Health and Safety: The plain truth

25 September 2016 / by 10089 / Legal, Overview, Safety
There are dozens of hazards, in flight and on the ground...

There are dozens of hazards, in flight and on the ground… Picture by

If you believe that H&S is a load of rubbish, give me five minutes to change your mind. It might save your skin – or a fortune in legal costs.

Health and Safety aims to reduce the risk of injury or death. You may grizzle about how officialdom tries to do this, but bottom line, it makes sense to avoid injury or death, or wrecking your valuable aircraft.

I have read the H&S Act 2015 and realised that preventing harm is the responsibility of the business operator. The Act requires operators to do all in their power to assess the risks or hazards associated with the business and eliminate, isolate or minimise them.

Erecting a sign that says “Watch your step” is not always sufficient to prevent people from tripping up. It’s your responsibility to remove the potential danger. If you can prove that removal of the hazard is impossible, then it’s my understanding that the sign would have been the most reasonable step. This is consistent with Section 22 of the Act which states:

In this Act, unless the context otherwise requires, reasonably practicable, in relation to a duty of a PCBU [ person conducting a business or undertaking]set out in subpart 2 of Part 2, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—

  1. a) the likelihood of the hazard or the risk concerned occurring; and
  2. b) the degree of harm that might result from the hazard or risk; and
  3. c) what the person concerned knows, or ought reasonably to know, about—
  4. the hazard or risk; and
  5. ways of eliminating or minimising the risk; and
  6. d) the availability and suitability of ways to eliminate or minimise the risk; and
  7. e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Applying this to an aviation business, there are dozens of hazards in flight and on the ground in support of flight operations.   The “in-flight hazards” are easy to prevent if you comply with the law. All commercial operations need an Air Operator Certificate which will only be issued if you have shown adequate means by which you can and will comply with the CAA Act and associated Rules. In many cases, this involves an exposition which you can write yourself or get a contractor to do it. If you make sure that all your flight operations are in accordance with the exposition, you should be safe from the H&S Act.

Simple as that – but easier said than done. Too often we rush and forget things, for example, failed to enter a SARTIME in the flight plan, or busloads of passengers drop in and you haven’t time to weigh all the “heavies” and the investigation after a mishap shows your C of G was outside limits. You’re in the gun.

With fare-paying passengers on board, you reckon you can short-cut through a saddle with 50 feet or so to spare below the cloud base. You’re in the gun again because you just broke the visual flight rules. If you end up in the trees and hurt people, you’ll rue the day. Might even cost you your bank balance and your business. And for what? Saving a few minutes?

The fact is that if you breach the law and someone gets hurt, the H&S Act will bite you. Remember, you and the aircraft are the hazard and the judge will hold you responsible. The choice is: give up the business or operate within the law.

Essentially, H&S is all about caring. So how do we care?

“She’ll be right” is out and consideration for your own safety and that of others is in.   Don’t do anything that has the potential to cause harm. Think things through and comply with the standards that are in place. Compared to many industries, aviation is fortunate in having procedures, drills and rules based on experience that make it relatively easy to perform safely and to avoid harm. Abide by them rather than improvise.

If you perform a task within the constraints of the applicable laws, rules and procedures, you stand a good chance of avoiding a conviction under the H&S Act if something untoward caused harm and you’d done your best to avoid it. The Court decides whether an offence has been committed, not the CAA or OSH, which are tasked with investigation and prosecution. Unfortunately, it’s difficult to predict a court’s decision.

So work backwards. Look at your business and the way it’s run; then imagine standing in the dock wondering how you could have avoided being there. In plain terms, cover your butt – which is not all that difficult if you work in accordance with the exposition based on CAA Rules (e.g. Part 119), Standard Operating Procedures and Health & Safety procedures. And then insist that all personnel conform and monitor their compliance.

Some operators are quite capable of writing all three documents but many are not. The latter can contract a number of exposition writers who will customise manuals for them; some include H&S procedures.

Reasonably practicable care can be achieved but it comes at the cost of constraints that can be time-consuming and frustrating. This applies particularly to long-established operators who have relied on their own safe and effective practices for years and want to be left alone to do their thing. Sadly, times have changed. Management is now held responsible for the safe conduct of the business and failure to carry out their responsibilities can result in closure, as well as hefty fines and/or incarceration.

If you breach the law and someone gets hurt, the H&S Act will bite you

If you breach the law and someone gets hurt, the H&S Act will bite you

Staff are similarly saddled with responsibilities that may be quite alien to them. The position of Safety Manager is critical in the organisation and for large operators this can normally be filled by a full-time qualified person.   Small operators often don’t have that option but it’s acceptable for the CEO or Operations Manager to hold the position provided the person is thoroughly familiar with the H&S concept and can provide effective supervision on a daily basis.

Staff must accept the principle of strict compliance with procedures and duties that are part of the operation and understand that they are responsible not only for their own health and safety but also that of others. Management and staff must be open to constructive criticism, suggestions and recommendations.   Feedback and effective communication are essential.

Just in case you consider yourself badly done by, H&S rules are far more stringent in many other countries. My niece in France says that her domestic helper must wear a safety helmet if she needs to use a small ladder to clean the windows. It’s the way the world is moving and the quicker we all get used to the constraints, the better.

A fundamental fear is that the “opposition” might grab your work if you believe that a job can’t safely be done today. With everyone affected by the H&S Act, including your clients, it shouldn’t be too difficult to convince them that, like them, you have to work under the Act. We’re all in the same boat and only a fool will disregard the consequences that have driven quite a few people to distraction.

What to do? Write H&S procedures and measures that are most likely to convince a judge that you have taken reasonable steps to prevent injury or death that may have occurred in association with your business. If you feel that’s difficult, there are people who can assist you. Within the next few years, the CAA SMS will be in place and that includes Health & Safety. So the effort you put in now for H&S won’t be wasted when the time comes for you or your contractor to write an SMS exposition.

If I were still operating an aviation business, my screams would have been the loudest about the seeming nonsense and extra work associated with H&S. But in the end, I would have had enough sense to calm down, look at it, consider the consequences of non-compliance, write the required procedures and make sure every staff member complies. The Chinese have a saying for it: “Bend with the wind”.

Re-reading this article, it looks as though I’m advertising for the CAA, me of all people. I haven’t changed really but feel that most of us don’t see the risk of non-compliance; some operators have already been badly hurt and my effort here aims to stop that from happening to you.