boxing-gloves-375473Ronda “Rowdy” Rousey was at the top of her field, training hard and winning harder.  Her success had built her brand.  So much so that she diversified into acting with parts in two big budget, big publicity movies. Then it happened. Her reputation did not match her performance. Immediately the questions started – would she come back?

As the saying goes ‘the bigger you are the harder you fall’.

The shock and self-doubt experienced by Rousey and the public commentary about her performance and her future are also experienced by organisations and industries following a significant or catastrophic workplace incident. 

There is the shock. That a colleague, friend or someone on their watch has suffered serious injury, or lost their life. There are questions about why the systems and the commitment to safety were not enough to prevent the occurrence. Your performance has not met your own expectations and the expectations of others.

Then comes the uncertainty about what comes next. Uncertainty about what an investigation will reveal about the failure, the associated consequences and the future cost of prevention. You will question if you are going in the right direction, including whether your systems and processes are adequate. The safety solution is not the only area of uncertainty for business – it extends to how to re-build trust, how to re-build brand and how to re-build performance.  In short, how will you get back in the ring?

Like Rousey the business has to persevere. It has to assess what happened, what needs to be reinforced, what needs to be improved and what needs to change. Was there over training? Or undertraining? The wrong preparation? The wrong support team? Is there new technology or new techniques that can assist? Are there improvements that can be made to the system of work? Do you need a new coach? Or a new approach? In reality it is probably a combination of all these things (and more) for the business to get “back in the ring”.

Then the hard work needs to start again. Not from the beginning, but building on what was implemented before the incident and incorporating the lessons learnt. We often find that organisations that have experienced a significant or catastrophic incident take a different approach to risk control than those that haven’t. They keep a healthy level of vigilance on the performance of their critical controls and they drive the commitment to safety through all levels of their business. They use a variety of levers to engage and embed an incident prevention mindset – they are not afraid to bring in outside expertise to give them the edge to get back on top.

And like Rousey, it is important to take your time, consider your options and develop the right strategy to get you back in the ring.

Phone

Are you getting the best advice when it comes to health and safety compliance?

When we deliver legal briefings, both in Australia and internationally, top-of-mind for Boards and Senior Executives is the health, safety and welfare of people affected by their operations. This is how it should be – so everyone breathe a collective sigh of relief (insert sigh).
When it comes to seeking commercially sound legal advice on these issues – whose advice should you be seeking?

Under the model work health and safety laws in Australia, officers have a positive duty to exercise due diligence. This includes taking reasonable steps to ensure they have the relevant knowledge and understanding, or take the relevant decision or action[1]. SafeWork Australia’s Interpretative Guideline[2] provides further guidance to officers on what is meant by taking “reasonable steps” in this context:

‘Officers may meet the due diligence requirements in some respects by proper reliance on information from and the activities of others, while having more direct involvement in the health safety management and governance in other aspects. To the extent to which an officer will seek to rely on others, the officer must be able to demonstrate the reasonableness of that reliance, which may be demonstrated through credible information and advice from appropriate people’….

Let’s consider a request for advice by Board members who want to know whether or not they are complying with their legal obligation to exercise due diligence. This question is a legal question that should be answered by a legal practitioner. Having this question answered by a legal practitioner also paves the way for them to be able to call upon the appropriate services from internal and/or external subject matter experts pertinent to a particular issue.

Another key issue facing Boards and Senior Executives, is whether the person they are relying on to provide adequate advice, is actually capable of providing it. For example, can a health and safety professional provide legal advice? The general position would be no – not unless the health and safety professional is also a legal practitioner (although there may be circumstances where a person who is not a legal practitioner can provide this type of legal compliance).

That doesn’t mean Boards and Senior Executives shouldn’t be receiving advice from health and safety professionals and other consultants/experts when it comes to advising on performance, strategy, risks, culture, climate and other non-legal aspects of due diligence. However, Boards should be thinking twice when seeking assurance on the question of legal compliance from anyone other than a legal practitioner.

