Andrew Douglas: This is, so we’re talking being honest about who’s doing stuff, this is definitely my idea, okay. One of the things over the last five years is Nina and I track trends in the way safety prosecutions and safety regulators and courts are behaving and legislators, because when we give you advice, we’ve got to tell you what is the risk now, where is it going to, where is it going to land? And so you’ve heard us say three or four times, maybe 400 times if it’s me, that regulators are laying more complex, higher charges against individuals and organisations. Courts have adjusted up to giving higher sentences and not fearful of giving custodial sentence, that is jail time.

Nina Hoang: Yep.

Andrew Douglas: And we’re seeing legislators, to try and wind back the wrongs that are occurring, creating much more onerous legislation with positive duties, prohibition, higher fines, and higher sentences. So where are we going in the world at the moment? We are seeing this escalation in complexity, cost, and risk towards business owners and leaders within business. And when I look back on the cases over the last three or four years, the thing that I noticed when I looked back and raised it with Nina is, when you look at cases five or six years ago, there were some very big incidents that occurred in minor things causing death, and we saw relatively complex prosecutions occurring. But we’re seeing that across the board now, not just in mainstream, you know, television events-

Nina Hoang: Even with small businesses-

Andrew Douglas: Yeah, yeah, and I think what we’re seeing now is the regulators coming in and saying, look, you’ve got a nice documentary system there. You’ve got a nice induction system. You know, you’re filling out SWMS, you’re doing everything, but people are dying and they’re dying because the supervisors are not enforcing the rules that exist or are absent when risk is around. And therefore, the supervisor in the organisation is liable because the supervisor’s problem/failure is the organisation’s failure. But there is a real focus on supervisors and particularly on supervisors involved in change, they’re afraid of appropriately consult and manage. And so what I said, Nina, is look, am I right about this trend, if I am, and if I’m not ’cause I’m just like that. And we had AI Constructions, which is the most recent case of it. Am I right about the way it’s going?

Nina Hoang: Yeah, look, there is definitely a subtle trend, I’d say that there is focus on supervisors, and the courts keep bringing it up, keep saying, oh, there’s a lack of supervision. And I think a lot of people haven’t picked up on it because they don’t really harp on about it as much. But you can see, just when I looked at cases this year, we found like at least six, seven different types of cases where supervision was a key consideration by the courts as to how far the employer had fallen from the standard of duty.

Andrew Douglas: Yeah.

Nina Hoang: And in A1, it was, you know, one of those cases where two workers were trying to remove loading skates from a condenser which had been loaded into a container. And unfortunately, it fell off the jack and fell onto them, and one of them died and one of them was seriously injured. And the key, like pretty much out of everything else, they focused on the fact that, if there had been a supervisor there actively supervising, it would’ve significantly reduced the risk ’cause he could have seen like, you know, it was happening and called out to them. But also another thing that people often forget about is supervisors are there on the front line and they’re the ones who need to know how qualified, how experienced, how skilled employees are, and know to put them in roles which they can actually do. And in this case, that didn’t happen.

Andrew Douglas: And then look, it’s a bit like a footy coach, isn’t it? You don’t put a rover at a full-forward.

Nina Hoang: What is it like going on, okay.

Andrew Douglas: But it’s such a great point that Nina makes which is, you know, when you look at what a safety system is, it has six elements. Is there a plan, what are the processes behind it? What is the education based on competence? What is the supervisor’s knowledge of the plan, the process, and the skills of the people that they’re operating with? How does that supervisor monitor and report back against the plan, so these six elements. But the bottom three all relate to the supervisor.

Nina Hoang: Yeah.

Andrew Douglas: But the critical part is, if I’m handing out a piece of work in the business and I go to hand out safety work to Matt who does industrial relations, he’s not going to have the skills that Nina has, and yet on a work site, it’s very common to say, hey, you two can do this without any consideration of, are they qualified to do it, are they capable of doing it, have they recent experience in doing it? You see, the supervisor’s skill has so many different layers of calibration. And they all come back to the safety system of number three, has the person got the skills and capability to do the job that is requested? And then there is just the visual part, is it safe? And the supervisor is the eyes of the business.

Nina Hoang: Yeah.

Andrew Douglas: And then you go down to saying, well, is the business system working, the monitoring process? Again, the only person who gives that evidence is, it’s not the OHS manager.

Nina Hoang: No.

Andrew Douglas: It’s the operational person who’s doing it. So there’s a couple of other cases you might want to just have a brief mention just to hone in on it.

