injury:

• The activity shall cease until the cause of the incident has been identified and adequate changes made to procedures;
• the circumstances and causes of the incident shall be investigated and all necessary support and liaison obtained for that purpose;
• if considered necessary, a report as to the causes and other relevant circumstances may be produced and circulated to all parties concerned;
• any necessary changes to procedures shall be made; and
• a record shall be kept of the above.

7. Mishaps

In the event of mishap, being an occurrence giving rise to trivial injury:

• any medical and other needs shall be provided as a priority;
• if considered necessary, the circumstances and causes of the mishap shall be investigated and all necessary support and liaison obtained for that purpose;
• if considered necessary, a report as to the causes and other relevant circumstances may be produced and circulated to all parties concerned;
• any necessary changes to procedures shall be made; and
• a record shall be kept of the above.

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Policy Review and Approval

This ASRI policy was last reviewed internally in February 2002 and reaffirmed by the ASRI Board of Directors on 17 March 2002.