Employers, whether they know it or not, have some form of system in place to manage occupational health and safety in the workplace and a health and safety culture that permeates the approach of employees while at work.
The more aware and risk averse and/or safety conscious employer will have developed this into a formal and documented health and safety management system aligned with global standards such as ISO 45001 or ILO-OSH 2001.
Hallmarks of these systems include a ‘top-down’ approach, executive level buy-in and, the on-going improvement and development of systems to proactively ensure that employees work in a safe and healthy environment.
Conveniently, these systems assist an employer in complying with applicable legislation and health and safety regulations.
It is common, and often recommended, that occupational health and safety systems be designed to work in concert and be integrated with other business management systems such as environmental management and quality control. The question though is, in the focus to integrate health and safety into operational quality and environmental management, are employers missing a critical step in potentially bypassing integration into the existing legal management systems?
A carefully considered health and safety management system must consider and be developed in line with an employer's overarching approach to:
- legal compliance;
- legal risk tolerance;
- legal and commercial approaches (to what may be considered ‘reasonable’ in particular circumstances);
- principles stances that the organisation may adopt to inform and drive legal approaches;
- and, the ability to manage legal risk (should an incident occur).
This goes beyond the system calling for legal compliance and including tools to monitor legal non-compliance. It is about the fundamental mechanics of a system supporting the legal approach and trajectory of an organisation.
Often distinguished from a legal function, and allocated to dedicated safety and systems personnel, key legal considerations and definitions are absent in the construction of a health and safety system. This leaves legal counsel to ‘reverse engineer’ a legal strategy to suit the system in the event of an incident rather than the system reflecting the overarching legal strategy and approach of an organisation.
It makes for a proverbial ‘unhappy marriage’ at times when the two systems must be required to integrate at short notice and under pressure.
Ultimately, liability for an employer following a health and safety incident is assessed and ventilated through a judicial process, including potential criminal proceedings, and it is imperative that the day-to-day systems that are in place can support a legal strategy that the employer may consider appropriate should the matter become litigious.
Key legal areas (outside of pure regulatory compliance) that a fully integrated health and safety system should consider include:
How the organisation approaches legal risk and the risk appetite in terms of potential litigation and engagement with the regulators. Does the organisation intend to adopt a policy of regulator appeasement and accept instructions and policies despite being aggrieved by them or challenge regulators and third parties when necessary? Does the organisation intend to challenge suppliers and service providers and hold them commercially liable for health and safety compliance and, if so, through what forums and at what cost?;
How does the organisation approach its own assessment of ‘reasonableness’? An understanding of the legal parameters and impact of this term, in the context of the health and safety obligation of ‘taking reasonable measures’ and ‘as far as reasonably practicable’ is central to ensuring alignment between legal teams and operational implementers;
The role of legal teams as ‘part emergency protocols’, particularly regarding the establishment of legal privilege, the handling of confidential and sensitive information at a time when regulators may be accessing the site and have a statutory right to inspect and uplift information, taking of statements from employees (especially where these are taken under oath), the appointment of external investigators and liaising the insurance personnel.
For legal risk management to be effective, and for legal practitioners to properly discharge their duties to their employers, the on-going integration and alignment of the health and safety system and legal process is a key rather than a reactive approach.
Kate Collier is a partner at Webber Wentzel. She specialises in health and safety law and has deep mining sector expertise.
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