In response to an earlier post about health and safety assurance that was shared on LinkedIn, I received several questions. I thought the questions deserved a bit more consideration than simply trying to respond via LinkedIn, so I have slightly paraphrased the questions below and responded.

Has any organisation presented to the courts their corporate risk register and the workplace or general risk register (sometimes called hazard registers)?

Not in any case I have been involved in. The risk register is often irrelevant by the time you get to legal proceedings.

The risk register would only show the company:

• Was aware of the relevant hazard;
• Understood the risk presented by the hazards; and
• Had controls in place to manage the hazard.

These things can be shown by other evidence, such as policies, procedures and so on, which means the risk register is not necessary as evidence.

There are examples where risk registers have been used against companies to show things like a poor understanding of risk, a lack of controls, incomplete action items, registers not being updated after incidents and so on. This was the case in the Pike River Royal Commission.

For what it is worth, I have never reviewed a client’s risk register and thought it would be helpful in a prosecution.

Has any organisation presented their incident register, which should list all accidents, incidents, near misses first aid cases etc.?

Not in any case I have been involved in. However, once again there are cases where a company’s previous incidents have been used against them in proceedings.

In the Pike River Royal Commission, the Commission analysed 1083 incident reports to show that the company did not properly investigate incidents.

In a recent case, Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81, the company’s incident register was used against them. In that case, worker was injured when they fell off a “safety step”.  The incident register showed that between 2004 and 2009 there were 385 incidents involving the safety step. There were several recommendations made as a consequence of incidents, however the court found that these recommendations were not followed through.

Like risk registers, I have never reviewed client’s incident investigations, or incident register databases and thought it would be helpful in a prosecution.

Based on your experience, how many events were caused by a worker ignoring the procedure that was in place (the reason why they deviated is not my argument here) In other words if the procedure was done to how it was drafted, would the event have occurred?

I do not know about “causation”, and I will explain that in a minute, but most cases do highlight non-compliance with documented safety processes as an issue and criticise the organisation for not enforcing its own procedures.

The “causation” question is not so clear.

For example, in Capon v BHP the court found that BHP did not enforce its own systems of JHA, Take 5 and supervision – the worker had not done JHA’s and Take 5, and the supervisor had not checked them – but this failure was not “causal”.

BHP was convicted because it did not enforce its own system, but the court said the prosecution did not prove beyond a reasonable doubt that the failure by BHP to enforce its own system caused the accident.

If the courts are trying to find out if the SMS was functioning at full ‘capacity’ and assuming it was, does this imply that workers MUST follow the functioning at full ‘capacity’ SMS at all times?

There are a few things in this question.

First, the courts not trying to find out if the “SMS was functioning at full capacity”, but rather whether the company managed its hazards as low (or so far) as reasonably practicable. Having said that, the cases are all reasonably consistent – if you have a safety management system that describes how you are going to manage health and safety risk in the business, you are expected to comply with it – to that extent, it needs to be functioning at, or pretty close to, “full capacity”.

Second, a “one-off” departure from the safety management system by a worker does not automatically create liability for the employer. If the employer can show they had a “proper” system to manage hazards, the system was understood and implemented by the workers and one employee on a rare or “one-off” occasion didn’t follow the system, that is usually defendable

In broad terms, a company can manage safety however it likes. This is subject to any technical legal requirements – for example you must have a safe work method statement for high-risk construction work.

If a company decides to manage health and safety hazards using lots of prescriptive rules, it can do that. It just must show those rules were in place and effective to manage the hazard.

Similarly, if a company decides to manage health and safety hazards by giving the workforce a wide-ranging discretion about how they work, it can do that too. But again, it must show the “system” of managing hazards works.

I was recently in a conversation on LinkedIn which stemmed from a post I put up, asking about “assurance” in health and safety.

Some of the comments included:

Step 2 – “History is clear. None of this information “proves the effectiveness” of safety management”

“For example, number of site inspections done”

Greg – This is ‘a’ measure of safety

You ask “Does the information “prove” the “thing” you are concerned about is managed in accordance with the requirements of your safety management system’

Can you see that a inspection of a particular area or object is about ensuring it is managed in accordance with the requirements of your safety management system’.

Can you see your contradiction?

and

Greg Smith – you ask/tell

” If you have a workplace accident you need to prove:

There was a “proper” system to manage the hazard(s) that gave rise to the accident; and There was “adequate” supervision to ensure you implemented the “proper system” and it was effective to manage the hazard(s).

Now considering you seem to think KPIs and audit and inspection cannot prove a “proper” system to manage the hazard(s) is working…can you tell us what we can use to prove such a topic?

Same with “adequate” supervision’…would not a lagging and leading indicator of the amount of visits and notes on what was talked about and what needs to be talked about be seen as a valid form of evidence???

