Australia: Cabbage Salad and Safety: Episode 2 - Who is Responsible for Workplace Safety

Cabbage Salad and Safety is a series of podcasts based around conversations with Siobhan Flores-Walsh, a work health and safety lawyer with Corrs Chambers Westgarth, and Kevin Jones, a workplace safety consultant and editor of the award-winning SafetyAtWorkBlog. Each episode will focus on one or two safety topics.

Episode two features a stark comparison of legal and non-legal views about responsibility for safety and exposes the limitations of both approaches. The discussion demonstrates the very different mechanics of the safety consultant's mind and the lawyer's mind and considers what this means for compliance.

We welcome enquiries and comments about the Cabbage Salad and Safety podcast, so please send them to Siobhan or Kevin.

These podcasts do not provide legal or other advice. Obtain legal or other professional advice as required.

TEXT VERSION

Podcast – Cabbage Salad and Safety

Episode Two - Who is Responsible for Workplace Safety?

Conversation between:

Siobhan Flores-Walsh (Workplace Health & Safety Lawyer) and Kevin Jones (Safety Journalist)

PART 1

Kevin: Hi it's Kevin Jones and Siobhan Flores-Walsh you're on the second episode of Cabbage Salad and Safety. Siobhan how are you doing?

Siobhan: I am doing well Kevin how are you?

Kevin: I'm very well very well. Prior to turning the microphone on we were getting into a good discussion on whose responsibility it is for Workplace Safety. We have taken deep breaths, we have stared at each other, and thought, we better start talking about this.

Siobhan: Right.

Kevin: For real. I will ask an individual question of a lawyer who is responsible for Workplace Safety?

Siobhan: Well I think that that question can be answered in terms of what our legislation says. So our legislation is very clear about particular duty holders being responsible for particular aspects of safety in the workplace. But I think even lawyers think other than - you know through a legal prism if you like and I think there is a whole ethical question about who's responsible for safety.

So the legislation as I said is pretty clear particularly duty holders need to do particular things to reach the standard of safety I suppose that we as a society say that we want and we can afford and then we bring regulators as well. But I think as individuals we each have our own responsibility which is probably quite different to that which is given to us under legislation.

Kevin: Yes I think one of the hard things in modern Health and Safety is that we don't have a clear definition or a clear line of compliance of responsibility. Everybody has their own understanding of where the line is or whether the line is very wide or very narrow, and this often leads to lots of discussion and arguments after an incident in terms of exactly that. Simple but complex question of who is responsible. You're shaking your head here, so you don't agree that there is a confusion on compliance?

Siobhan: Look I think there is confusion but I think that actually the law and it's not the answer to everything. The law is pretty clear about who should do what. I think the law is pretty clear about who is responsible for certain high level issues and then there is a need to you know implement that high level responsibility into systems and all sorts of things and I think people get confused sometimes about what the law says. When we talk to people you know people come to us and they ask us for advice.

There is often a lot of push back about what the law actually says. They don't want it to mean – what I think it is pretty clear about. So I think that is one issue and then the issue about the fact that there is often a lot of discussion after an issue well after an incident rather, who's responsible. I think that's what people's underlying concern is – am I responsible in some way. ut I think that's really more an issue around what caused the incident and you know once again, I don't think that causation needs to be as difficult an issue as its become.

Kevin: I think one of the things that I am often asked about is – they believe that the person who's responsible for their own safety or the worker or whoever is doing the task chooses not to be safe, chooses to do a task that is a disregard for rule, can I put it that way.

Siobhan: Yes.

Kevin: And I have been surprised at how common that is. I think it might be inverse of what you were talking about where you know am I responsible. Well how come he's not responsible.

Siobhan: Yes. Look I agree with that. I think that there's - you know for every session that you run and you outline the duty of the employer or the person conducting the business or undertaking and that the duty of the officers, the people that make the decisions for the PCVU's of the world. You always get that question well, why do all those people have responsibility when you have got workers who will deliberately flout laws because they want to knock off early or something like that.