Nina Hoang: Yeah, so there were a bunch of cases, and these are all very significant penalties, they ranged from 180,000 to 420,000. But they all focus, so there was a case against Metro Crane and BSA Limited who all focused on the fact that all of these incidents and fatalities, so one of them involved an electrocution shock, one of them involved working at heights, somebody fell through a sky lamp, light, is that what they’re called, yeah. They all had perfect processes, perfect induction procedures and, you know, if you were to go through a checklist, yes, they’ve clearly gone through-

Andrew Douglas: And all the mechanical guards. So they had all the machinery, they had all the PPE-

Nina Hoang: Everything was perfect, but the only thing is, they had no active supervision and no one who would come around and make sure people were actually using the controls they had learned about. So there was no harnesses for the falling at heights and there was no locking out and tagging out live wires, things like that. And it just goes to show that the reaction to, if you have an incident, to just spend a lot of money on an expensive consultant and to rehaul everything into the most perfect system is probably not the best thing.

Andrew Douglas: Well, in fact, it’s the biggest risk, isn’t it, because it’s not in the language of the people who are there, therefore, it won’t be used. Secondly, as far as reasonable practicability goes, when WorkSafe come in after the next incident, they look at what the policies and procedures-

Nina Hoang: Say, this is what you say-

Andrew Douglas: Remember, this is best practise, not reasonably practical. And they say, well, you fell short of that, therefore, you’re liable when the court will go, yes, you are. So, and again this is something that’s very common that Nina and I cover when someone’s had an incident or they’re worried about where they are, rather than dig deep internally and bring someone in to consult internally and grow bit by bit by bit, they come in and they just shove in a new set of rules and wonder why it makes no difference, no change. And then they do have an incident and the regulator just prosecutes them ’cause it couldn’t be easier.

Nina Hoang: Yeah. Because you’re got to remember, it’s not policies and procedures that build competency, it’s the practise and, you know, the relationship with the supervisors where they’re reinforcing the behaviour, saying, no, that’s wrong, this is how you do it, and teaching them or reinforcing good behaviour, it’s that repetitiveness that actually builds the competencies in your own-

Andrew Douglas: Like our own learning, and like when you learn language, it’s knowing what a vowel is, knowing what a consonant is, you learn to be able to pronounce the consonant at the end of the words so it’s understandable. That’s something that requires incredible repetition and so does safety, safety is a practise. Yes, it’s a science, but it is a practise that makes a place safe, anyway, look, that’s just a favourite thing for you and I to get going on. Let’s get onto the case study today.

Nina Hoang: So Chelsea was an engineer at Strut Structures. SS was a key provider of structural steel and aluminium for commercial construction in the commercial building market. Chelsea provided engineering advisory work to clients and internally for SS. Creighton was the Site Supervisor for SS at the Craigieburn site where 12 warehouses were being built by Big Shed Builders.

Super creative, Andrew.

Andrew Douglas: I know, I know. It was early this morning.

Nina Hoang: Chelsea was young, inexperienced, and had been on the end of some poor behaviour by workers on BSB. She had suffered wolf whistles and sexualised commentary from workers on site. Creighton had spoken to her only a few weeks before when he observed her crying. She had said she was not used to it but knew she had to toughen up.

Creighton spoke to the BSB Site Supervisor and said it had to stop. That supervisor, Tom, said he was sorry and undertook to speak to his crew. Tom did as promised, they laughed at him and walked away. On the 24th of May, Chelsea had been called to site to look at the weight bearing capacity and tensile strength of a roof strut, where Tom had observed some odd markings on the paint on the strut.

Chelsea went to the site foreman’s hut to sign the SWMS and was met by Johno, a welder employed by BCB, who smiled when she entered and said, “I’m happy to carry you up, Chelsea, you can sit on my shoulders.” His smile and approach to her spooked her. She quickly signed the SWMS, went outside on the roof, got in the lift, and went straight to the roof. Johno accompanied her.

He kept talking to her in a jovial but somewhat suggestive way. She felt very unsafe. Contrary to the SWMS, she did not attach a harness, despite the roof cladding being incomplete. Where there were gaps, there was railing. As she examined the roof strut through a gap in the roof with Creighton, Johno stood behind pointing at her behind to fellow workers and making offensive gestures simulating sex.

Creighton saw it and told him to leave but it was too late. Chelsea had seen it all, both Johno and the coworkers laughing. Her mind just closed down. She got up to leave when Creighton spoke and stepped straight into the gap, falling 11 metres onto a concrete floor.

