Directors-Employer's Safety Responsibilities

Presentation to C.E.O. / Directors-Employer’s Safety Responsibilities

For this presentation I am conscious I am not qualified to give legal advice, for that you need to turn to your legal team. I can only speak about my personal experiences with legal issues in safety.

In 2005 I did some work for a major metal manufacture who had an employee badly fracture his leg because of breaches of the Workplace Health & Safety Act. I remember a company director’s ashen face after the “Record of interview” with the Division of Workplace Health & Safety and his comment that “This was the worst experience of my life”

In most parts of Australia workplace accidents expose company directors and senior managers to potential prosecution under health & safety legislation. Prosecutions of individuals have been less common than company prosecutions, but authorities have increased their focus on individual accountability. No individual has gone to jail in Queensland yet but there have been companies and individuals fined.

Safety risks of assuming senior management positions can be minimised with a combination of due diligence and a good OHS system that ensures both the corporation and its senior employees comply with the legislation.

If you have an accident with a serious outcome OR the potential for a serious outcome exists OR you have a major breach of the Workplace Health & Safety Act you end up with a good chance of being called to appear in a regulatory body hearing (Record of interview with the Division of Workplace Health & Safety),magistrate’s Court or a Common Law hearing.

You will be perused mercilessly and they will try to prove you and your organisation are incompetent fools. If you do not have solid evidence to defend yourself with, you will look a fool. Every weakness in your defence will be explored. You will be hammered about why you did not identify best practice elsewhere and why you did not implement it.

The opposing parties will be advised by OHS professionals with much more expertise than your own safety staff. Unless you have a robust Safety Management System that you can prove works in the field you will end up looking like an idiot.

DOCUMENT DOCUMENT DOCUMENT Training records, maintenance records, disciplinary records etc. are often asked for in hearings. Have an assessment with all training you conduct.

The Buck Stops Where?

In accordance with the type of role they have, executive officers should take steps to ensure they do not breach safety legislation.

A board of directors should:

Require management to ensure that the company complies with its obligations.
Put in place a team with the skills and experience to deliver compliance
Demand the team has a plan that will ensure compliance
Review and approve the plan, expenditure, incident reports etc.
Continuously monitor performance against the plan, with regular reports.
Provide the team with sufficient resources to ensure compliance with the plan.

Practically, the board must ensure that:

Close attention is paid to contracts with senior managers and major contractors.
Safety compliance and performance is on each board meeting agenda.
It receives regular (monthly) reports--- reviews of progress against the plan. Expenditure, incident reports, etc.
Regular internal audits are conducted using approved methodology and up-to-date tools.
A separate (less regular) auditing process, independent of management, reports directly to the board.
Actions are followed up and ticked off, and included in subsequent reports

Senior managers or directors who actually work in the workplace are required to take a more direct approach to OHS management than a board of directors.

In the event on an accident, the authority will almost always interview the senior manager. The board may also require the manager to speak on behalf of the company in a record of interview. This immediately exposes any vulnerability in the manager’s industrial liability. It is crucial in these circumstances that senior managers have good knowledge of safety issues.

A senior manager must:

Ensure that the organisation complies with its obligations.
Recruit and manage a team with the skills and experience to deliver compliance, and keep the board informed of any changes to the team.
Take responsibility for developing a plan to ensure compliance, and oversee its implementation.
Review and approve the plan, and make recommendations to the board about the plan, expenditure and incident reporting.
Ensure performance is monitored against the plan by providing regular reports to the board. Senior management should personally present these so the board has an opportunity to query items.
Act as the central contact with the board to ensure sufficient resources for compliance.

There are 2 arms to employer liability in safety

1 Statute Law (Principally the Workplace Health & Safety Act in Qld)

2 Common law

1 Workplace Health & Safety Act

29 What obligations under section 28 include

Without limiting section 28, discharging on obligation under the section includes, having regard to the circumstances of any particular case, doing all of the following---

(a) Providing and maintaining a safe and healthy work environment;

(b) Providing and maintaining safe plant;

(d) Ensuring safe systems of work;

(e) Providing information instruction, training and supervision to ensure health and safety.

27A Managing exposure to risks

(1) To properly manage exposure to risks, a person must---

(a) Identify hazards; and

(b) Assess risks that may result because of the hazards; and

(d) Implement control measures; and

(e) Monitor and review the effectiveness of the measures.