That is an ingrained way of thinking and I think it taps into something that we might have a chat about at a later date. Safety culture is a really interesting thing. Safety culture kind of overlays all the rules that we have and so although it is pretty clear the responsibility of the employer, it's pretty clear what the officers and the directors need to do and it's pretty clear what the workers need to do. There is often a sort of a cultural position that says – well it really is the worker who didn't follow what we had outlined. The truth is that the worker is done typically speaking working to a system (or a lack of a system) that's been put in place by someone else and they're working to that system with great training and supervision or not such great training and supervision.

Kevin: You're listening to Cabbage Salad and Safety.

Part 2

Kevin: So many people Siobhan seem to see Health and Safety as really difficult even though a lot of people sort of advocate that it should be simple or that it is simple. What's your experience about the complexity of determining responsibility and management?

Siobhan: I think that there has been complexity in it in the past because we had eight WHS jurisdictions in Australia so you have got however many workers, I think there is about 13 million and you have got eight – it's crazy. So all sorts of different duty holders, it was difficult to make your way through it. The model laws with really only WA as an outlier because Victoria is so similar I think have made the laws a lot simpler. But I think there are two things which continue to make people think that complying with WHS laws are difficult.

The first one is that I think there is a bit of resistance to people accepting what I think is pretty simply stated in the model Work Health and Safety Legislation about who key duty holders are and what they need to do. So I think there is that resistance. But I think secondly, the duty holders have got pretty broad duties and the way the legislation is drafted it says – look you know, PCBU person conducting business or undertaking, you take reasonably practicable steps to keep your workers and other people safe. But you then have to go off and pretty much work out what that means.

What is reasonable practicability in your particular industry and you then need to identify the nuts and bolts to deliver that. And I don't even think that's too difficult but I think difficulty is sort of injected into it by – and I hate to say this – a bit of safety industry out there in whose interests it is to make it difficult because they sell products and training and everything else around it.

So without labouring the point to much a classic example is this whole issue about verification of competency which I know you are familiar with. And the Master Builders Association invited me to speak to their membership about this because everyone is really confused, do I have a legal duty to conduct verification of competency and in fact there isn't any such express duty as you know. But you would think that there was when you read the consultant's spiels about it. Not you of course Kevin.

Kevin: No no no I am totally reasonable. I think the verification of competency is one of those difficult things in terms of its essential to provide a safe work place. You have got to know that the people who you trust to do the tasks or use the equipment are doing it in the right way and the way it's intended. But also in a business can see the verification of competency as a doubling up of business costs and time and all of that sort of stuff.

We asked at the very start who's responsible for safety. Who's responsible for the safety skills of a person?

Siobhan: It's a really interesting question, isn't it? Well I think that it's shared responsibility. So first of all as an individual if you are going to hold yourself out as being an electrician you must have a valid electrician's licence and if you try and perform electrical work without that licence or you have a fraudulent licence then you are breaking the law. So that's really clear responsibility but if you engage an electrician five year licence and the electrician hasn't performed any electrical trade skills for four out of those years then you really do have an obligation to verify that his competencies remain sharp and certainly sufficiently safe to be operating in your business.

And high risk work licences are generally a five year duration, that's the real risk with them I think. So you might say there's a duplication I don't see it that way. I think that the licence says the persons completed their trade and at least at the day we assessed him for the licence he could do it on that day. But he may well have gone and had an accident and suffered amnesia in the meantime. I mean that's extreme obviously. So I don't think it's a duplication.

Kevin: I undertook some training in the high risk operating and elevated work platform. You know the proper cherry picker with the harness and I remember being – I did it to simply to understand what were the procedures and what were the risks and what were the requirements of the training so I could audit and assess and those sorts of things.

But there was also a guy in the class who was undertaking the training himself he had paid for it himself he had been made redundant from the car industry and he was trying to get enough tickets or qualifications that he could go out and apply for a range of jobs. And I had great sympathy for the guy and really admired his determination. But that's another example of where you can get your qualification but if you don't have a cherry picker in your back yard to practice on, the competency will fade. I'm just wondering if that's probably one area that industry needs to look at all the time is that training has to end at a certain point. But then there must be some facility or some opportunity to get into the equipment to use that to refresh and polish your skills.

Siobhan: I think that's right and there is two circumstances I suppose there, you have got an individual who's got his credentials and he has got basic training but you are saying perhaps industry needs to think about making opportunities available for someone like that. I think the reality is that that's a market driven thing.

Kevin: Yes.

