How to maintain a safe workplace and minimise legal liability
By Alena Titterton, Clyde & Co partner
Monday, 20 November, 2017
Employers are reminded to remain proactive about workplace safety, after National Safe Work month has concluded for another year.
Clyde & Co has reiterated the importance of thinking about safety before there is an incident, rather than considering it after the fact.
"The Workplace Health & Safety (WHS) laws have been in place for over five years in a number of jurisdictions around Australia. If your organisation has not attended to the following activities in the last two years, it is time to take action to minimise legal liability," said Clyde & Co partner Alena Titterton.
Firstly, organisations should have organised a due diligence refresher briefing for the board and executive team and review the adequacy of corporate governance frameworks for health and safety.
Secondly, organisations should have conducted a WHS legal compliance audit of the organisation's operations, and closed out any gaps that may have arisen through such an audit.
And lastly, organisations should have reviewed their incident response and investigation protocols to ensure they capture incident notification and site preservation legal requirements across the jurisdictions, as well as strategies to respond to the increasing use of general criminal law processes in fatalities.
Clyde & Co's free and easy-to-use app, ClydeCovered, can identify whether an incident is notifiable or not. Employers should update their investigations approach to consider positive methodologies beyond traditional investigation techniques.
According to Titterton, these are the five main mistakes employers in Australia make when it comes to workplace safety:
- Thinking that safety people 'do' safety: Common themes emerge within every prosecution for health and safety duty of care offences around Australia. Every prosecution represents failures in effectively implementing some aspect of the safety risk management process (or its entirety). Indoctrinating a proactive safety risk management culture throughout an organisation is fundamental.
- Failing to effectively manage change: As part of a proactive safety risk management approach, organisations need to understand when circumstances have changed and revisit their assumptions around whether their systems and control measures are still effective. Many organisations will charge ahead without thinking through safety ramifications of strategic changes, reacting when it is too late. A failure to appreciate and plan for change is a consistent aspect of the story told in a significant number of serious incidents.
- Failing to proactively manage how their operations interact with others: Sophisticated organisations have systems to manage their own operations; however, significant risk often arises where operations overlap with others. Failing to proactively manage who is responsible for what in the area of overlap leads to misunderstandings and often gaps between systems, leading to incidents. Understanding areas of operations where multiple parties intersect and how is an important precursor to implementing strategies to manage the overlap.
- Not enough time spent exploring success: There are many days without incident but typically investigations only happen when serious incidents occur. This means that the majority of conversations around safety are negative ones. Organisations should spend more time learning from success when things do not go wrong. This can lead to greater engagement and understanding around what really works for safe outcomes in practice.
- Thinking that compliance equals bureaucracy: Conversations in the safety profession in Australia at the moment seem to pit the concepts of practical safety management and legal compliance against one another. In reality, they are not mutually exclusive concepts. Achieving legal compliance is something that can be managed in the background as part of the process of collaborating with workers in developing more streamlined and practical health and safety management systems.
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