These are all legitimate questions, but when they were published I was just about to start moving house. Having gotten into our new home, I thought I would try and expand on some of the concepts from the original post.

The observations I am trying to make are, hopefully, not complicated.

What I see is organisations doing a lot of “stuff” in the name of health and safety. They do audits, investigations, management inspections, complete checklists, review JHA’s, sign off permits etc., etc. they do all of these things.

But when you review major accident enquiries, or you read the transcript from prosecutions, or when your job is to defend companies who are charged with breaching safety and health legislation, what you find is all of the activity cannot be aggregated to show the company was managing the hazards.

There is never any evidence, or conversation, or commentary in the cases where the company is able to stand up and say:

“here is all of the activity we have been doing around health and safety, and this is what it tells us about how well we were managing the hazard and how well we manage safety in our organisation“

Let me give you an example based on working at height.

If you have a working at height incident – someone has fallen and died – we want to try and establish that you had a “proper” system to manage the risk of working at height and “adequate” supervision to know if the system was implemented and effective.

To understand if you have proper system, we look, for the most part, at your documented processes.

Were your standards, policies, procedures etc. consistent with industry practice, legislation, codes of practice, guidance material and so on? This is reasonably straightforward and in many cases those processes exist and are consistent with legal and industry expectations.

We then need to understand if the “proper” system was implemented and effective.

First, we want to understand this from an “incident specific” perspective. This means understanding whether the system was properly implemented at the time of the incident.

Were the people involved in the work properly trained to do the work? Was the relevant paperwork (JHA, take 5, any permits etc.) completed correctly? Was the work being done in accordance with any safe working procedures, safe work method statements or other process documents?

We will talk to any workers who were involved in the work. We will ask them about how they performed the work, what they understood about any hazards involved in the work, what they knew about the safety procedures,  and we will compare those conversations.

We will compare those conversations between workers. In other words, do all the workers have the same understanding about the hazards and how the work was meant to be done?

We will also compare those conversations with the processes. Was what the workers explained to us about the work, and the hazards, and how the work was going to be performed consistent with the JHA, the permit, the safe work method statement, the safe work procedure, or any other documented processes?

Unsurprisingly, after an incident, there are usually gaps. Most often, the paperwork is terrible.

However, problems in relation to the specific incident are not the end of the story.

Courts and Tribunals accept accidents happen. The law says it is not the job of the employer to ensure accidents never happen. That is why the test is one of “practicable“.

So, in the event of an incident where there are gaps in the way safety was managed on the specific incident, we want to try and establish the incident was a “one-off departure” from an otherwise effective safety management system. In other words we want to be able to prove to a Court or Tribunal that working at height was a hazard understood in our business and it was usually managed well and in accordance with our health and safety processes.

This is where the assurance problem begins.

In my experience, in almost every case I have ever been involved in, the company can point to all of the things it has done in the name of health and safety, all of the activities that I have already described in this article, but cannot point to anywhere where those activities have been aggregated together to tell a story about how well health and safety is managed. Moreover, they cannot point to anything where the relevant activity has been aggregated to tell a story about how well the specific hazard was managed – in this case working at height.

This means we have to try and build a picture about how well the hazard was managed based on the activity. This involves looking at previous incident reports, audits, work packs or documented information from other working at height activities, including permits, JHA’s and so on. It involves having conversations with other workers about working at height and how the hazard was managed, how they normally performed the work and what they understood about the hazard.

Typically, what we see is unhelpful.

The paperwork is completed poorly, incident investigations show repeat failings which have not been addressed, audits only look very superficially at a “documentation” level of the business and do not critically examine the way work is performed, checklist and inspection documents are “tick and flick” forms, and even where there is space for people to add comments, there are no comments and no real evidence about the effectiveness of the process.

Very often, the conversations with workers simply reinforce the failings and demonstrate the way people were performing work when the incident occurred was the way work was typically performed.

Rather than demonstrate the incident was a “one-off departure” from an effective system, the evidence reveals the incident was part of ongoing “systemic failure” of safety management and institutionalised non-compliance with the processes.

The upshot of all of this is, in my experience, health and safety “assurance” consists of a range of bureaucratic activities which do not give any worthwhile insight into whether hazards in the business are being managed.

As I tried to point out in my earlier post, this is a simple theory to test in your own business. Just pick a hazard and go and see what all the activity done in the name of health and safety tells you  about whether these is a “proper” system to manage the hazard and “adequate”  supervision to know if the system is implemented or effective.

As we approach the holidays, social media is abuzz with warnings about accident rates increasing in the lead up to the holidays. For managers who would like a peaceful holiday period, here is simple framework to test whether safety management works. This is also a great test for measuring personal due diligence.

