Records of safety activities: evidence of safety or non-compliance?

Recent article by Greg Smith – Partner at Jackson McDonald Lawyers and author of Paper Safe

First published here: https://www.linkedin.com/pulse/records-safety-activities-evidence-non-compliance-greg-smith/

A recent Western Australian prosecution of a transport company has again demonstrated how systems designed to improve safety outcomes at the workplace can become evidence that an organisation failed to manage its workplace health and safety obligations.

In a case involving Centurion Transport Co Pty Ltd, a truck veered off a road overturned and caught fire. The driver of the vehicle was not injured, but the second driver was asleep on the bunk behind the cabin seats and died.

The driver was found guilty of dangerous driving causing death and sentenced to three years and four months in prison.

It was not alleged that Centurion caused or contributed to the death of the second driver. However, the truck had been fitted with a “Guardian” system as part of Centurion’s fatigue management. The system is designed to detect fatigue events when the driver’s eyes are closed for more than 1.5 seconds, or the driver is distracted.

Records showed the driver had intentionally moved the in-cab camera, so it was misaligned and no longer working effectively.

Between September 2 and October 26 2017, 468 field-of-view exceptions were logged for the truck involved, with 465 of these “camera misalignment” events. Centurion took no action in relation to these events.

Centurion pleaded guilty to an offence under health and safety legislation and was fined $40,000 and ordered to pay $18,996.30 in costs.

Unfortunately, the use of an organisation’s safety documents and data against the organisation as evidence of non-compliance is not new.

A 2018 Queensland coroner’s inquiry (Non-inquest findings into the deaths of Jamie Christopher ADAMS and Gary Robert WATKINS, 2018, p. 8) which considered a daily service check on a vehicle, found:

Operating crew members stated to the Queensland Transport investigator that a complete adherence to the checklist was time-consuming. Consequently, the usual practice was for a random crew member to conduct cursory checks only on the key items relating to lubrication, calling and work had mechanisms. The entire checklist would then usually be marked to indicate compliance.

I agree with the Queensland Transport investigator who was of the view that this “tick and flick” practice, over time, eroded the assurance that was intended to be provided by the checklist. It permitted a technically unserviceable Track Machine to operate in work mode within a work site. … It is my view that this failure is likely to have contributed to the deaths of Mr Adams and Mr Watkins.

Organisations store volumes of health and safety information, including audits, investigations, safe work method statements, hazard reports, all manner of checklists, Take 5s, JHAs – the list goes on. Very often these documents are collected as a compliance exercise (i.e., has the checklist been completed?) without any real assessment or assurance that the document has been completed properly and any identified issues are acted on.

What this results in, in practice, is the collection of health and safety information designed to protect organisation, but which acts as evidence of non-compliance – very often non-compliance with the organisation’s own health and safety management processes.

In my book, Paper Safe I argued that organisations, through their safety management systems, build databases of health and safety information in the mistaken belief that the accumulated history is evidence of both a safe workplace and compliance with legal obligations. Usually, it is neither. Typically, the collection of health and safety information is no more than an organisation building its own database of non-compliance.

My recent experience is that these problems are only compound using technology which means we can collect more and more safety information, but with no additional capacity to review or analyse the information.

It is important that if an organisation implements health and safety processes, it also invests the resources to ensure those processes are monitored – not just to ensure the processes are being completed, but more importantly to ensure that they are being completed properly and are operating as intended, which ideally means operating to achieve the safety outcomes that were designed for.