Siobhan: So if there is a deficiency in the number of people available to do what he's got his credentials for someone will offer him the training. You know the market will meet that issue and that's a harsh reality. In terms of safety what we know is that a business that wants to use him is going to have to give him that experience before they can verify him as being competent. So it is a slightly different issue I think.

Kevin: A lot of the people when they try to think about their responsibilities for health and safety. In my experience I quite often have clients and talk to people who are looking for ways to minimise or avoid their responsibilities rather than saying that's a responsibility let's deal with it and incorporate it. That's my experience out in the market place. You service a different audience. What's your experience, do you get a similar response?

Siobhan: Look I think that you talk about markets and that's right there are really sophisticated clients for whom safety compliance at all levels is really important to them because they think it's the right thing to do – it's very important for their reputation as a corporate citizen and I want to comply with the law. You have other organisations which tend to be, you know, probably operating on much slimmer margins if we put it that way. They are under more pressure from that perspective and they want to make their dollar go further. So they see safety compliance as a cost which I think is a mistake but that's where current thinking sometimes sits.

I should say however that I think that there is one part of even the sort of I might call the more sophisticated end of the market and I still see enormous resistance in some sectors to accepting that the officer's duty imposes a really personal practical duty on our directors and other officers. So most of I think Australia corporates have accepted that but there's still is a real resistance to, you know it's kind of an okay idea up there in concept land, but people don't accept that there are real nuts and bolts that they need to engage in in order to comply.

Kevin: One of the things that you mentioned is seeing safety as a cost and at times it seems to be responsibility in a way. When somebody wants to start a business they have to do business plans, they have to consider a whole range of things to justify bank loans, or whatever. But one of the things that often I see missing is any integration of Health and Safety right from the very start. So that it still may be seen as a cost but it's seen as a cost of doing business as part of business. I just wonder whether a lot of people sort of don't consider safety as a big issue up front. They try to impose it on to something that they have already got organised and they find that it's a real inconvenience and as a bloody cost. Is that a fair assumption?

Siobhan: Yes it's just interesting the way you put it. I think that – so if it's really high risk industry, so people know that they are regulated in every aspect of what they do. Setting up appropriate safety systems will be something they do take on board.

So sometimes when we work with clients that are going set up a new facility or something of that nature they will be looking at setting up an appropriate Work Health and Safety system in the same ways that they are looking at setting up a payroll system for example, it's that important but I do think that in less obviously risky workplaces sometimes they grow very quickly and their infrastructure and systems pretty quickly get outgrown and safety is one of the systems that I think is sometimes left behind. So they are not going to let the payroll get left behind because if you don't pay your workers your business is going to end and I think to that extent I agree with you that safety is almost put in one of those discretionary boxes sometimes when businesses are growing.

Kevin: Yes I think it's important to understand that if you are starting a business from scratch or you're starting a business based on the trade and skills that you have got that you need to integrate the responsibility for safety right from the very start.

Siobhan: So I think Kevin it is interesting when I sit back and I contrast how you and I think about this sort of issue I really do take the lawyer's approach I suppose which is that look the boxes are pretty clear the law says particular duty holders need to do particular things to keep people safe and when they are working out what they actually do they need to think about the size of their business, the risk of their business and really importantly at what stage is their business, is it start up or is it more mature. Regardless they all have a duty.

What I see from speaking to you though is that it's really not that clinical, it's a little bit messy out there.

Kevin: Well I think it is messy. But I think the law it's has been around for a long time and it's fairly well understood. But where it can get messy is when you try to determine the level of risk, the level of activities, and people are saying, well it's an office environment, therefore it's low risk. Well it might be low risk in one but it could be high risk in something else.

Siobhan: Yes.

Kevin: I mean there's lots of people would argue that you determine, you develop your safety in terms of risk and I tend to agree. Except that there is a legal obligation that regardless of what size of business you're in or what you are doing, whether it's on the water or whether it's in an office. You still have a responsibility for safety and you still have to apply it and act on it.

Siobhan: Well we can agree on that.

Kevin: That's a great place to finish Episode 2 of Cabbage Salad and Safety. Thanks Siobhan and I look forward to the next one.

Siobhan: You too and I won't bash you up next time. Thanks Kevin.

Kevin: Thanks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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