Tag: Prosecution

Process or Outcome?

~ My safety thoughts ~ 2 Comments

Today I was reading a LinkedIn post lamenting the state of health and safety management, evidenced by too many “safety stickers” on a piece of machinery.

A commenter noted that the situation was “absolute madness“, which doesn’t keep anyone safe. Much of the conversation from there was focused on whose “fault” it was and we ended up with all of the usual suspects in the firing line – insurers, lawyers, consultants and so on. Probably quite justified too.

To my mind, this issue illustrates the disconnect apparent in health and safety management between “process” and “outcome“. It seems to me that health and safety management is obsessed with process – the way that we “do” safety. This obsession means that every few years somebody reinvents the way we do safety, or the way we do parts of safety. As evidence of this you only need to think of the transition from safety culture, to safety 1, through to safety 2 and now safety differently – with god only knows what in between. On a micro level, just think how many iterations of the JHA you have seen during your working career.

What makes this more interesting is the process doesn’t really matter. How you “do” safety is not really an issue. What is important is whether you can show your process achieves the outcome it was designed for.

The table below lists a series of cases looking at the “outcome” of understanding hazards. The “processes” were all different: documented, undocumented, buddy systems, on-the-job training and so on. But even where the processes were the same this did not determine the decision – the decision was determined on whether the outcome, and understanding of hazards and risks, was achieved.

Process v outcome

So, the question is not how fancy, new or shiny your process is. The question is whether it achieves the outcome.

What are our obligations to careless workers?

~ My safety thoughts ~ 2 Comments

When you survey the range of safety commentary online, it is hard to escape the view that workplace health and safety is still primarily concerned with the behaviour of individual workers, and incidents are the consequence of careless individuals.

In my experience, this thinking does not align with any credible safety management theory, and it is not consistent with an organisation’s obligations under health and safety legislation. At its simplest, a worker’s individual carelessness makes no difference to the obligations of their employer, other organisations or other individuals under health and safety legislation.

The fact that a careless, individual worker did not meet their obligations under health and safety legislation, is no answer to the question of whether you met yours.

In the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28 (read decision) the Court canvassed the issue of careless and disobedient workers in detail.

By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate an instrument a load cell which measured the weight of ore in the flask.

The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

While Mr Pollard was working, the weights and basket fell out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.

The Court said:

In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers.[my emphasis added]

Drawing on precedent cases, the Court made several observations:

  • Health and safety legislation is designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry:

The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable…

  • “Foreseeability” is relevant, and it is not generally practicable to take measures to guard against a “detriment to safety” that was not reasonably foreseeable:

It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

  • If there is a foreseeable risk of injury arising from the employee’s negligence while working then the employer must take this into account.
  • The extent and standard of training an employer must give will depend upon the nature of, and circumstances under which, work is performed. It is not always necessary to have classroom-based instruction or work manuals. However, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training.
  • It is not enough to simply give employees instructions about health and safety “an employer must also ensure that those instructions are carried out”.
  • But, when an employer has established and implemented a proper system, then this can be an answer to the conduct of individual workers:

Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety.

In the PBHL case, the Court rejected any argument that carelessness by individual workers limited PBHL’s liability:

I do not see any scope for the application of a principle in this case that would limit the defendant’s liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA.

Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not. [my emphasis added]

The Court found procedures and instructions for the work were incomplete and workers were directed to start work when the JSA process was deficient and the JSA document was inadequate. The employer should have known both those things.

A common misconception is that safety prosecutions are all about identifying “fault” – who was at fault, or most at fault, when an accident occurred. This is not the case.

Employees who breach known safety procedures may be at “fault”. Indeed, individual workers and supervisors are prosecuted following workplace accidents. But an employees fault is no answer to the question, “did the employer meet their obligations under health and safety legislation?”.

The fact an employee breached safety procedures – even procedures they were aware of, does not prove an employer provided adequate training and supervision, nor does it prove an employer diligently enforced its systems of work.

When is a person conducting a business or undertaking?

~ My safety thoughts ~ 1 Comment

A recent NSW District Court decision, Inspector Nash v Perilya Limited [2018] NSWDC 29 (read decision), looks at the interesting question of when a person is conducting a business or undertaking.

On 28 February 2018, Perilya Broken Hill Limited (PBHL) was convicted of charges under the Work Health and Safety Act 2011 (NSW) (Act). PBHL was a wholly owned subsidiary of Perilya Limited (Perilya), and Perilya was also charged with offences under the Act, arising from the same incident.

Perilya argued it was not conducting a business or undertaking in the operation of the mine.

In the end, the Court found Perilya was not a Person Conducting a Business or Undertaking (PCBU) under the Act.

The prosecution had argued several matters in support of their position, including;

  • Perilya published documents pronouncing that it owned and operated the mine.
  • The HSE Management System Overview was published in the name of Perilya and recorded that the Perilya Board had a role to ensure that effective and appropriate systems were in place to ensure safety controls were adequate.
  • Perilya’s Board received HSE reports in relation to the operation of the mine.
  • Employees of PBHL reported to the Board of Perilya about HSE at the Mine.

