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Engineering implications of the harmonised safetylegislation by RichardRobinson he implications of the new model Work Health and Safety Act will forcefullychangethe way Australian businesses andgovernmentsoperate. The act is aimed at corporategovernance. It requiresthe most senior decisionmakâ‚Źrs (exceptinggovernment ninisters) to positively demonstratedue diligence for the safeq hazardscreatedby their business or undertaking. The penalties for recklessfailure to achievethis duty are criminal in nature (up to five years'jail and $600,000fine). Philosophically,the act adopts the Iegal view of causation,which necessarily is hindsighfbiased. By their nature, the courts only examine the minority of things that went wrong, not the majoritf of things that went right. That is, after the event,the fact is certain. This means

that, from the courtt viewpoint, prior tothe-event estimatesof rarity for serious loss eventswere presumablyflawed and thosewho madesuchestimatesare,pima facie,guiltyof negligence. Historically,due diligence is the primary defenceagainst common law negligenceclaims. The obligation under the act is for officers to positively demonstrate due diligence. This would appear to create potential opportunifies and difficulties for engineers. As an opportunity, it should increase the need for technically competent directorsand execulivesfor technologically basedbusinessesand undertakings. The notion of a mining company board comprised exclusively of legal and finance directors who have never beerr underground, and whose knowledge of

scienceand engineeringis insufficient to comprehendthe hazardsassociatedwith such an undertaking will be eliminated. This shouldprovide greateropportunities for engineersat the most senior levels,as the duty cannot be delegated. That is, under the act, boards can no longer decide on the bâ&#x201A;Źst commercial course of action and then delegatethe responsibility of safely achieving these outcomes to managers,and health and safetyadvisers.One of the lawyers who helped draft the act has been reported as saying that, if board members can not positively demonstrate that safety due diligencehas been achievedin their company'soperations,then the intention of the act is the company should not be in business.How such an idea might be applied to governmentdeparlmenl. is perplexmg. This need for due diligencerequire< a paradigm shift in the way risk management has typically been conducted in Australia. As shown in the table, the traditional approachdescribedin the risk managementstandardAS/NZSISO31000 hasbeento identiffhazards,analysethem and then evaluatethem by comparisonto risk criteria.Ifthe criteria arenot satisfied, then dsk treatmentsare applieduntil the criteria are achieved. The due diligence approach specifi cally rejectsthis method. It doesnot care about small issuesthat neverget to court. It focuseson eventsthat maim or kill or causeserious damageand tests to seeif all sensible practicable precautions are in place, based on the balance of the Thedue diligenceapproachfocuseson eventsthat maimor kill or causeserious significanceofthe risks versusthe effort precautions damageandteststo seeif all sâ&#x201A;Źnsiblepracticable arein place,basedon required to reduce them. This is prob ofthe risksver5ustheeffortrequiredto reducethem. the balanceofthe significance (1995), publishedby Engineers ably best representedby the diagram on Thisdiagramis basedon Liabilityfor ElectficqlAccidents Media. this page, adapted from Sappideenand 2012 ENGN E E FASU S T B A I .j A N UARY

Stlllman Liability for ElectricalAccifuxts Credible, Practicable, (1995),publishedby EngineersMedia. criticai precautronary \ Such an approach means that postIS S U E S event legal review of formally docu \ mented, quantified risk assessments that rely on target levelsof risk or safety will almost certainly provide beyond Commonlaw reasonabledoubt proof of the failure of disproportionality This riskdecision-makingprocess. will the decisionmaking thereby createcriminal Iiabilities for the engine relevant officers. The impact of this on man)r current risk assessmentprocesses cannot be overstated. From the perspectiveof the new act, technicalengineeringorganisationsmust e n g i neerdue dilige n c e .T h a t i s . th e y must ensure the laws of man and the laws ofnature are congruent.In terms of achievingsafetyoutcomes(lackof harm), ma nagingt he lawsof n a l u rei r l o g i c a l l y Precaution prior to dealing with the laws of man. implementalion This is obvious to engineersbut not, it QA system seems,to many lawyers. Most legal advice regarding demon- An alternative Y modelapproachwasdevelopedfor the Gladstone AreaWaterBoardin strating duâ&#x201A;Ź diligence as required by the 20'l1 to specifically addressthe requirements of the act. act is focused on a compliance audit to version such as AS/NZS 4360 2004 the relevantsection and clauses.But this t diligencereview is arguableat a common using the 5 x 5 risk characterisation/ shouldbe the outcomeofthe duediligence law duty of carestandard(the balanceof thenl hel i kel i hoodofbei ng evaluation system. process,not the cause.An alternativeY p ro b a b i l iti es) internal riskmanagershavenot briefed model approach in the diagram above successfully prosecuted on a beyond the management team on the new wasdevelopedby R2A with the Gladstone reasonabledoubt basis (the required legislation changesand how they will Are aW at erB oar din 2 0 l l to s p e c i fi c a l l y proof for statutory mischief) is minimal. Overall,engineersshould stepup, take affect your organisation. addressthe requirementsof the act. The no-one in your organisationis the "go resulting casestudy is availableon wra'w. a leadershiprole and use this act as an to" person for the new legislation, The processhasbeenapplied opportuniq/ to be heard at board level. no action has been taken to ascertan to several companiesand authorities Action in your businessesis required if: if your current system complieswith since, all to the satisfaction of relevant . your current OH&S systemwas establishedto comply with the riskmanagethe new act. legal counsel. ment standard, especially an earlier there is a generalconsensusthat "we The essentialpoint is that if the due will be compliant'i your risk regi"terhas integratedbusiAS/NZStSO31000 Due Diligence (Hazard-based) (Precaution-based) precauti onary deci si on m aking ir Establishthe context Establishthe context basedon a target level ofrisk or safety Risk assessment: Risk assessment: and not the common law balance.:, (Hazard)risk identification ldentifycredible,criticalissues (Hazard)risk analysis ldentifyprecautionary options RichardRobinsonis chairmanand (Hazard)risk evaluation Risk-effortbalance evaluation director of R2ADueDiligence Engineers. Risk treatment Risk treatment Healsopresents the publictwo-day Risk& LiabilityManagement colirsefor Thetraditionalapproachdescribedin the riskmanagement standardA,/NZSISO37000 Education analysethemandthen evaluatethem by comparison Engineering Australia, hasbeento identifyhazards, to Theduediligenceapproachspecifi<ally rejectsthis method. riskcriteria.



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