With the goal of assisting employers develop a comprehensive list of the OH&S information they need to disseminate and records they are obliged to make and keep (often mandatory) under the OH&S and other ancillary legislation and some times for 5 years, RMH Schaffer offers a methodology.
A proper set of records can assist with developing a due diligence defence. The examples listed are illustrative and not comprehensive.
Everyone knows employers must publish certain OH&S information to their employees (especially as regards chemical exposure). And similarly, record certain OH&S data ( especially accidents and injuries). The problem is, nowhere in any Australian legislation is there a list of all of these requirements.
So where to begin and what is one to include? It is also well known that these records are useful evidence of due diligence, so they are important. But what are the records that must by law be made and kept and in some cases for 5 years?
The obvious place to start is with the common Law requirement (little complied with) since confirmed by Case Law and if anything, expanded. The common Law requires that employers identify and list all foreseeable hazards and risks to be found in their Plant and on their process lines.
This requirement applies to both physical and psychological risks. The lists have to be comprehensive and must be created with input from the operators. Once these lists are completed, then they can be used to consider each identified hazard or risk as regards what does the Law state as regards records to be kept- whether set out in a Regulation, Industry Code or Australian Standard.
Example: re Plant and process lines - The new Standard AS 4024.1301 – Risk Assessments and records. This is only a starting point.
In terms of the Laws’ requirements (S3 (e) of the Act in NSW and S20 in Victoria) employers are required to adopt a risk management approach to ensuring compliance. This means adopting a systematic management approach to ensure compliance with the three legs of the risk management principle.
The above method of working through all identified foreseeable risks and correlating the identified risk against the Laws’ compliance requirements in this case records is a systematic method of achieving the goal.
In this way it can be made sure that all of risk exposures are comprehensively addressed and all of the information dissemination and record keeping duties identified, as required by the OH&S law.
Further examples of records and what needs to be covered are now examined. One of the first set of records to establish is a list of all licenses permits, local Council consents such as a Development Application (and the conditions attaching thereto), driving licenses including - forklift and crane drivers licenses, even motor car and truck drivers licenses, etc.
These may be held in a number of different locations but this is a good opportunity to bring these all in to one folder. Develop a Matrix for listing these and recording when do they expire, are their conditions attaching, etc.
As regards information dissemination the employer should refer to in NSW, S 8 (d) and in Victoria - Sections 21(2) (e); S21(4) (a) and (b) also S21 (4) (e) and S31(2)(a).
The next crucial step is to access Workers Compensation legislation since that requires the keeping of records in re accidents and worker injury. The Insurer in NSW, and the Agent in Victoria supply free of charge the correct format documentation.
But employers all too often have this information in their offices, yet, no one knows where it is kept or what it is to be used for.
Notification to the Regulatory Authority / Insurer in both NSW and Victoria of accidents is important and not only does this need to be done in the correct format but also according to the Insurer’s time compliance requirements.
Another two major categories of record keeping relate to the safe use, storage and transport of dangerous goods and hazardous substances.
In setting up records and systems it can be helpful to consider the following questions:
- Does the record keeping system conform to the legislations’ requirements?
- Is the necessary information regarding accidents / illnesses maintained?
- Are records regarding first aid treatment maintained?
- Are inspections of Plant, equipment recorded and stored?
- Are risk assessment information recorded and stored?
- Are details of employee consultation recorded?
- Are Plant specs and applicable AS standards recorded
- Are chemical substances/ DG lists maintained up to date?
- How to follow through from O H & S Committee meeting Minutes to conformance and sign off?
- Are full lists of training carried out maintained?
- Are all repairs / maintenance work re Plant / equipment recorded?
- Are the records re Emergency Management Plans current?
- Is fire fighting capability current and adequate?
The first five questions apply regarding controls also
In NSW under the Regulations see Clause 143(1) which sets out the requirement re keeping of Plant records while in the Regulations see record-keeping page 298. While in Victoria see S 21(4) (b).
Keeping of appropriate records can assist greatly in ensuring that OH&S safety management system is current and operating efficiently. It should be first warning signal that something is not as safe as it was or needs to be. It will alert one to changes and the new hazards that have arisen and perhaps need attention i.e. better control.
It was revealed in a story in ‘The Economist’ dated March 17 that a new blood test may be required by employers before an employee will be permitted to work night shifts. It appears that genes affecting the bodies regulating clock come in two forms. One that makes some people more able to handle night shift and one that does not.
Employers may in future need to conduct blood tests and keep records in the case of an employee having an accident and the employer is charged with negligence since the worker should not have been working the night shift at all.
Finally, a useful tool to create is a Matrix where along the Horizontal Axis the frequency of making Inspections, records, risk assessments, controls is listed and along the vertical Axis the type of record that must be made in compliance with the Law, ancillary law or in order to create a due diligence defence can be recorded.