Relevantly, Perilya underwent significant changes in 2008, because of the Global Financial Crisis. This included:

  • Downsizing its Perth office from 40 people to 8.
  • Establishing PBHL as a standalone business as Perilya had no staff to provide support services.
  • Disbanding the HSE board subcommittee, after which Perilya did not have any committee dealing with health and safety, either in its own operations or any of the entities it owned.
  • The PBHL board had responsibility for HSE, including developing its own policies and procedures.
  • The Perilya board was responsible for oversight functions, rather than hands-on management and had no day-to-day involvement in the activities of PBHL.

After the downsizing the only operating asset was PBHL and it was made a standalone business unit.  It had the necessary people, facilities, capability and assets to conduct business activities without support from a corporate office.

The Court noted Perilya:

 … could have controlled everything that happened at [PBHL] but did not have the resources to.

With respect to HSE reporting, the Court said:

The Perilya board considered HSE reports, but did not make any decision on them. The HSE reports considered by the Board were the consolidated group reports rather than the individual reports from the subsidiaries. To comply with its disclosure and reporting obligations, Perilya would need to keep abreast of matters that could affect its share value, financial position or reputation. HSE would fall within that. It was by reason of Perilya’s disclosure obligations that it received reports.

And

The Perilya Board received a budget from PBHL annually or more frequently. The budget had an impact on Perilya. Likewise, for reasons of disclosure and reporting, Perilya necessarily had to receive this information.

In the end, the Court looked at the practical application of the relationship between PBHL and Perilya. The Court recognised it did not matter that Perilya could have chosen to take over and run the mine.  Being able to take over and run the mine because it was the sole shareholder of PBHL did not make Perilya a PCBU, rather:

It is what was happening in practice that is important

In practice, with only eight staff in Perth, it was impractical for Perilya to be involved in the operation of the mine, and day-to-day management of the mine was in the hands of PBHL.  The Court also said PBHL could change the HSE system without referring to Perilya.

This is not a case of Perilya transferring its duty to another. Nor is it a case of an agreement or arrangement purporting to limit its capacity to influence and control the matter in respect of which it had a duty. This is a case of Perilya ceasing to have control of the mine and its operations. Control must be more than a legal right to control otherwise every parent company with a 100% shareholding of a subsidiary would be, without more, under a duty under s19.

The Perilya decision shows that a close relationship between corporate entities is not enough to make either of them a PCBU.  What must be established is that an entity was conducting a business or undertaking, and in each case, this requires an examination of the relationship between the entities and their role in the relevant business or undertaking.

Due Diligence prosecutions under WHS Legislation (and other fairy stories)

~ My safety thoughts ~ 3 Comments

Due diligence was supposed to be the health and safety “boogie man“, hiding under the beds of boards and CEOs – keeping them awake at night and focusing their minds on health and safety. The truth is the due diligence provisions in WHS legislation have made no practical change to the legal regulation of health and safety management at an executive level (whatever their theoretical legal effect might be) and continue the long-running lack of interest in health and safety at a boardroom level that Australian regulators have evidenced for years.

I am happy to be corrected on numbers, but as far as I can tell, since introduction of WHS legislation in about January 2012, there have been 819 workplace fatalities according to Safe Work Australia’s figures. I do not know how many of those resulted in prosecutions – it is extraordinarily difficult to draw the disparate data of health and safety regulators together to create a meaningful picture. But what does seem fairly clear, is that there have only been a handful of prosecutions under the due diligence provisions of WHS legislation. Moreover, every one of those has been against a small business and the person prosecuted has some hands-on, day-to-day involvement with the work being performed. There is no example as far as I can tell of a “company officer” who is removed from the day-to-day operations of the business.

Presumably, all of the boards and chief executive officers of large organisations who have suffered workplace fatalities are exercising effective due diligence. I think it is far more likely that the question has not even been asked and this level of executive management has not been subject to any scrutiny whatsoever about their oversight of health and safety management. Again, I stand to be corrected.

None of this should come as a surprise to anybody who has an understanding of health and safety prosecutions in Australia over the years. Nearly every example of “management” prosecutions have been against managers of small businesses with day to day involvement in the operations of the business.

A 2005 paper by Neil Foster found:

In cases involving formally appointed directors, almost every case involved a director who was heavily involved in decisions or actions “on the ground” which led directly to the incident concern (page 114).

and

Almost all the companies concerned (as far as can be judged from the reports examined) were either effectively “one-person” companies or at least small family companies with limited assets. … The directors concerned were almost all likely to have high personal knowledge of workplace procedures and, as noted above, many were heavily involved in the particular incident concern. There are no examples in these cases of a large company where a member of the board was held liable for failure to exercise “due diligence” in addressing the issue of safety (page 116).

(Personal Liability of Company Officers for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), (2005) 18 Australian Journal of Labour Law, 106)

Nothing, it seems has changed.

Employee prosecuted for workplace fall

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In a recent Western Australian prosecution, the operations manager of a roofing company was prosecuted and fined $7,500.00 after a worker fell about 5 metres, through a skylight.

The worker suffered serious injuries, and was lucky not to be killed.

The operations manager, Charles Farmer, was prosecuted under section 20(1)(b) of the Occupational safety and Health Act, as an employee who “failed to take reasonable care to avoid adversely affecting the safety or health of any other person through any act or omission at work, and by that failure caused serious harm to a person“.

According to the prosecution summary, although Mr Farmer had identified the skylights on the existing portal frame roof, he did not ensure that a safe working procedure was in place that required the workers to use a fall injury prevention system.

You can access the prosecution summary HERE.

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