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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Shifting focus up the line

Shifting focus up the line
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New Zealand

The Department of Labour's traditional focus when investigating and prosecuting parties under the HSE Act may have reinforced some common misunderstandings about the responsibilities of various parties.

Alan Cooper, from the Department of Labour, told delegates at the recent Safeguard LegalSafe conference in Wellington that he wanted to dispel some myths and misunderstandings about responsibilities under the HSE Act. He said a number of parties had responsibilities and stressed they did not pass from one to the other. "They exist across all the parties ... which is not well understood by some people."

Cooper, a practice leader within Workplace Services, said the way the DoL had carried out its work may have reinforced that belief. DoL had in the past mostly focused on the main contractor (whether principal or employer) and the sub-contractor. But in an accident investigation others in the chain might also need to be called to account. While there were cases where the DoL had looked higher up the level of the supply chain, by and large its investigations had only looked at the level of immediate employers. "We are aiming to look higher up the line and tiers of principals in contract relationships."

Cooper said due to the legal requirements to report serious harm, the DoL had been caught in reactive mode. It received about 6000 serious harm notifications annually, as well as 5000 complaints. That meant it was exposed to about 11,000 matters each year but only had 140-150 inspectors, so had to be selective in its approach.

Cooper said the focus of investigations tended to be on what had occurred and whether there were liabilities. But the DoL also wanted to educate and make sure people were aware of their responsibilities, avoiding situations where people think "it does not apply to me".

The DoL also wanted to ensure those who had workplace incidents learned from their experiences and re-examined their systems and processes to avoid repeats. From a wider perspective, it wished to ensure such failures were not replicated elsewhere, and that good outcomes influenced industry practices.

Cooper said the DoL wanted employers to shift from thinking just about compliance to becoming health and safety leaders. "The focus should be on how to ensure people are not hurt at work, rather than what has to do done to be legally compliant."

Safety influencers
The DoL is increasingly identifying those in the supply chain who had the maximum ability to influence improved workplace safety behaviour in the future, Cooper said.

An example not always thought of is the role of the project manager. "All too often safety does not come into their formal timeframes and budgets, but they're the people on site on a daily basis observing the work." Project managers are involved in regular discussions about work processes and have a significant ability to influence safety.

He noted that people at the top of the supply chain are often involved in multiple projects. "By reinforcing to these people their responsibilities within contract relationships, you create a greater reach."

Designers and architects could also significantly influence safety. Cooper said the DoL had taken prosecutions against plant designers and suppliers, and also looked at the responsibilities of architects, as in a case where they failed to pass on information about asbestos in a building to be demolished.

"When looking at the supply chain we are talking about shared levels of responsibility. Duties under the HSE Act are not passed from one to another. Each has duties to take reasonably practicable steps." Unfortunately, he noted, there remains a perception in some quarters that one can contract out of one's responsibilities, and that it all comes down to the person holding the contract to ensure safety. "The department does not agree with that."

Cooper was critical of what people referred to as pre-qualification, which on its own did not reach a sufficient standard to ensure safe outcomes. "Using what is tagged as pre-qualification as the sole consideration for a contract ... is often just a list of contractors previously used, who are known and have given good rates."

Cooper warned of the practice of "the exchange of health and safety folders" which are often totally irrelevant. "You've got to dig a little deeper about what they say, and that's not found in some generic product bought off the shelf." Exchanging folders was seen by some as ticking a box on some audit sheet. "There is no rigour in checking the content, in verifying performance, or monitoring to verify that polices and procedures are followed." He warned how the end result can be a "veneer of H&S appraisal".

Coordination is essential where there are multiple contractors on a single site. Absence from the site is no excuse. "The question is always going to be what could the person have done?" The DoL would pay most attention to those with the greatest knowledge of the industry and its hazards, he added.

Doing it right
Those involved in running large projects need to scope the required work including the critical skills required, plant and equipment, and the cost/price implications.

Cooper said questions needed to be addressed about the capability of the contractors and their performance history, and references sought for independent verification. "Seek verification of what you are told ... if it becomes known you are not just going to accept some glossy folder but are going to make checks, that becomes known and will improve performance in itself."

When negotiating the terms of a contract, details should be provided about known hazards. The draft project plans should include terms and conditions of the tenders to cover OHS requirements, with evidence that it is taken seriously, and that the price reflects that. When a contract is awarded safety plans must be fully developed, and the responsibilities and lines of communication agreed upon.

Monitoring is important to ensure contractors are doing what they say they will do. If someone is working unsafely and there is a risk of harm then the job should be stopped rather than worrying about liability or slowing down. After the work is completed the parties should recognise successes and provide feedback, to feed learning back into the pre-qualification process.

Cooper's advice to OHS professionals is to think how they can enhance safety outcomes more broadly than the narrow interests of their employer, or the immediate project. If contractors seem shaky on safety they should be helped to improve their systems.

People Mentioned:
Alan Cooper
Organisations Mentioned:
Department of Labour
Reference No:

From Alert24 - Safeguard Update

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