How to Not Get Stumped by WHS Legislation

WHS legislation and regulations are complex, thick and significant. Understanding them is a specialist’s domain, and so is templating their application. That’s why we’re here. But that doesn’t mean it’s easy to play the game at the business, project or worker level. Today, in the first of a three-part series, we’ll focus on principles, practices and some memory cues that you can use. As a lover of cricket, I’d like to use cricket illustrations (the sport, not the insect) to make the journey and the learning process more enjoyable and effective. 

To begin with, just how thick and significant is WHS legislation? Let me answer that question with a question:

Q: If you had a cricket ball in one hand and a cricket ball in your other hand, what would you have?

A: You’d be holding a bloody big cricket (chirp, chirp).

WHS legislation is bigger than that! 

This article will address the first two of six principles, with a bit of cricket thrown in to help us connect with the sweet spot. In the following two articles, we’ll bring it home and then call it stumps. We’ll look at:

1. How to Not be Hit for Six  |  Don’t Make a Bad Situation Worse.
2. Playing your Wicket  |  WHS Legislation in Your Workplace.
3. Being Cricket  |  Embodying the Principles of Work Health and Safety.
4. Catching Someone Out  |  WHS Requires Some ‘Sneaky’.
5. Avoiding the Run Out  |  Teamwork and Communication Essentials.
6. Off Your Own Bat  |  Rewarding Initiative.

We will explore these themes using some examples of WHS legislation breaches. Sadly, these are only a sampling of the tragic and often unnecessary consequences that can flow from WHS non-compliance. This is why we need to play the game well!

1  |  How to Not be Hit for Six  |  Don’t Make a Bad Situation Worse

On the cricket pitch there is nowhere to hide, and it can become a very lonely place. When you're a bowler, this is especially true, and every now and again, somebody hands you a beating. I still play and bowl, and I certainly know what it's like to be smacked around the ground. Can I admit that humiliation messes with a man? Your mind can start playing tricks on you, and you start getting looser, not tighter in your bowling. That's when the over boundary hits begin - and even humiliating sixes. That's when bad goes to worse, and worse can move to woeful. There's a WHS equivalent to this.

In our first example of a WHS legislation breach, a casual truck driver was struck and killed by a forklift (the details are shown as endnotes in case you want to look further).

The reversing forklift crushed him against the tilt tray of a truck, critically injuring him. The ambulance was then wrongly informed about what happened, and the man's daughter was told the accident occurred due to her father's negligence. A cover-up ensued. When the Workplace Health and Safety Queensland (WHSQ) investigation took place, they lied again, including the identity of the forklift driver. While the accident was terrible and highly preventable, the response was deemed criminal. Legislatively speaking, it amounted to industrial manslaughter. It was a horrific example of the wrong response.

In the courtroom, at least, the directors pleaded guilty to the charges. The court found the moral culpability and the gravity of the offence was significant. There were concerns in terms of the accident itself and the behaviours that took place afterwards.

They were fined $3 million, and the two directors were convicted and sentenced to 10 months imprisonment (which was later reduced due to mitigating factors).

Would this have been elevated to manslaughter if they had not engaged in those post-accident behaviours? We won't know. What we can say, is that they were faced with a crisis and they behaved irresponsibly. They got it for six!

• How are your accident response procedures? 
• Have you ever conducted a scenario exercise to practice your response?
• What is your commitment to the truth when in crisis?

Are you ready for the game to turn on you? Are you prepared for an immediate risk to health, life, property or the environment - right now? These are questions worth answering BEFORE an event takes place. 

Do Your Incident Procedures Comply with the Legislation? 

The WHS legislation doesn't specifically detail HOW incident responses are to be planned. It does, however, put the responsibility squarely on you. We can help you prepare for the worst and respond to a crisis if it happens. There are three resources worth considering.

• Incident and Injury Management Policy ($27.00 EX)
• Incident and Injury Management Procedures ($62.50 EX)
• Incident and Injury Report Form ($13.50 EX)

This Incident and Injury Management Policy is a two page document that outlines the rules, and the responsibilities of managers, supervisors and workers in regard to reporting, recording and investigating incidents and injuries. 

​​​​The procedures document will help you inform and train your workers so they will correctly respond and report to an incident or injury. Reporting, investigating and even worker’s compensation claims are addressed.

The reporting form prompts you to ensure all necessary details are reported, many of which can be otherwise missed, such as person(s) involved, witnesses, any damage, injuries and treatment.

