CU Safe Q&A

Shae McCartney, Claire Smith and Hilary Searing
12 May 2022 Time to read: 4 MIN

Even experienced professionals and management can find their incident response process derailed by conflicting demands and priorities – which is where CU SAFE comes in.

You're launching an updated version of CU Safe – which we debuted in 2015 as a first-of-its kind interactive critical incident response tool. What’s changed since then?

In March, we were pleased to reintroduce our award-winning CU SAFE (Serious Accident, Fatality and Environmental Incident Response Guide). CU SAFE is a joint initiative by the Safety and Environment teams, and was designed to help clients respond quickly and decisively to a serious safety and/or environmental incident.  

While CU SAFE has been well received by our clients and praised as a valuable tool, we felt it was time to refresh our software, reintroduce our clients to this tool and showcase its many advantages. There was also some legislative updates required.

Who is CU SAFE targeted towards?

CU SAFE provides a step by step, practical comprehensive guide for dealing with serious safety and environment incidents. It was developed to give peace of mind that if an incident occurs your teams have the tools to manage it both on site and in compliance with its regulatory obligations.

While it is suitable for everyone to use, it is specifically targeted towards:

  • Management and site operations;
  • In-house Counsel;
  • General Managers; and
  • Your safety/environment professionals, including your Health, Safety & Environment managers.

As well as the physical and psychological impacts on those involved in a serious incident, what are the other potential consequences of not having a proper response management process in place?

An employer's main responsibility is to ensure, so far as is reasonably practicable that the workplace is safe and that anyone working in or visiting the workplace is not exposed to uncontrolled hazards or harmed by the work. Those undertaking potentially polluting activities also need to protect the environment from damage. Even experienced professionals and management can find their incident response process derailed by conflicting demands and priorities yet failure to effectively respond to and manage a serious safety or environmental incident can substantially increase legal risk for clients, including the risk of prosecution by a regulator, and can jeopardise the health and safety of a client's workers and aggravate environmental harm.

Besides significant reputational risk and loss of earnings, companies risk further damage to their subsequent incident investigations by not properly managing the response process. These include:

  • inaccurate evidence gathering;
  • creating omissions when taking action; and
  • tarnishing relationships with stakeholders through the investigation process

CU SAFE provides the tools for clients to respond to an incident thoroughly and with confidence, thereby reducing these legal risks.

The top three mistakes we see companies make in the first 48 hours include:

Safety

  1. Privilege – not setting up legal privilege over communications & documents
  2. How to deal with the immediate conflict between protecting the safety of staff and protecting the legal position of the individual and company
    – self-incrimination issues
  3. Reporting – stick with the facts
    – speculating on what caused the incident or who's fault when the investigation hasn't concluded

Environment

  1. What immediate action needs to be taken to address environmental harm/pollution?
  2. Is the incident reportable?
  3. How to respond to regulator requests and questions.

Are you seeing an increase in reportable incidents, and are particular sectors more at risk? What's driving this?

While the statistics show that there is an increase, we are also seeing a spiked increase in the depth and extent of the scrutiny by Regulators and Investigators. There is increased pressure from public and political stakeholders for the Regulators to be doing more, in an attempt to keep employees safe and to look after the environment.

There has also been a dramatic change recently in community expectations and a desire by communities to hold companies accountable, which has largely been driven by the ESG momentum among the corporate world.

This is being seen across all sectors, but particularly the mining, resources and manufacturing sectors which were at a higher risk of reportable incidents to begin with.

How does CU Safe fit in the context of heightened scrutiny of corporate ESG strategies.

Many of our clients are exploring the comprehensive implications of environmental, social and governance (ESG) issues on their risk management processes, including incident management. While your reporting obligations in relation to a major incident are included in your ESG strategy, it is far more than that. Managing ESG risks is quickly becoming an important element of managing serious incidents, but there are also strong links between strong ESG performance and effective crisis management before, during and after a crisis

Serious incidents are multi-faceted and you need a team that can respond seamlessly not only to protect the Company and its officers but also to avoid incidents reoccurring and to support the workplace in what can be an extremely challenging time for them.

CU SAFE provides our clients with the confidence that they have ensured the safety of their employees and minimised the risk to property and the environment, all the while adhering to the relevant legislation. It provides a step-by-step process to assist management team during a very stressful time and provides a framework that is designed to protect you.

What has been the most significant impact of CU SAFE to date?

The significance of the impact CU SAFE has had on clients can be demonstrated through a number of real-life examples:

  • A significant and distressing incident where the Regulator was on its way to interview witnesses. Shae walked the client through how to download the app and its key features. The client was quickly able to give employees information on their rights and what to expect in the Regulator interview, clarified the company's obligations and reporting requirements to third parties. The client received no adverse media, the business has been able to move forward and safety issues have been constructively addressed with employees.
  • A client in the construction industry had a pollution spill on a site with numerous different contractors. As a result of this incident, our client was potentially exposed to significant regulatory action and potential prosecution. By using CU SAFE, our client was able to quickly and easily notify the relevant regulators and its key stakeholders and ensure the pollution was quickly cleaned up without any harm to the environment.
  • A client in the mining industry has used CU SAFE in relation to dealing with regulator questions as part of a statutory compliance audit. He especially appreciated the tips for dealing with regulators and the fact that the content is in plain English rather than legal jargon.
  • A client recently used the app to respond to a pollution incident which occurred during a major construction operation which also gave rise to a potential health and safety incident as polluted water got into the on-site amenity facilities. The client was impressed with how user-friendly and comprehensive the app was and thought the tips were fantastic.

Key features of CU SAFE

  • Free to download
  • Full coverage across Australia – you can choose your State or Territory to get the specific laws and processes that affect you
  • Not just one type of incident – it covers serious safety and environmental incidents
  • Use it anytime, anywhere – it works on any device, and doesn't need internet access
  • Clear and easy to navigate – because when there's no time to waste, you need the answers quickly
  • Help when you need it – you can call or email Clayton Utz specialists in WHS and Environment law who know your company and the regulator directly from the app 24 hours a day, seven days a week

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Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.