The sceptics among readers may see this as a way of legal practitioners justifying their existence. And, well, they are certainly entitled to their views. If those same sceptics are going to help their Board and Senior Executives demonstrate the reasonableness of their Boards reliance on credible information from an appropriate person, they will need to be open to a different point-of-view.

Another tip – once you have decided to seek advice from a legal practitioner, ensure that the legal practitioner has the requisite experience and expertise in the field. If the sceptical readers are still reading, no doubt they might be up-in-arms about this additional suggestion. But let’s explore the issue further in the interests of getting the best advice available.

In the book Outliers, author Malcolm Gladwell states it takes roughly ten thousand hours of practice to achieve mastery in a field. So, in general terms, the greater the experience and expertise of a legal practitioner, the stronger the basis for the reliance on the legal advice.

A legal practitioner with experience includes a person who has:

knowledge or practical wisdom gained from what one has observed, encountered or undergone’ and an expert is defined to include a person ‘who has special skill or knowledge in a particular field[3].

So when you combine experience and expertise, consider asking the following questions before seeking, receiving or accepting, health and safety legal advice:

  1. Is the person providing the advice a legal practitioner?
  2. What position does the legal practitioner hold?
  3. How many years has the legal practitioner held that position?
  4. What is the legal practitioner’s field of expertise?
  5. What is the extent of that legal practitioner’s expertise?
  6. What level of practical experience does the legal practitioner have in this particular field? (This does not include how many articles, blogs, webinars, but actual practical experience).
  7. What level of experience does this person have in providing this type of legal advice? (For example, has it ever been tested by a Regulator and/or in a Court? And if so, what was the outcome?).
  8. Is there anything else I should know about the person providing the legal advice?

For those of you who provide advice and support to Boards and Senior Executives, it is important to demonstrate insight into whether or not you are best placed to provide that advice. If not, are you sourcing the right person for that particular piece of legal advice? Sometimes pressure on resourcing and/or restructuring can be reasons why we are reluctant to defer to experience and expertise, but this is one critical area where we should resist. Certainly, we are not proposing peddling  the legal risks of getting this wrong, but we’re confident that without too much effort, you can work out the personal and legal consequences that may arise.

Whilst constant vigilance and a healthy level of caution are valuable, accessing the right legal expertise might also have broader implications when you are seeking compliance advice generally.

With the right advice (both legal and non-legal) Boards and Senior Executives can have a positive impact on the health and safety of their people and those affected by their actions.

References:
[1] Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia

[2] Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia

[3] Macquarie Concise Dictionary, Sixth Edition

PokemonOur colleagues in the US recently published an article on Pokémon GO, Nintendo’s augmented reality game involving scrambling around real-world locations to ‘catch’ virtual beasts with your smart phone. (There’s a sentence I’ll never write again!).

The article explains that, despite the game’s popularity, employers have cause for concern in relation to data and security and workplace safety.

Pokémon GO is similarly taking our fair shores by storm. It seems all too easy to poke fun at this new gaming mobile app. However, as the article highlights, if employees are out to ‘catch ‘em all’, employers could very well find themselves caught in a nasty game of software security, privacy and workplace safety issues.

Anime (see what I did there?), that’s enough from me.

I hope you enjoy the read – Pokémon NO: New app creates risks for employers

LuggageA takeover of one business by another can be a lot like a visit from your mother-in-law.

On Mother’s Day, we enjoy a cup of tea or a glass of bubbles with our mums in recognition of all their hard work and sacrifice. We give thanks for the tips, advice, guidance and life-long lessons only they can proffer. I recall with great fondness my Mum’s unwavering enthusiasm during the tears, tantrums and pre-stage jitters of my jazz-ballet/hip/funk/tap performances. For Mum, an exhaustive commitment of pick-ups and drop-offs, elaborate hair do’s, dress rehearsals and toe-tapping her way through yet another Robert Palmer tribute. Every time, through the haze of Cedel Hairspray Extra Firm, there was my Mum.