Step 1: What concerns you?

What is the thing (or things) about health and safety keeping you awake at night? Is it electricity? Lifting operations? Working at height or dropped objects? Training and competence? Contractor safety management? Management of change? The ability of your workforce to identify and manage risk in their day-to-day tasks?

It doesn’t matter, pick one or two.

Step 2: Review the health and safety information you have received in the last three months.

Have a look at safety information, safety bulletins for example. Monthly reports. Minutes from safety meetings. Whatever health and safety information you have looked at in the last three months.

What does the information tell you about how well your organisation manages the “thing“?

Does the information “prove” the “thing” you are concerned about is managed in accordance with the requirements of your safety management system?

The following information does not count:

• Injury rate data;
• “lead” safety indicators or “positive” performance indicators that only measure “activity“. For example, number of site inspections done, number of hazard reports submitted, number of corrective actions closed out, and so on.

History is clear. None of this information “proves the effectiveness” of safety management.

The information must show the thing you are concerned about is being managed in accordance with the requirements of the safety management system, and it is working.

Do not worry if your health and safety information doesn’t show you health and safety management is working. Why should yours? No one else’s does.

You can always move on to step 3.

Step 3: Ask your safety manager.

Your safety manager is the person who handles your safety management system, right? They should be the person in your organisation who can tell you if safety management is working? They should be able to tell you if the thing you are concerned about is being managed in accordance with the requirements of the safety management system?

Your Chief Financial Officer can give you good insight into the financial position of your business?

Your Project Managers can tell you whether work is proceeding on time and budget?

What can you health and safety manager tell you?

What are you looking for?

There is a clear message when we look at major accident inquiries and safety prosecutions. Courts and tribunals are not interested in personal injury rates and lead indicators.

If you have a workplace accident you need to  prove:

1. There was a “proper” system to manage the hazard(s) that gave rise to the accident; and
2. There was “adequate” supervision to ensure you implemented the “proper system” and it was effective to manage the hazard(s).

 

KCGM v Hanekom involved a fatality on a mine site, and looks at the very interesting question of the extent of a Principal’s obligations when they impose safety obligations on a contractor. There is also the vexing question of what “liability” does a principal take on when they “approve” a contractor’s systems?

The original post is available HERE, and the updated video can be accessed below.

 

As part of my ongoing update of early video presentations, below is a presentation looking at the Western Australian Supreme Court decision in Capon v BHP.

You can also see the original post and associated links HERE.

As regular readers of my blog would know I have, in the past, used video presentations to explain the concepts about occupational safety and healthcare, and in particular video case studies to look at court cases dealing with occupational safety and health prosecutions.

I am in the process of updating the platform that I use for my paid, online training programs. As a result, I will also be moving the free videos I provide as part of this blog.

Over the next few months, I will be transitioning the videos from this blog onto YouTube and Vimeo, where they will still be available for free.

If you cannot find a video on this blog, please let me know and I will make it available, but if you’re patient, most of the videos will be republished in the next few months.

My first reposted video deals with the case Fry v Keating, which is a Western Australian Supreme Court decision looking at the liability of individual company directors for breaches of occupational safety and health legislation. The original text of the post as well as the video is below.

Directors conviction in relation to workplace fatality upheld

On 23 April 2013 , the Western Australian Supreme Court confirmed the conviction and increased the penalties of two Company directors charged in relation to a workplace fatality.  The charges against the Directors alleged “neglect” under section 55(1) of the Occupational Safety & Health Act 1984 (WA).

You can access a copy of the case at the following link:
Fry v Keating [2013] WASCA 109

or see a short presentation about the case below.

In August 2017, Dr Rob Long and I ran a due diligence program for a client in New Zealand. The program was really well received and we have decided to run a public program in Sydney on 1 & 2 November.

You can access details about the program at the link below, but if you have any questions or would like to discuss whether this program s suitable for you or your organisation, you can email me directly at gws@nexuslawyers.com.au

Due Diligence Workshop Nov 2017

 

This is a shout out to all of my contacts in Kalgoorlie.

I have had a few clients ask me if I could run a public program on supervisor obligations for health and safety in the WA mining industry, in Kalgoorlie. To be able to do this, I need minimum numbers to run the program, so if anybody thinks they might be interested in attending, or sending one or two people, please contact me directly and I will send you some information.

You can contact me by e-mail – gws@nexuslawyers.com.au

Best regards

 

I recently posted up information about my new program, Supervisor obligations for safety and health in the Western Australian Mining Industry.

If you are interested in having a look at the program, you can access one of the chapters for free below:

Chapter 5: The importance of supervision

If you would like to review the whole program, or talk about delivering the program in your organisation, please send me an email – gws@nexuslawyers.com.au