Many companies assume having the right policies and paperwork will result in a compliant and safe working environment. Unfortunately that’s not the case.
If you’re in high risk work you should have all the paperwork down pat: golden safety rules, toolbox meetings, risk assessments, take 5’s, Safe Work Method Statements, your Work Health Safety Management Plan… the list goes on.
What are some key elements required to convert policies and procedures to a safe workplace?
From where I sit across the legal and practical sides of this area, the key themes reflected across the board are:
- systems; and
Creating a safe workplace starts at the top. It requires leaders to promote safe systems of work and ensure compliance.
Safety regulators have long had the power to prosecute officers for safety breaches. The power to prosecute senior officers is now amped up by Industrial Manslaughter laws in Queensland, Victoria, the Northern Territory and the ACT (individuals in all jurisdictions can be charged with manslaughter under the criminal codes).
As part of the push for leadership accountability, Safe Work Australia said last year:
As an officer, you have a duty under WHS laws to look for ways to lead on WHS matters.
“Officer” under the Model WHS laws is broader than a company officer (director, secretary etc.). You should assume that if you make or influence the significant financial or operational decisions for a business a regulator can make a case that you’re an officer who holds the associated legal duties under WHS legislation.
Officers must exercise due diligence to ensure their entity (a person conducting a business or undertaking, or PCBU) complies with their WHS duties.
Managers and officers must also “walk the talk”.
- A construction manager who promotes fatigue management on one hand but requires workers to pull 18 hour shifts on the other does not demonstrate leadership and invites criticism from a regulator.
- A foreman who identifies a safety breach should do more than just direct the worker to stop. They should direct the worker on how to perform work safely, even if it seems obvious.
💡 What should leaders do?
- Consider and identify the officers who hold additional duties under WHS law, and the senior officers who are exposed to prosecution under the industrial manslaughter provisions.
- Make leadership synonymous with safety. Train officers and senior officers on their duties and liabilities under the relevant WHS legislation.
- Walk the talk.
An officer has a duty to exercise due diligence to ensure their PCBU complies with its duties. This creates a duty for that officer in relation to each of those PCBU duties.
This may seem daunting, but a good starting point is understanding the PCBU’s duty to ensure it provides and maintains a safe system of work.
This duty is a common focus for regulators when they investigate the cause of a safety incident and the culpability of officers and other individuals.
For example, regulators will crack down on:
- A director who elects to use a cheaper safety system rather than an industry standard system.
- A WHS Manager responsible for making safety decisions who doesn’t implement a system recommended in a relevant safety code of practice.
The first conviction in Australia under the industrial manslaughter laws in June 2020 was an extreme example of a failure to provide and maintain a safe system of work. Two Queensland Directors were handed suspended sentences for failing to implement any safety systems for mobile plant, which led to the death of a forklift driver.
The duty to provide and maintain a safe system of work is purposefully broad and does not define “system”.
It is clear from the range of enforcement options the regulators exercise (from prosecutions to improvement notices) that “system” means more than paperwork. It can be conceptualised as the hierarchy of controls, of which paperwork (or administrative controls) is one small part.
Providing and maintaining a safe system of work also means more than just reacting to safety incidents i.e. waiting until they arise. It means proactively looking for safety risks and ensuring a system in place to manage those risks before they create an incident or near miss.
For bigger businesses, relying on safety advisors is one way to exercise due diligence, but it’s not a get out of jail free card – literally or figuratively.
💡 What should leaders do?
- Ensure your officers are aware of the breadth of their WHS duties.
- A good focal point is ensuring officers understand the duty to provide and maintain a safe system of work, which goes far beyond making sure the company’s paperwork is in order.
Understanding the WHS duties, the safety risks particular to your business and how to control them is half the battle. The other half is ensuring workers (including other leaders) comply with those controls.
To state the obvious, policies and procedures will only manage risk to the extent workers are trained in and follow them.
Compliance requires training, promotion and consistent discipline.
A business that misses one of these three pillars when implementing their WHS systems may expose itself to a safety breach. It may also expose itself to an employment claim if it dismisses an employee for a safety breach.
An effective way to create a safety culture can be to train and promote golden safety rules and a zero tolerance approach to breach. This will only be effective if the business backs up the golden safety rules with the right training, promotion and systems to allow compliance and then acts consistently with a “zero tolerance approach”.
For example, take a rigging supervisor who promotes a zero-tolerance approach to safety breaches while working at heights. They ignore an employee’s breach twice, then dismisses them for the third. The supervisor has exposed the company to:
- criticism (at least) by a safety regulator; and
- an unfair dismissal claim by the employee.
💡 What should leaders do?
- Ensure WHS systems are backed by training, promotion and discipline.
- Consistency in compliance is key from a safety and employment law point of view.
Training for officers & managers
Thinking about WHS in this way can help leaders understand what they must do to comply with their safety duties.
To find out more email Richard.firstname.lastname@example.org.
NB: This article provides general guidance for companies and individuals in the Model WHS Law jurisdictions (all States and Territories except Victoria and WA) but it does not constitute legal advice. Seek legal advice before putting a plan into action.