Australian courts are ramping up the way they deal with safety prosecutions, issuing far more significant fines and becoming “fearless of jailing people”, according to a leading safety lawyer.

“The “maturing” of the courts in this respect is one of three significant changes in WHS regulatory behaviour occurring across Australia,” FCW Lawyers Managing Principal Andrew Douglas says.

“Another change is that safety regulators are “prosecuting much more seriously”, resulting in a “flurry” of: industrial manslaughter and reckless endangerment charges in the past 12 months; and rolled up offences of up to 30 charges on indictments that are “incredibly expensive and complex to litigate”, he tells OHS Alert.

There has also been a dramatic increase in prosecutions of individuals, not necessarily company officers, particularly around breaches involving mobile plant.

“If you put all those things together, what it really requires people to do is to step back a little bit and go, ‘Alright, safety is an issue which we can go to jail on,'” Douglas says.

“Employers should be on notice to focus on identifying the higher order risks in their organisations and prevent them from happening,” he says.

FCW Lawyers has released a diagnostic model outlining five stages of organisational safety maturity that is integrated with operational practices, based on a review with clients.

“There are several studies that map the safety maturity of a business. But unfortunately, most are wedded to a traditional safety model, and do not contemplate or measure the business impact of safety and how the two correlate,” the firm says in an accompanying report.

The model includes the following stages:

• Responsive – where a business has rudimentary safety without systems that respond to safety, and where safety is not seen as part of business methodology;
• Emergent – where a business has solid safety processes, but they are word and paper heavy, and there is low operational knowledge and integration;
• Compliant – where safety is integrated into business processes and meets regulatory requirements, the safety system is accessible and known, and operational safety is a known and expected skill;
• Preventative – where a business adopts high-order risk management, safety is driven behaviourally throughout the business, and there is parallel investment and practice in operations and safety; and
• Culture – where there is a cognitive understanding and commitment to safety by operational staff that assists and grows business quality and productivity.

PCBUs can use the model to assess their safety maturity and the steps they need to take to climb to the next level, noting that one organisation could be spread across several levels, the report says.

“The best way to start is to obtain a skilled assessment of where you are from an external safety practitioner who is not obsessed with all hazards and paperwork, rolls up their sleeves, tests safety (and your systems) in operation and is courageously candid,” it says.

Douglas says safety “must align with business performance”.

If it doesn’t, it “will be seen as an operational blocker”, he says.

“Good safety creates good systems and high skills. This leads to a highly productive safe workplace.”

Below: FCW’s diagnostic outcomes of a “responsive” (rudimentary) safety regime