I was recently involved is some discussion on LinkedIn about the liability of health and safety managers under health and safety legislation (link here)
Several responses seemed to suggest that because health and safety managers had no authority, they should not have any accountability either – that safety managers only provide advice and have no authority over others.
I must say this is a proposition I find extraordinary, but let’s explore it.
I wrote some time ago that safety managers should have the same level of accountability as company officers, after all, they are the architects of the safety management system and should have some idea about how well it is working (Are health and safety managers company offices and should they be ?)
Many enquiries around the world have identified that a focus on personal injury rates is not a good indicator of the effectiveness of the health and safety management system, and on occasions, the focus on personal injury rate management can distract an organisation from managing the critical health and safety risks in its business.
Quite rightly, enquiries criticise organisations where the focus on personal injury rates have undermined the effectiveness of their health and safety management system. But surely, the health and safety manager also has an accountability?
While it might be correct to criticise a chief executive officer of such an organisation, it cannot be correct to suggest that the chief executive officer has a greater understanding of personal injury rates and their influence on safety management than the safety manager.
While the safety manager might not have “authority” surely, they have accountability to advise the organisation about the perils of overreliance on personal injury rates, and to monitor the safety management system to ensure that any reliance on personal injury rates is not undermining safety management. It must be correct, that a safety manager should continue to warn or flag any concerns whenever they believe that the focus on personal injury rates damages effective safety management.
Is a chief executive officer’s culpability for failing to enquire about the effectiveness of personal injury rates as a measure of safety any less than a safety manager’s culpability for failing to advise?
What about the positive obligations of due diligence imposed on company officers under WHS Legislation. Is the health and safety industry trying to argue that those standards should not apply to health and safety managers?
Under WHS Legislation, due diligence includes taking reasonable steps to achieve several stated outcomes.
To acquire and keep up-to-date knowledge of work health and safety matters.
To gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations.
I do not think anybody could suggest that health and safety managers do not need to meet these expectations. And if they fail to meet these expectations, surely, they should be liable in the same way as company officers.
To ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking.
To ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information.
To ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act.
While it may be true that health and safety managers cannot “ensure”, in the sense that they do not authorise capital expenditure or budgets to achieve this outcome, it is true in my view that health and safety managers are responsible for “ensuring” or at the very least knowing, if:
- The resources and processes are suitable;
- The resources and processes are implemented; and
- The resources and processes are effective to manage the health and safety risks in the business.
It cannot be right to say that a chief executive officer or another company officer who does not meet these obligations is any more liable than a health and safety manager.
The only possible, reasonable defence that a safety manager could have is they advised, and continue to advise executive management on the suitability, implementation and effectiveness of the health and safety management resources and processes, but that advice was ignored.
If health and safety managers do not have accountability to ensure (or at the very least have an intimate knowledge of) the suitability, implementation and effectiveness of the health and safety management resources and processes, then what is the purpose of having safety managers at all?
To verify the provision and use of the resources and processes referred to in [the above] paragraphs.
It could not possibly be arguable that a health and safety manager has a lesser responsibility to ensure that the resources and processes for managing health and safety risk in business are used than company officers.
Indeed, I can think of no higher duty placed on a health and safety manager than to provide ongoing verification to the business that the resources and processes in place to manage the health and safety risks in the business are in place, implemented and effective to control those risks.
Several years ago, I was at a safety conference, and there were three safety managers on stage talking through their latest success and innovation. When it came time for questions I asked:
“who is responsible for knowing if these things work?”
The question seemed to stump the participants, and I got various, unsatisfactory answers ranging from descriptions of reporting processes through to abrogation of responsibilities to “risk owners”.
While everybody in an organisation has responsibilities for safety and health, surely it is the accountability of the health and safety manager, the person engaged to “manage” health and safety to know if health and safety management actually “works”?
If I want to know if my organisation is managing its health and safety risks as low as reasonably practicable, surely the person best placed to answer that question is the health and safety manager? If they do not have oversight of the effectiveness of health and safety management in the organisation – when that is what they are employed to do – why should anybody else?
Why should the chief executive officer’s obligation to understand the effectiveness of health and safety management in their organisation be any greater than the health and safety manager’s?
It seems to me that until the health and safety industry is prepared to take ownership of health and safety management and stop hiding behind “line management responsibility” and a lack of “authority”, recognition as a “profession” is a long way away.
Until health and safety managers can clearly articulate how well the health and safety management system works in their organisation, and explain what they rely on to form that view, is the position really worthy of the title manager?