But what about when your mother-in-law comes to stay? When all your hard work is questioned. When your housekeeping standards are judged by her white-gloved finger across furniture and subsequent pursed lips. When those menial tasks you have performed over and over, and without incident, are scrutinized. When you (and the state of your linen cupboard) are the unwilling recipient of unrequired and unhelpful advice.

Or perhaps it’s the other way, and you find yourself having to articulate the importance of housekeeping, of putting things away, washing the dishes and keeping your new duck-egg-blue Mud platter out of the dishwasher. In either case we are all familiar with that feeling of tension and unease that visits of this kind bring with them.

You can find yourself defending your safety management system and/or trying to explain the importance of it. Playing nice and toeing the line can be stressful and challenging. Not unlike being visited by your mother-in-law, being prepared and planning ahead is critical.

Here’s our ‘to-do list’ for such visits:

  • Get your house in order; prepare for the meeting or the site visit by making sure that your housekeeping is up to date and personal protective equipment is being used;
  • Be proud of what you have, be ready to talk about the positives and to share your knowledge of the role of safety in the business and how your safety framework hangs together;
  • Be prepared to respond to any knowledge shortfalls about the business, the risks in the business, your safety record, areas of improvement and challenges;
  • Prepare your workforce and keep them informed – the more they are the more likely they will be to keep their mind on their job and not of their job security;

Be sure you stay open to new ideas and differing perspectives, After all, sometimes mother does know best. Recognise that the change brings an opportunity to learn something new that improves the way you are managing your health and safety practices.

Getting access to a service provider can be like a game of snakes and laddersPhone.

A colleague in our office has been trying to update her new bank details with a service provider. Her attempts to provide that information and resolve the issue have been challenging to say the least.

Interactions included numerous unsuccessful calls to their customer service line, navigating through complex main menu options, voice recognition failings, and the final assault, enduring the repetitive melody of some 16th century/German-born composer during lengthy wait times.

We’ve all been there.

Helpfully (or so she thought), there was an option for her to leave her phone number and have a customer representative call her back. When they finally returned her call it was 11.45pm. She missed the call and the message that was left for her was to contact the customer service line. Defeated, our colleague skidded down the snake’s back once again. She has been part way up the ladder and back down the snake five times in the last fortnight. Sigh.

Many of us have experienced similar challenges.

What if this customer service experience was experienced by an employee, contractor or a member of the public trying to report a significant risk to health and safety or the environment?

Are you confident that your HSE reporting processes for considering information regarding incidents, hazards and risks enable you to respond in a timely way to that information?

Some key considerations are:

  1. Systematically test your processes for reporting incidents – are there road blocks or red flags in your current reporting systems that may prevent an incident being effectively reported?
  2. Have you got a process for verifying that your system works? Are you confident things aren’t falling through the cracks?
  3. Make improvements. Stay ahead of the game by seeking new ways of reporting incidents as technologies evolve.

15 Australian workers have been killed so far in 2016, and based on statistics below, an additional 175 people may die in work related incidents this year.

Workplace fatality stats

Whilst many organisations properly devote vast resources and time to managing health and safety, and have processes in place to respond in a time of crisis, many don’t have a plan for managing the people issues during a crisis.

Some confronting questions that can arise are:

  • when is the right time to pack up a colleague’s desk or empty out their locker?
  • will the family want to see former colleagues and senior managers at their home and at the funeral service?
  • will a family want to see the scene of the incident?
  • what additional assistance might friends and families need and who should convey offers of assistance to them?
  • how should a memorial be managed?

We have numerous other examples of people issues that will arise and our experience over the last 20 years has shown us that clients who have successful responses have a clear framework and accountability for consulting with family members and co-workers about key people issues.

The most comprehensive crisis management plans will not be able to predict and plan for all of the reactions of co-workers, friends and the family of the deceased. However, careful planning can alleviate some of the risks associated with this aspect of your company’s crisis response.

Seyfarth Shaw is excited to announce that Jane Hall has joined the firm as a partner from Corrs Chambers Westgarth. Jane is one of the country’s leading health and safety lawyers, with almost 20 years’ experience in the public and private sectors.

