The first 48 hours after a serious safety incident are the most important, but also the most demanding. Even experienced safety practitioners and in-house counsel can find themselves and their incident response process derailed by conflicting demands and priorities and the pressure for urgent responses.
We set out in this article some key tips and tricks to assist safety practitioners, in-house counsel and others involved to navigate and manage the incident response process for a serious safety incident. These tips apply to any serious safety incident, not just to high risk industries such as construction or mining.
We also provide information on the new Clayton Utz CU SAFE app, an interactive app that provides a comprehensive and practical step-by-step guide to the incident response process. The CU SAFE app can be quickly and easily downloaded to your mobile phone or desk computer.
The incident response process — complexities and competing demands
Safety practitioners and in-house counsel are often the first point of contact for managers who are on site at the scene of an accident. Similarly, the board and executive management want prompt updates from safety practitioners and in-house counsel, and rely on them for guidance and management during the incident response process, including for discharging the company or organisation's legal obligations, including in relation to incident reporting.
Experts advising a company or organisation face competing demands including:
- providing support to workers and their families;
- minimising risks to safety;
- minimising disruption to the business operations;
- providing updates to the board/management;
- dealing with regulators, including reporting obligations;
- notifying and communicating with contractors, principal and insurers;
- dealing with unions; and
- responding to and managing communications with the media.
These competing demands and priorities mean that the interests and safety of workers and the company's or organisation's legal position are at risk. It is important therefore, that practitioners are prepared, and able to respond quickly, effectively and efficiently in the event of a crisis. Of course, this is easier said than done, and there are a number of issues which, if not managed, can create legal and business/reputational risks.
While Australia is moving toward harmonisation of work health and safety laws, we still have a way to go. Victoria and Western Australia  are yet to adopt the model Work Health and Safety Act. Further, there are a number of different safety regimes across the States and Territories.
The plethora of safety legislation (including the application of Commonwealth safety legislation to some employers, and on Commonwealth land) and multiple and often overlapping regulators adds further complexity to both a company's or organisation's ability to understand and discharge its safety obligations, and the ability to respond to a safety incident.
Step 1 in the incident response process: initiate incident response team and plan
The first key step in the incident response process, is to initiate the incident response team and plans.
In relation to the incident response team, clear roles and responsibilities should be set. A communication protocol should also be set which:
- specifies internal reporting obligations;
- provides that written communication should be kept to minimum;
- outlines that any communications should not be speculative, for example in relation to the cause of the incident; and
- sets up privileged communications.
Legal advisers (including in-house counsel) will generally be responsible for setting these protocols, and for considering issues in relation to privilege. In the context of a serious safety incident, if privilege is to be established, it should be done as soon as possible. It assists to:
- allow any subsequent investigation to be thorough and designed to identify causes and corrective actions without increasing exposure to claims or prosecution; and
- limit exposure to potential claims.
In the context of initial communications, privilege allows the business and its personnel to make informed decisions to limit legal exposure. Legal professional privilege can apply to communications involving in-house counsel, however it is important to be able to establish the independence of the legal advice and any communications should be marked “confidential and privileged, prepared for the purpose of legal advice”.
Another key consideration in step 1, is to identify and follow the applicable response plan, for example the safety and health management plan. Generally, this will be done at the site level, however it is important for safety practitioners and in-house counsel to also identify the applicable plan and ensure that any relevant personnel at the site have a copy of the plan and follow it.
Step 2: managing the onsite response
There are a number of specific matters which need to be managed at the site level. Safety practitioners and in-house counsel play an important role in providing advice and assistance to those on site who are generally directly responsible for managing these important issues.
First, there are a number of legislative onsite actions to be implemented. These include:
- ensuring those in need receive medical treatment;
- securing the site to prevent unauthorised access, while ensuring it is safe and the risk of a further incident is minimised;
- ensuring evidence is secured and not destroyed until the regulator directs otherwise.
It is also important that support and assistance is provided to workers, not just those who may need medical treatment, but those who may have witnessed the incident and who may be traumatised by it. The impact of an incident can be reduced by arranging for a counselling team to be organised and available on site and for workers to be offered suitable leave options.
The presence of emergency services and a regulator on site create particular issues that need to be managed so that the health and safety of workers is not compromised, and the company or organisation does not increase its exposure to legal risk, for example as a result of discussions that may occur with a regulator.
In relation to emergency services and police, on site personnel should be reminded:
- not to obstruct emergency services and to follow any directions given, for example in relation to dealing with a worker who may be receiving medical treatment;
- to record the names of emergency services personnel that attend the site, as this will assist in being able to access information at a later time;
- to appoint note-takers to observe emergency services, who may also attend any site interviews conducted by police.
In relation to regulators, the first step is to confirm that the inspectors/officers are appropriately authorised to attend the site. The following are also some key tips to bear in mind when dealing with regulators:
- ask for copies of the regulator's protocols for dealing with legally privileged documents (hard copy and electronic);
- if there's no protocol, ensure the incident response team agree upon one (but in-house counsel or external lawyers should be consulted before a protocol is agreed) and that it is followed;
- keep the fact that an investigation is happening and other relevant information confidential;
- emails or other communications speculating about the incident or causes of the incident, internally or externally, should not be sent;
- ask to copy any documents the inspectors remove; and
- ensure the inspectors/officers provide a receipt for anything seized.
