The “head scratcher” in due diligence

I’ve been having a “hmmm(?!)” moments with a wee bit of the due diligence stuff in clause 27 of the Work Health Safety Bill (WHS). I’m interested to hear what you people reckon about it.

Here’s the rub: I don’t think it’s possible to get a clear idea of what it means to comply with the due diligence obligation as set out in clause 27(5)(a); in turn, this means the obligation is, for all practical purposes, unenforceable.

Below is a slab of the preliminary words and the provision, with a bit after it for context:

“(5) In this section, due diligence includes taking reasonable step

 (a)  to acquire and keep up-to-date knowledge of work health and safety matters; and

 (b) to gain an understanding of the nature of the operations of the business or undertaking…”. [emphasis added]

In the process of going through the WHS stuff to see what changes I need to look at for a client’s SMS (well in advance of the Victorian move over to the national laws) I decided to look at the due diligence stuff first.

A quick read of sub-clause (5) shows there is a whole bunch of stuff on the sort of things you’d expect a “mindful” organisation to be doing to keep senior managers up-to-speed.  There isn’t an issue with paragraphs (b) through to (e); they deal with good mindfulness stuff for their business and undertaking. It’s para (a) that has quizzical compliance issues.

It’s pretty obvious that a safety management system ain’t gunna work properly if senior managers don’t have “an understanding of the nature of the operations”, don’t have the resources and processes to manage safety, etc. 

All of those things are listed in paragraphs (b) – (e). But there is an important element to the sensible stuff in those paragraphs: they are all categorically linked to mindfulness in the context of the business or undertaking. The tricky bit about paragraph (a) is that there ain’t any nexus with the business or undertaking.

A wise counsellor passed on an excellent tip when I was having a frustrated rant about trying to get a bunch of people to see what a particular provision we were drafting actually meant.  Her tip was, if the people are having trouble understanding the law, they should read it.

It’s something I use a lot. It’s all about reading the words carefully and without any of those common legislation-reading filters that whisper “I want it to say” or “it probably means”.

Reading exactly what 27(5)(a) says I see that every defined officer of the business or undertaking has to acquire and keep up-to-date knowledge of work health and safety matters generally, not just in the context of the business or undertaking.  That is a big call.

How do I work out when I’ve taken enough “reasonable steps” to make sure my officers have enough knowledge of all sorts of health and safety matters?  How extensive should be the learning outcomes for an information or training program I might put together? Given the liability stuff that comes with due diligence, should I putting in place a very comprehensive assessment component to any training, and will it be sufficient to just use a competence measure for that assessment?

I reckon I’d spend a minimum of an hour a day, every day of the week going through stuff like Graham Dent’s excellent WHS LinkedIn blog discussions, Kevin Jones’ equally excellent SafetyAtWorkBlog, monitoring a coupla customised Google News Alerts on OHS, reading the plethora of newsletters on OHS topics, popping into Oz regulators web sites, the EU OHS sites, the ILO OHS sites etc.  Add to that all the ordinary research I’m doing as part of me work as an OHS practitioner and trainer on a day-to-day basis, and I reckon I’m making a fair dinkum effort to keep up to speed on OHS stuff generally.

But, would I stake me ute on a guarantee that, in absolute terms all that monitoring and research on OHS info ensures I have acquired, and kept right up to date on all work health and safety matters over the huge range of things that could be described as “work and health and safety matters” right around the world?  No way, I love me ute.

And what would be your reaction if you were at a safety conference and a speaker starts the presentation with “Hello, I have acquired and kept up-to-date on everything, anywhere, on every OHS matter in the entire world; I’d like to talk about that” ?  I suspect you’d be tempted to nip out and call a CAT team to take the speaker away, safely.

Draftin’ up laws has a parallel to cooking.  Despite the big range of principles, methods and rules about ingredient combinations, there is one over-arching rule that has to prevail when whipping up a dish: it has to taste good. Drafting laws has gobs of principles that have to apply to the process, but the job also has one over-arching rule: the law has to be fair and reasonable.

Is it fair and reasonable to expect an officer of a firm to acquire and be up-to-date on all knowledge about all health and safety matters that may have nothing to do with their business? I don’t think so.

Does it make sense to have such an obligation on an officer when there is a bunch of entirely sensible and good things they are obliged to know; as listed in paragraphs 27(5)(b) through to (e)? I don’t think so.

Given the difficulty in working out just what is needed to satisfy the clause 27(5)(a) obligation, will it be possible for OHS regulators to enforce it? I don’t think so.

Should there be a provision in legislation, intended to be adopted as a Principal Act, that needs to be “fluffed over” because its inferred obligation is a bit wonky and so will probably just get ignored?  Absolutely not.

Col Finnie was WorkSafe Victoria’s Principal Legislation Officer (OHS) from 1989 – 2000 he now operates his own OHS advisory and training business - fini:OHS pty ltd.  Col has contributed previous articles to SafetyAtWorkBlog.