Jane has extensive experience in both litigation and advisory work and has been involved in numerous investigations, coronial inquests and prosecutions. Jane’s experience working in-house in legal and operational roles, including as a senior executive for a safety regulator, have provided her with a unique understanding of clients’ needs in a crisis.

“We are excited about the expertise and profile that Jane will bring to the firm, further enhancing our reputation for high stakes litigation and advisory work for leading employers”, said Australia Managing Partner, Darren Perry. “Jane’s knowledge and experience in workplace health and safety is a natural fit for our firm as we continue to focus on responding to the complex workplace law needs of our Australian and international clients.”

Jane will continue to service clients from Melbourne and will work closely with Paul Cutrone who joined Seyfarth Shaw last year.

The NSW work health and safety regulator has brought a successful prosecution against a company director resulting in a criminal conviction and fines against the director and the company. An order was also made requiring the director to pay the costs of the prosecution. It appears that this is the first such successful prosecution under the harmonised Federal safety legislation in NSW. However, the fines imposed in this case ($15,000 against the director and $150,000 against the company) were low given the specific circumstances of the case.

What does this mean for me?

Directors and officers in a business must be able to show that they have taken reasonable steps to exercise due diligence in respect of their safety obligations. This decision reinforces these obligations and the importance of compliance with the positive duty on directors to ensure and verify that processes and resources are used and implemented appropriately.

What happened?

Austral Hydroponics grew greenhouse truss tomatoes. On 7 March 2013 Eang Lam, the sole director of Austral, directed one of his employees, Mr Nuon to remove plastic sheets from the roof of a greenhouse. No instruction on how this task was to be done was provided to Mr Nuon, nor was any fall arrest equipment provided. Mr Nuon used a ladder to climb onto the roof of the greenhouse. While standing on the gutter of the greenhouse and attempting to pull away the plastic sheets, Mr Nuon lost his balance and fell 2.5 metres.

Mr Nuon suffered a fracture to his spine which caused spinal cord damage and tetraplegia (also known as quadriplegia). Mr Nuon’s condition was considered catastrophic. He remained in high dependency care in hospital until he died in August 2014. It was not alleged that the death was caused by the injures received from the fall.

The Court found that Mr Lam failed to exercise due diligence by taking reasonable steps to ensure compliance with the Safe Work Australia’s Code of Practice on ‘Managing the Risk of Falls at Workplaces Code of Practice’. There was no risk assessment for the task and no safe work procedure. Mr Nuon was not assisted in undertaking the task and was not adequately supervised. Mr Lam did not take reasonable steps to ensure that workers were only directed to work on the roof of a hot house after a risk assessment had been conducted and control measures were implemented to minimise risks to safety.

What lead to the low penalties?

Mr Lam could have been fined up to $300,000 and Austral up to $1,500,000. However, the Court imposed low penalties because:

  • evidence showed that Mr Lam was suffering post-traumatic stress disorder and major depression, and had significant symptoms of anxiety
  • Mr Lam and Austral had limited capacity to pay fines
  • evidence showed the good character of Mr Lam and his community contributions in business since 1983
  • it was unlikely Mr Lam or Austral would reoffend, given the remorse and contrition of Mr Lam and that Austral was no longer trading, and
  • early guilty pleas from Mr Lam and Austral.

If you would like to discuss this decision further, please leave a comment or contact us.

Bullying behaviour comes in all shapes and sizes.  Identifying and deciding how to respond to diverse bullying behaviour by a worker (or workers) can create challenges for employers.

Recent headlines have cautioned that unfriending on Facebook could be considered bullying. That this seemingly innocuous action has been elevated to “bullying” has been the subject of many concerned water-cooler discussions since hitting the mainstream press. Continue Reading Death threats and unfriending – what is bullying?

We recently attended the Health, Safety, Environment and Community Conference convened by the NSW Minerals Council. The Conference drew together participants from across the mining industry in NSW to look at what miners are facing and how they are dealing with the challenges. Continue Reading The latest challenges in health and safety in the mining industry