These three documents are included in our WHS Management System or can be purchased individually and used as a stand alone document.

2  |  Playing Your Wicket  |  WHS Legislation in Your Workplace

It's already been hinted at, but let me now state it plainly: cricket, like business, is a brutal game. In both cricket and business, there are factors you cannot control but you must respond to. In cricket, the pitch is one of those realities you have to work with - whatever state it is in. What are the realities of your business wicket?

Perhaps you are old enough to remember Tony Greig's 1980's and 90's pitch reports (I certainly am). He would stick his pen into the pitch to show the size of the cracks, graphically showing how bad some of those pitches got. The bowlers and batsmen had no choice but to deal with the problem exactly as it presented itself. A good batsman plays the wicket they have!

Like the pitch, WHS legislation is merciless. Inspectors may allow some adjustment for particular circumstances, and prosecutors might even have some grace for you based on efforts or past events, but God help if you don't make a decent attempt. 

The example we shared earlier was a case in point. These directors now have the distinction of being Australia's first industrial manslaughter convictions. They have this dubious title because they didn't deal with the accident correctly, and they didn't deal with their workplace situation in the time leading up to the accident. They didn't play the pitch they had. 

The court found:

• There were no safety systems in place, 
• The directors knew that there were significant risks, 
• Little attempt was made to assess or control the circumstances, and 
• Adjustments and remedial steps were available.

These were not momentary or exceptional lapses, and a man is dead now as a result.

• How’s your wicket? 
• Are you dealing with the situation you have?
• Is there anything you know you need to address, but you’ve been putting off?

WHS Legislation Demands That You Play Your Wicket

Compliance is massively aided by using our WHS Management System. If you follow its guidance, you'll be able to develop a system that plays to your wicket.

But what if you're not ready to buy a complete system?  In that case, the following products are an affordable place to start complying with safety legislation. These tools will enable you to make a precise assessment of how you're doing overall. It's a 'check-up from the neck up', so to speak.

The three solutions are:

• WHS Audit Checklist ($62.50 EX)
• WHS Audit Register ($27.00 EX)
• WHS Legislative Requirements Register ($27.00 EX)

The 15 page WHS Audit Checklist enables you to check then identify compliance or non-conformances (minor and major). It uses the AS/NZS 4801:2001 criteria and has easy to use checklists. It’s a great assessment tool!

We then recommend recording your finding to the WHS Audit Register and using it to develop your action plan to remedy non-conformances.

Finally, the WHS Legislative Requirements Register records WHS Acts, Regulations, Standards, Codes, Guidance Notes and more. The three-page template provides a ready to use table that includes category, revision, location and distribution data.

As with all our products, they are:

• Fully compliant with WHS Legislation,
• User friendly,
• Instant download,
• Fully editable MS Word format, 
• You can add your logo, and 
• They can be ready to use - on your wicket - today!

The ‘Six and Wicket’ Questions

In closing, permit me to revisit the core questions: How are your accident response procedures? Have you ever conducted a scenario exercise to practice your response? What is your commitment to the truth when in crisis? In other words, are you confident you won’t be “hit for six”? 

Also, as you think about your business: How’s your wicket? Are you dealing with the situation you have? Is there anything you need to address, but you’ve been putting it off? Are you playing your wicket? Are you dealing with the realities you have?

With those engaging questions, we'll call it stumps for this article - as our business realities go on. Two more innings to come.

If you’d like to discuss any of these products, other solutions, your current situation, or perhaps explore the option of our comprehensive Work Health and Safety (WHS) Management System, phone 1800 304 336 or fill out the contact form to request a callback.

Endnote  |  An Example WHS Legislative Breach

Who:  Brisbane Auto Recycling Pty Ltd   

Where and when: Queensland, May 2019.

Event: A casual truck driver was struck and killed by a forklift.

WHS Legislative Charges: Industrial Manslaughter, section 34C, Work Health and Safety Act 2011 (Qld); AND a category 1 offence, section 31, Work Health and Safety Act 2011 (Qld) for failing to comply with their duty, as an officer of the Company, under s 27 to ensure that the Company complied with its work health and safety duty under s 19(1)..

Consequence(s): The death of Mr Barry James Willis. The Company was convicted and fined $3 million. Directors Hussaini and Karimi were sentenced to 10 months imprisonment.

More Info: Here and here.