OHS due diligence and safety management

In the February 2010 newsletter for Australian law firm, DLAPhillips Fox, Andrew Ball and Donna Trembath wrote about one of the important elements of the model Work, Health & Safety Act – due diligence.   We look at how SafetyAtWorkBlog and other OHS information services can support due diligence on OHS matters.

Ball and Trembath list 6 elements in the definition of due diligence (in bold):

Acquire and have up to date knowledge of work OHS matters.

This first element is where business and OHS information sources are going to be crucial supporters.  OHS law in Australia has always supported the need for companies and safety professionals to maintain a current state of knowledge.  There have always been newsletters on OHS issues but it is very easy to fall into a habit of reading only the information that will assist one in their job rather than getting information that relates to safety throughout a workplace.  The use of Health & Safety representatives or OHS Committees can be important in maintaining a “corporate” state of knowledge.  Delegation of reading information can be very useful and HSRs and OHS Committees are probably the most neglected preventative tools in the safety professionals toolbox.

The internet has provided a range of new OHS information sources.  Sadly it has also provided a large number of sites that duplicate each other and do not state the source of the information so it is hard to determine the veracity.

Understand the nature of the operations of the business and the hazards and risks associated with it.

This is much more time-consuming than it sounds, if taken seriously.  Some corporations pay lip-service to this by having a CEO walkround each of the operational worksites.  In many cases this is for show.

“Understanding the nature” of anything takes time, patience and an open mind.  It is reminiscent of the advice provided by Atticus Finch to Scout in “To Kill A Mockingbird” – “you never really know a man until you stand in his shoes and walk around in them”.  So it is with companies.  One needs to talk, watch and listen to people throughout an organisation.  CEOs, executives and managers need to consult, participate and share to understand their company.  In itself this could be a full-time job.

Ensure that the business uses appropriate resources and processes to identify and control or eliminate hazards associated with the operations of the business.

This can be messy as what is meant by “appropriate”?  In the short-term, guidance from the local OHS authority on hazard identification and control should be used and form the basis of a research library for the company.

Another risk is that many companies allow this process to be complicated by including too many people in the process.  Such a process needs to be inclusive but should not be cumbersome.  Information and opinion can be brought to the discussion without bloating a committee with inactive members.  By building consultation into the hazard process, the amount of information at the table can be much grater than the number of participants.  Delegation here too will be very useful.

Also, do not look too far ahead.  Focus on the task and hazard at hand but always with the aim of eliminating the hazard.  If hazards become integrated into a production system instead of eliminated, it can be very hard for anyone to see alternative and safer ways of doing things.

Ensure that the business has appropriate processes for receiving and considering information on incidents, hazards and risks and responding in a timely way to that information.

This element not only refers to the information itself but also the delivery process.  With electronic information sources this has never been easier – RSS feeds, email bulletins, weblogs, tweets etc.  Gone are, or should be, the days when a safety magazine with a circulation tag sits on the desk of someone who is on annual leave.

The risk here is that it is easy to act before giving the matter sufficient consideration.  Regularly, information is forwarded on from safety colleagues that is clearly false and unsubstantiated.  A few minutes deliberation and research can provide strong recommendations and stop one looking like a reactive ill-informed fool.

Also the electronic safety information, however it is received and in what format, should be treated as a library of information.  Too many companies have eliminated libraries altogether instead of bringing the library into the digital age.  Intranets are excellent ways of building a searchable knowledge repository that is accessible to all workers.

Ensure that the body has, and implements, processes for complying with any duty or obligation of the body under the Act (this might include the obligation to notify incidents, consult with workers, etc).

Someone, often a safety professional but also a human resource officers and sometimes a part-time paymaster, must be very familiar with the relevant sections of the OHS legislation.  Although many elements of due diligence and safety management can be delegated there has to be a safety “spider at the centre of the web”, a coordinator, a decision-maker.  Information and action cycles through this point in the system in loops of continuous improvement.

In the past risk assessment processes have often looped out to continuous improvement from hazard to control to new hazard etc.  Insufficient attention has been given the continuous improvement of the information available for better decision and that often comes from outside the workplace.  This point ties in with the maintaining a state of knowledge mentioned above.  Good information is also available from outside one’s workplace, experience or industry.

Have in place a system for verifying compliance with the business’ safety obligations.

Auditing is becoming a more popular compliance tool in all sizes of business but they can also be very disruptive and expensive.  Unless external auditing is required, internal auditing can be very effective as long as the audit role is taken seriously by everyone involved and the auditor is suitably trained.

