In my book Paper Safe, I wrote about the disconnect between “process” and “purpose” in the management of health and safety and how the focus of health and safety management appears to be primarily concerned with completing and counting safety activities. This focus on completion means that in many cases organisations do not understand if the safety activities achieved the outcomes they were designed for, or whether the safety activities contributed to the overall safety outcome of the organisation – for example, creating a safe workplace.
As an example of this disconnect, consider the JHA process. A JHA, or Job Hazard Analysis (the same tool goes by many names, but JHA will do for now), is a team-based risk assessment designed to be completed by a work group before they start a task.
At its simplest, the idea behind a JHA is that the team will:
While it is very rare to find an organisation that overtly says what the purpose of the JHA process is, based on my discussions with workers and supervisors over the last 30 years, in broad terms, the purpose of the JHA is to:
At its core, the JHA is really a risk assessment, collaboration, and communication tool.
What has happened in many workplaces is that the activity around JHAs has become an indicator of safety compliance or even safety efficacy. However, it is only the activity that is considered.
The measure of success in a JHA process is that a JHA is completed for each job when a JHA is required. In other words, we measure the activity – the completion of process. We do not test or confirm the purpose of the JHA, and whether, for example, the right controls to manage the hazards have been developed, or that they are understood and effectively implemented by the team members.
Unsurprisingly, this same phenomenon is becoming more manifest in the management of officers’ due diligence obligations.
Officers have always had responsibilities for workplace health and safety, however for many people these responsibilities have been crystallised under Work Health and Safety legislation – for example section 27 of the Work Health and Safety Act 2020 (WA) (WHS Act)
The offices obligation is described in section 27(1) as:
If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (my emphasis added)
However, almost universally the focus on due diligence is concerned with subsection 27(5), which describes 6 “elements” of due diligence.
Subsection 27(5) says that due diligence includes taking various reasonable steps, for example subsection 27(5)(a) which says that due diligence includes taking reasonable steps to acquire and keep up-to-date knowledge of work health and safety matters.
It is not uncommon to see approaches to due diligence framed entirely around these elements, and indeed some of the elements in some programs have been characterised as “obligations”.
However, taking this sort of checklist/obligations approach to the elements set out in subsection 27(5) both mis-represents an officer’s obligations for due diligence under the WHS Act and very quickly leads to the disconnect of purpose and process.
The elements of subsection 27(5) are a non-exhaustive list of elements of due diligence – it is not due diligence. Doing all of things described in subsection 27(5) is not the same as meeting your obligations to ensure that the PCBU complies with their obligations.
“Doing” due diligence activities is not the same thing as complying with section 27. The activities must inform the officer about whether the PCBU is meeting its obligations.
Unfortunately, much of what is sold as due diligence is rapidly devolving into the same process focussed, mechanistic and bureaucratic model of safety management that infects so much of health and safety today. In the same way that organisations counting JHA’s to understand if they have been completed, rather than to analyse whether the purpose of the JHA has been achieved, so many due diligence processes have deteriorated into activity checking exercises which count due diligence activities, but do not analyse and consider whether those activities contribute to compliance with the obligations – understanding whether the PCBU is meeting its obligations under the WHS Act.
Indeed, many organisations struggle to define what it means to meet their obligations under WHS legislation, and if the organisation cannot do that, how can an officer meet their due diligence requirements?
Whenever any process is being proposed to an organisation in the name of due diligence, the critical question for that process is how, and to what extent, it will inform the officer that the PCBU is meeting its obligations under the WHS Act.