(2) To properly manage exposure to risks, a person should consider the appropriateness of control measures in the following order---

(a) Eliminating the hazard or preventing the risk

(b) If eliminating the hazard or preventing the risk is not possible, minimising the risk by measures that must be considered in the following order---

(i) Substituting the hazard giving rise to the risk with a hazard giving rise to lesser risk;

(ii) Isolating the hazard giving rise to the risk from anyone who may be at risk;

(iii) Minimising the risk by engineering means;

(iv) Applying administrative measures;

(v) Using personal protective equipment.

Workplace Health and Safety Act 1995	Individual	Imprisonment	Corporation
Multiple Deaths	$150,000	3 Years	$750,000
Offences causing death or grievous bodily harm	$75,000	2 Years	$350,000
Exposure to substance likely to cause death or grievous bodily harm	$56,250	1 year	$281,250
Offences causing bodily harm	$56,250	1 Year	$281,250
Other Offences	$37,500	6 Months	$187,500

2 Common Law

Personal Liability

In the previous case, the employer is held liable for the negligence of another. However, the employer himself owes certain duties to his employees and he will be liable for any breach of those duties which results in injury to another employee.

There are four basic duties:

· To provide and maintain competent staff;

· To provide and maintain a safe place of work;

· To provide and maintain safe plant and appliances;

· To provide and maintain a safe system of work. (A system means generally the way things are done).

Strengths of X’s approach to health & safety management

Well run management safety committee

Effective departmental safety committees

Some developed Work Method Statements and Safety Management Plans .for construction work

Evidence of safety checklists, inspection sheets and some risk assessments happening

Effective & keen All Risks Officer

Generally relatively low risk work

Modern well maintained vehicle fleet

Generally positive, friendly workforce amenable to helping out

Training happening for basic skills

Seems to be a high awareness of the importance of safety in most areas

Well-Being initiative is a positive process

Manual Handling training is a step forward

Commitment to employing sufficient safety staff

Provision of personal protective equipment is appropriate

Evidence that the development of safe working procedures is commencing

Documentation for safety aspects seems reasonable

Operational Health & Safety Plans have been developed in the past

Test & Tag initiative is underway

Health & Safety Systems Audit in April 2004

Some tool-box talks are happening

Health & Safety Reps. have been appointed

A review of the provision of safety stats is currently underway

Opportunities for improvement in X’s approach to health & safety management

Need a comprehensive audit to a defined standard to guide Safety Management System development. In 2004 there was a safety systems audit.

Need a strategic OHS Management Plan-mission, values, goals objectives and how to achieve your objectives

Must have an effective Safety Management System-Compliance with A.S. 4801 is well regarded- S.M.S. must work in the field not just exist on a computer system

Although there are some good aspects to it Y as it exists on the computer systems does not meet the requirements for a Safety Management System as outlined in A.S. 4801 and industry best-practice. Some senior personnel spoken to have no knowledge of Y being implemented in the council.

If I was the C.E.O. or a Director of the X I would be quite concerned about the current state of the Safety Management System

How Senior Management Team Can Demonstrate Safety Due Diligence

"A health & safety problem can be described by statistics but cannot be understood by statistics. It can only be understood by knowing and feeling the pain, anguish, and depression and shattered hopes of the victim and of wives, husbands, parents, children, grandparents and friends, and the hope, struggle and triumph of recovery and rehabilitation in a world often unsympathetic, ignorant, unfriendly and unsupportive, only those with close experience of life altering personal damage have this understanding."

SAFETY BENCHMARKING

Over a 14 month period in 1994 -Five BHP Minerals carried out an extensive international safety benchmarking exercise with “best in safety class” companies throughout the world. Twenty-five locations throughout the world participated in the study. An approximate 100 page report on findings is available should anyone wish to refer to it

The following were recurring themes in the world’s best safety performers.

1. Executive management provides the impetus for safety performance. This means that senior management is not only committed to and supports safety, but that it insists on safety performance in a manner that is clearly understood and echoed at all levels.

2. Management focus is a key to quality safety performance.

3. Existence of a company-wide framework or systematic, standardised approach to safety. The approach has performance standards that receive regular internal and external audits

4. Objectives are set and organisations work towards set targets for implementation of the objectives.

5. Safety pers