The powers of an inspector do differ slightly depending on the jurisdiction and the nature of the work involved, however, they generally have power to:
- enter and search the workplace without notice;
- take a thing, or a sample of a thing;
- examine, copy and take extracts from any record, book or document (but remember to assert privilege over any privileged documents);
- take photos, films, videos or audio recordings;
- require questions to be answered (we have set out some tips in relation to this below);
- seize evidence; and
- issue directions or other notices.
As noted above, regulators have the power to ask questions. Whether the person interviewed will be able to rely on privilege against self-incrimination will depend on the relevant jurisdiction and the nature of the work involved. However, the person should make an opening statement objecting to disclosure of any information that might incriminate them personally or that is privileged. Further, on-site personnel should be reminded to:
- answer questions directly — stick to yes or no answers if the question permits this response;
- answer based on personal knowledge, not what others might think or what the company or organisation's view might be (unless the person is authorised to speak on company or organisation's behalf);
- make sure they understand the question and ask for it to be repeated if necessary;
- take time to answer and do not accept words used in the question if they disagree with them; and
- not speculate!
In-house counsel or external lawyers in particular, and management will play a key role either in providing advice on these issues remotely, or even attending on site to manage the response hands on, including attending any interviews with regulators or emergency services.
Step 3: reporting obligations and communications
Safety practitioners are often responsible for providing advice and making decisions in relation to whether an incident is reportable. As mentioned earlier in this article, there continues to be a range of different legislation that applies in Australia, and an incident that is reportable in one state or territory may not be reportable in another. Deciding whether an incident is reportable is often a difficult task and it is imperative that up-to-date legislation is reviewed and considered and where needed, advice from in-house counsel or external legal advice is sought.
The Clayton Utz CU SAFE app provides information in relation to general WHS, petroleum/gas, electrical and mining incidents across all states or territories, including whether they occur on Commonwealth land. This can be a useful tool to assist you to identify whether a particular incident is reportable (and to manage the incident response generally).
When an incident is reported, it is important to:
- report factual events;
- not speculate about the cause of the incident; and
- not make admissions or assumptions.
In addition to reporting to regulators, the following communications/notifications may also be required:
- internal requests for information;
- WHS committee/representatives;
- communications with the workforce;
- media response, which should be carefully prepared, factual and not include statements of blame or admissions of liability;
- freedom of information applications, if applicable;
- other stakeholders eg. landlord/tenant, joint venture partner;
- ASX/corporate reporting obligations if relevant;
- mutual obligation holders;
- communications with an external legal adviser; and
- consultation with relevant unions.
Step 4: investigation
After managing the immediate response, it is important to consider whether an investigation into the incident is required. If an investigation is required, it is important to decide early whether the investigation should be subject to legal professional privilege. As outlined above, a privileged investigation can assist to ensure the investigation is comprehensive or in other words it is conducted on a “warts and all” basis without fear that the findings of the investigation may increase the company or organisation's exposure to prosecution.
If the investigation is to be subject to legal professional privilege, it must be for the dominant purpose of seeking legal advice or preparing for anticipated litigation. If a privileged investigation is implemented, all communications should be marked “private and confidential, subject to legal professional privilege” and any investigation material such as photographs etc. should be kept in a folder marked in the same way.
Another important early consideration is to determine the scope of the investigation. The scope of the relevant “business or undertaking” will be relevant in determining scope. Any investigation should be consistent with:
- the terms of relevant agreements with contractors; and
- the businesses contractor management strategy.
For example, if your business is a principal, the investigation should not extend to matters that are not within its “management and control” as set by its contractor agreements and strategy, namely matters that are the contractor's responsibility to manage. Doing so has the potential to increase legal risk.
Of course, the purpose of a safety incident investigation is to find and remedy causes of incidents to prevent future incidents occurring. After the investigation, lessons learnt should be clearly documented and corrective actions implemented to prevent a recurrence of the incident.
Tools to assist with the incident response process: how the CU SAFE app can help
The incident response process is extremely complex and there are a number of competing demands and priorities which needed to be managed in a very short time frame, to ensure the health and safety of workers and to reduce legal risk.
This article provides only high level comments in relation to the incident response process and tips for your organisation to respond quickly and effectively. However, to assist with this incident response process, Clayton Utz has developed “CU SAFE ”, an interactive app that provides a comprehensive and practical step-by-step guide to the incident response process, from when the incident occurs through to commencing an investigation to ensure you follow best practice and statutory requirements. CU SAFE covers, in an easily accessible way, the steps outlined in this article, including:
- immediate links to regulators websites, forms and contact details;
- managing critical incident response teams and plans;
- securing the incident site and providing support to workers;
- internal and external notification, including to families and the media;
- dealing with regulators and police, from the first call-out through to interviews, in your state or territory;
- statutory reporting obligations in your state or territory for the specific type of incident; and
- tips for managing an investigation.
Remember, the app can be downloaded to your mobile phone or desk top computer.
The app also has offline capability, so that it can be accessed in remote areas.
This article was first published in the Employment Law Bulletin, Vol 21 No 4, June 2015
 Western Australia released the draft Work Health and Safety Bill 2014 in October 2014 and public comment on the Bill has now closed. Back to article