Andrew Douglas: All right, so the questions, can I just say I’m not that creative, I just want you to understand, this is after 35 years of this. Bits and pieces of all of these stories have come from me from various sites, so I don’t want you to think this is something novel or new. That type of behaviour is fairly constant on building sites. And as women engineers and tradespeople and stuff emerge on site, they are regularly experiencing, my son who works in the construction industry reminds me of that and tells me of his reaction and difficulty in getting change from those behaviours.

But anyway, so that’s why it’s in there today. Is BSB, that’s the building business, liable under safety law and if so, for what?

Nina Hoang: Yeah, I would say so because, so BSB is the other entity.

Andrew Douglas: Yeah.

Nina Hoang: Yeah, so they didn’t make it a safe workplace for other people and they had management control of the site, so section 26-

Andrew Douglas: And 20, yeah, 23.

Nina Hoang: 23, yeah.

Andrew Douglas: Yeah.

Nina Hoang: Yeah.

Andrew Douglas: Okay, that’s in Victoria in a similar provision, so not only did that, they were seized with knowledge ’cause Tom is their connection. They’re seized with issues of to the acute nature of the effect of having it. And he did something but not enough. And therefore, because reckless endangerment deals with a person, not an employer, they could well be liable for that.

Nina Hoang: Could they have the knowledge just from her reaction to the other employees, like-

Andrew Douglas: No, the reaction is the knowledge that Tom got from Creighton, once Tom was seized with that, the organisation was seized with it.

Nina Hoang: Oh no, no, I agree with that, but if other employees were subjecting her to the behaviour and know that she’s uncomfortable by them, is that also imputed knowledge?

Andrew Douglas: Yeah, it is.

Nina Hoang: So that would capture heaps of everything.

Andrew Douglas: Yeah. Is SS liable under safety law and if so, what for? Well, look, unquestionably, exactly the same. So definitely primary duty breach. So 21, 22.

Nina Hoang: Reckless endangerment.

Andrew Douglas: And reckless endangerment. And I’m afraid for Creighton, his failure to actually say, look, don’t-

Nina Hoang: More questions.

Andrew Douglas: Yeah, sorry, oh yes, yes, sorry, we’ll come back to that. If Reagan was the owner and operations manager of SS, and Creighton had told him of the behaviours towards Chelsea and the impact upon her, could he be liable under safety law, and what for? If she died-

Nina Hoang: Industrial manslaughter.

Andrew Douglas: Reagan is lining up for industrial manslaughter. And Reagan is lining up for a couple of reasons and that is, he’s in an industry where this is a notorious fact. He’s been told there was someone who was having an acute reaction to it.

Nina Hoang: Yeah.

Andrew Douglas: He’s been told that is ongoing and he failed to make any further enquiry to determine she was safe.

Nina Hoang: Yeah, or tell them to, you know, move her to a different site or something.

Andrew Douglas: Yeah, I think-

Nina Hoang: Section 144 has-

Andrew Douglas: Yeah. I think, yeah, the likelihood of his prosecution for industrial manslaughter in this case is low on the basis of the evidence. A little bit more evidence and a little bit more knowledge and other complaints being made, much higher. Okay, let’s go to the next question. Could Tom and Creighton be liable under safety law? Yes, Tom under the section 25, obligations to another person.

Nina Hoang: Yeah, but also the fact that I’d still say reckless endangerment.

Andrew Douglas: Oh yeah, no, he’s out there.

Nina Hoang: He knew about it, and although he got them to stop, he clearly knew that they weren’t taking it seriously ’cause they laughed and walked away and he didn’t do anything further.

Andrew Douglas: Yeah. And look, Johno, despite him being an idiot, I think his likelihood is more of a section 25 breach, so a lower level breach. If Chelsea survived, what would the cause of action be? Well, she’d have multiple of them, besides the common law, workers’ compensation side, she’d certainly have the sexual harassment claims and the hostile workforce.

Nina Hoang: She could ask them to bring a safety prosecution as well.

Andrew Douglas: So there’s unlimited claims that Chelsea would have, but falling 11 metres means it’s unlikely she would’ve survived.

Nina Hoang: Oh God. Why would you leave on such a morbid note?

Andrew Douglas: Sorry, it’s my job. All right, so next week, we are doing the latest on secure jobs.

Nina Hoang: Yeah, all the new changes to the laws.

Andrew Douglas: Yeah, okay, thank you very much for watching. See you later, bye-bye.