Great article by Health and Safety Lawyer Greg Smith recent published here on his blog: My Safety Thoughts. Look out for Greg’s new book, co-authored with Dr Rob Long (due out in June): “Risky Conversations, The Law, Social Psychology and Risk” – I’ve had a sneak preview and it is an absolute cracker!
An adequate system of work – And no SWMS required
by Greg Smith
In a recent NSW decision, Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58, the New South Wales District Court has again looked at the issue of an employer’s liability under occupational safety and health legislation where no written system of work exists.
This is a topic that I have discussed in previous posts which you can access here.
The facts as described in the case were:
[2] At about 2.30pm on 6 March 2013 at the defendant’s premises (the factory), the deceased was assisting another employee Mr Pham to lean a number of glass sheets stacked on an A-frame trolley forward to allow Mr Pham to remove one of the sheets stored behind them. The glass sheets were 2306mm high by 2100mm wide and weighed approximately 80kg each. The procedure adopted by the deceased and Mr Pham was for Mr Pham to lean the sheets towards the deceased and for the deceased to support them with his hands. It was intended that when Mr Pham could access the required sheet, that he would attach a pinch grab to it and remove it to another A-frame trolley by the use of an overhead travelling crane (the crane). The weight of the glass sheets became too much for the deceased to support and they fell causing him fatal head injuries.
[3] At the time the deceased was under the influence of cannabis to the extent that in the opinion of Dr Judith Perl, a consultant pharmacologist, the deceased’s perceptions, judgement, decision making processes, vigilance, appreciation of dangers, concentration and reaction times were significantly impaired.
While it It was common ground that the defendant a “system of work” at the date of the incident, it was not “reduced to writing“. It was implemented through verbal direction and on the job training, enforced by supervision.
The prosecution argued that the:
“... system of work was inadequate [and] described the …system of work as “informal”, “ad hoc” and involving the exercise of a worker’s discretion, based on their experience, to determine how to move a piece of glass.” (paragraph [66]).
As often happens in these cases, the prosecution alleged that there were a range of reasonably practicable steps that the employer could have taken, and that these reasonably practicable steps were proven because they were methods adopted by the employer after the accident in a Safe Work Method Statement.
Ultimately, the Court accepted that the employer’s system of work was sufficient, notwithstanding that it was not a written system. The Court found that the system of work provided adequate training, including the use of a buddy system, that was enforced by supervision.
Moreover, the Court expressly found that:
It was not reasonably practicable for the defendant to provide the training required by sub-paragraphs 6(a) and 6(d) in a written SWMS … (paragraph [95]).
The Court observed, firstly that a SWMS was only required for high risk construction work, which did not apply in this case and further, a SWMS is not evidence the workers had been trained in the content of the document nor that they would comply with it.
While I think that there are elements of the case that may be open to challenge if it was appealed, it is consistent with a number of cases that challenge the credibility of documented safety management systems, or at least their application in practice.
The lessons from all of these cases is that the primary duty of an employer is to ensure, as far as it can, that it’s workers understand the risks associated with the work they undertake, and work in accordance with the controls that have been implemented to manage those risks. To the extent that this can be demonstrated:
“Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety” (paragraph [32]).
Whether those risks and the measures to control them are evidenced by documented systems is neither here nor there. Indeed, one of the common failings of safety management systems is our tendency to document the system but then never apply any effective assurance, much less adequate due diligence, to confirm that the system is implemented and effective in practice.
Ultimately, it will be the evidence of the workers and their description of how they perform the work, both at the time of the incident and historically, that will determine the extent to which an employer has implemented an effective system.
Documented processes for managing health and safety risks at work are of course important. In some cases they are a strict legal requirement. However, if you have documented systems that describe how work ought to be performed you need to be continually asking the question, how do I know the work is actually being performed in accordance with that system?
For what it is worth, the number of incidents or injuries that you have in a workplace is not a measure of whether work is being performed in accordance with your documented systems.