The presentation of hazards to senior managers in terms of non-compliance reports can be very effective and often more readily understood by senior managers and chief financial officers, as these reports fit their understanding.  Time should not be wasted trying to explain safety processes to someone who has always been an accountant.  It is better to present hazards and non-compliances in terms the accountant understands.

When the new OHS law regime is introduced there are bound to be people taking advantage of the opportunity presented by “due diligence” being discussed as a “new” requirement under OHS law.  For over twenty years OHS laws have been talking about a “safe system of work” and a safety management system.  Most companies that have taken their OHS obligations seriously over that time will already be applying due diligence to the way they operate.  In these companies, the new legislation should be fairly familiar.  In companies that have been managing on luck, the Federal and State governments are likely to boost their inspectorates in order to support the legislation and due diligence is likely to have a big impact on the way they do business.

Kevin Jones

6 thoughts on “OHS due diligence and safety management”

  1. Great article and one of the reasons I keep coming back here Kevin – because it isn\’t one of the \”large number of sites that duplicate each other and do not state the source of the information so it is hard to determine the veracity\”. And as the Atticus Finch quote is already in the public domain I shall shamelessly steal it and use it for my own ends henceforth.

    Re enforcement, this is really the rub when it comes to national harmonisation. It\’s all very well for the laws to be the same, but if the legs aren\’t on the ground and the oversight isn\’t there then changed behaviour won\’t come (national insurers who focus on carpal tunnels and return to work rates don\’t fill me with confidence when it comes to regulating high-risk construction contractors & the like.) Conversely the jury\’s still out as to whether some state-based authorities that are seen by employers as excessively militant will moderate their approach.

    1. Ross

      Tell your friends and maybe I can get a paying gig 🙂 Thanks for the kind words.

      On the issue of harmonisation, I will give a nod to the Minister in whose portfolio the OHS process sits, Julia Gillard. By and large, her portfolios have managed to avoid lasting controversy and I think this reflects her skills. Industrial relations reforms are done and OHS is halfway through.

      As was said over a year ago, the harmonisation of OHS laws was a dry run in many ways for the harmonisation of workers compensation. The current hoo-hah in South Australia is just one State out of many and one that is traditionally not very militant.

      Kevin

  2. I refer to my BLOWING IN THE WIND comment in another blog. You may as well be writing in Swahili by far the greatest majority of businesses would read the first part of the first paragraph and the reaction would be of horror followed by the question – how much is this going to cost me?

    Safety culture in business (in the greater majority of cases) is not driven by the need to ensure that your workforce is fully protected against all reasonable risk to life, limb and general health but near enough is good enough provided I can get away with not spending too much and if I profess to be a little smarter than the average bear, then I can bluster my way through it with a pile of documents that try to place all of the responsibility and care on the worker.

    This is the reality, have a look at larger organisations who employ specialist OH&S managers and pay very close attention to the resources provided and staff turnover it is a real eye opener.

    If the legislation is in place, enforce it rigorously without fear or favor. The SA legislation has been in place since 1986 so there is no excuse for not knowing your obligations and complying, this goes for all parties including workers who have their own set of obligations to their employer and fellow employees.

    I wonder how many forests have been consumed writing about this why not send the whole damned lot out to the private market place with the only involvement of government being an oversight statutory authority to ensure legislation is complied with and workers interests protected. Competition will certainly regulate any unfunded liability because it disappears from government and becomes a matter for the insurance companies to control. With this in mind, I am sure those companies would be providing employers with premium incentives to reduce claims ??? all in all a good thing and with claims management having the scrutiny of fairness by an independent body things could be good.

    It does not have to be all that difficult.

    1. Tony

      I agree with many of your sentiments and if you have the time to look through some of my previous SafetyAtWorkBlog articles you will note that I believe that the inclusion of \”as far as is reasonably practicable\” in OHS legislation is a major impediment to managing safety in the real world. The concept allows for flexibility in hazard control but does not provide the certainty that most employees need to feel that their safety is being managed seriously.

      I also pounce on any hint that a worker is being unfairly blamed for workplace incidents. My professional life has evolved in an era where OHS is about a \”safe system of work\” in which the employee\’s actions are part, just as much as is the decision-making of the employer.

      I don\’t think improving the system need be difficult but it will take an exemplary politician to cut through the competing interests in workers compensation to achieve a system, State or National, that most stakeholders will accept, let alone one they like. There are few politicians who would welcome this challenge and there are even less who are competent to achieve the necessary degree of change.

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