Tag: WHS

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.

Welcome to the intellectual vacuum that is political comment on WHS

~ My safety thoughts ~ 7 Comments

Today (29 October 2016) the ABC had an article on the ongoing coverage of the tragic loss of lives at Dreamworld in Queensland.

I have commented before about the disconnect between the loss of life in this workplace accident and the near weekly loss of life in Australian workplaces that the coverage of this incident highlights. That disconnect was underscored by a picture of the Federal Opposition Leader, Bill Shorten, laying flowers outside Dreamworld. I do not begrudge Mr Shorten the opportunity to express his condolences (or advance his political position depending on your level of cynicism), but I cannot recall too many times political leaders have given similar public displays of solidarity when people die at our construction, mining, agricultural or any other workplaces.

But what has prompted this article is the simplistic, reactive, leaderless response that politicians trot out in the face of these types of events.

The ABC Article reports Queensland Premier Annastacia Palaszczuk as saying:

“It is simply not enough for us to be compliant with our current laws, we need to be sure our laws keep pace with international research and new technologies,”

“The audit will also consider whether existing penalties are sufficient to act as deterrents, and whether these should be strengthened to contain provisions relating to gross negligence causing death.

“Because we all know how important workplace safety is and how important it is to have strong deterrents.

“That’s why Queensland has the best record in Australia at prosecuting employers for negligence – and we are now examining current regulations to see if there are any further measures we can take to discourage unsafe practices.”

The idea that we “should not be compliant with our current laws” is both a nonsense and a failure of policy makers to properly accept the findings of the Robens Report published in the mid-1970’s. The reason our laws cannot keep pace with “international research and new technologies”, is because governments continue to insist on producing highly prescriptive suites of regulation which in most cases are adopted by organisations as the benchmark for “reasonably practicable”.

For most businesses, particularly small and medium-sized businesses, technical compliance with regulation is the high-water mark of safety management – an approach reinforced by the “checkbox” compliance mentality of many regulators.

WHS legislation is a leading example of this failure of policy, in so far as it increased the number of regulations in most of the jurisdictions where it has been implemented.

Flexible, innovative safety management requires a regulatory framework that promotes it, not limits or discourages it.  How can a regulator have any credibility when it calls on industry to keep pace with “international research”, when it continues to define safety performance through the publication of lost time and other lag injury rates?

Ms Palaszczuk then adopts the standard “tough on safety” call to arms, without taking the time to recognise inherent contradictions in what she is saying. She boasts that “Queensland has the best record in Australia at prosecuting employers for negligence”, but hints at tougher penalties still.

If the considerable penalties under the WHS Legislation and the “best record” of prosecuting employers are not a sufficient deterrent, why would “tougher” and “better” be any different?

I have written about these types of matters before, and would just ask that before policymakers go charging off in pursuit of higher penalties and more prosecutions, we stop and take the time to see if this tragedy can provide the opportunity lost during harmonisation and introduction of WHS legislation.

That lost opportunity was a chance to stop and consider the way that we regulate and manage health and safety in this country.

And can we start with the question of whether criminalising health and safety breaches and managing safety through a culture of fear driven by high fines and penalties is the best way to achieve the safety outcomes we want?

What is the evidence proving high penalties and prosecutions improve safety outcomes?

Are there ways that we can regulate safety to provide significant deterrents and consequences for people who disregard health and safety in the workplace, but at the same time foster a culture of openness, sharing and a willingness to learn and improve?

Can we redirect the time, money, expertise and resources that are poured into enforcement, prosecution and defending legal proceedings in a way that adds genuine value as opposed to headline value?

This is a chance to stop and think. This is a chance for the health and safety industry to stand up, intervene and take a leadership role in health and safety.

If we do not, the intellectual vacuum will continue to be filled by the historical approaches that have brought us to where we are today.

Contractor Safety Management: Waco Kwikform Ltd v Perigo

~ My safety thoughts ~ 1 Comment

A recent NSW Court of Appeal decision has examined the very interesting (and vexed ) issue of how the actions of a Principal can create liability, by taking over responsibility for a Contractor’s safety system of work.

In Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140, the Court found, in part, that by developing a Safety Work Method Statement, Waco had taken primary responsibility for the safe system of work out of the contractor’s hands.

You can see a video presentation about the case by clicking here.

And apologies, but there has been a little bit of a glitch in the sound quality – there is sound but you might need to turn it up.

I also need to let you know that there is a new app available to make watching these video updates easier. You can find it by clicking here.

The app will allow you to watch the presentation, or download it so you can watch it offline later.

Best Regards.

Legislation changes in Queensland

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A number of changes to Queensland Work Health and Safety laws (WHS) took effect from 16 May 2014.

The changes impact health and safety representatives, right of entry permits, electrical safety and a range of other health and safety obligation.

Information about the changes are described on Queensland’s Workplace health and safety website, which you can access here.

If you want to look at the specific changes in the context of the legislation, we have set up a Lawstream database that will show the affected legislation.

You can access the database at:

www.lawstream.com.au (click on “client” under the login tab to access)

Username:          Qld WHS

Password:           password

Changes to the Work Health and Safety Act 2011 are available now, and further, amended legislation will be uploaded soon.

To review the changes, navigate to the relevant section and click on the “updates” tab.

The sections of the Work Health and Safety Act 2011that have been affected are:

Section 68;

Section 71;

Section 74;

Section 82;

Section 83;

Section 85;

Section 86;

Section 119;

Section 122;

Section 123;

Section 143A;

Section 274;

Part 16, Division 3, sections 307 – 309;

Schedule 2A items 9 and 112.