The model work health and safety act and the security industry

By John W. Pettit.

Imagine this: It’s 11 a.m. on a Monday morning and you are sitting in your office reviewing the latest sales figures for the month.  It’s been a good month. Sales and profits are up, costs and wages are down.  Suddenly, the phone rings and you answer it.  On the other end of the line is the sergeant-in-charge of the local CIB office, inviting you to come down to meet with him. Wanting to be the everobliging security manager of the local cash-in-transit business, you agree and immediately set forth for the local police station.

Upon arrival, you are greeted at the counter and swiftly ushered into a back office. The door is abruptly shut behind you.  Inside the room, you find three burly plain-clothes police officers seated before you. It starts to dawn on you that this is not the standard meet-and-greet that you were expecting.

After the customary exchange of pleasantries, you discover that these police officers are members of the armed robbery squad.  Prior to any further discussion, the sergeant informs you that this is actually a confidential meeting and that you  must agree to be bound by secrecy regarding what you are about to be told.

After agreeing to this condition of secrecy, you are informed that the police have received credible and reliable information from an informant that your cash-in-transit operations are going to be subjected to an armed hold-up attempt this coming Thursday, by one of Australia’s most wanted armed robbers.

The robbery is scheduled to take place during a cash delivery to a bank at the local shopping centre and the police want to enlist the help of your company to arrest  the offenders.  This convicted armed robber and his gang have been on the run for several months, during which time, they have been responsible for a number of armed hold-ups throughout the state.  The police are desperate to capture the gang and put them behind bars for as long as possible. Rather than making a pre-emptive arrest for attempted armed robbery, the police want to catch the offenders ‘in flagrante delicto,’ in order to obtain the maximum jail time for them.

Having gained your consent to secrecy, the police enlist your help in the execution of their plan. They  ask that your company make the cash delivery as normal. They tell you that on this coming Thursday, members of the armed robbery squad will be secreted in the vicinity where your armoured vehicle usually parks, waiting for the offenders to strike before making their move. They also instruct you that you are not, under any circumstances, to inform your cash-in-transit crew about either the sting operation or the intended armed robbery.  Reluctantly,  with some reservations, you agree.

Thursday morning comes.  Nervously, you sit by the phone in your office waiting for the telephone call from the police advising that the operation was a success, while your cash-in-transit crew, unaware of the events before them, make their cash delivery as planned.

They pull up and park in the usual location near the bank. The driver alights from the vehicle and surveys the area. He then gives the ‘all clear’ sign and the other guard alights with the cash in hand.  They barely walk a dozen paces when they find themselves confronted by three men brandishing shotguns, wearing balaclavas and demanding the bags of cash. The guards freeze in fear. Then, without warning and from out of nowhere, several more men dressed in black and carrying firearms, appear screaming, “POLICE, DROP YOUR WEAPONS”.

Confused and paralysed with fear, the guards stand mute, watching these terrifying events unfold. The robbers readily give up their weapons, are handcuffed and immediately taken away.  Shaken but unharmed, the guards are briefed by the police at the scene about the sting operation.  Finally, you receive the long-awaited phone call from the police, thanking you for your assistance.

Sounds like a script from some B-grade Hollywood movie. Yet this is the very scenario that one manager and two cash-in-transit officers of a national security company found themselves faced with some years ago.  This story emerged from the 1997 hearings of the Industrial Relations Commission of New South Wales’ inquiry into the cash-in-transit industry.

By now, you might well be asking yourself, what does this set of circumstances have to do with occupational health and safety in the security industry? No one was injured in the course of the police sting operation although one of the guards did, as a consequence, later develop post-traumatic stress disorder.

Well this is a textbook case of an employer ‘exposing’ employees to needless risk of injury.  According to the provisions of OH&S legislation, an employer need only ‘expose’ an employee to the risk of injury for a breach to occur. If you also believed that these events were a result of an unforeseeable and uncontrollable criminal act, and not an occupation health and safety matter, you are not alone.

Prior to the 1997 Industrial Relations Commission inquiry, WorkCover New South Wales also believed, in error, that such events were “criminal acts,” and not OH&S matters.  However, WorkCover was compelled to reconsider its opinion in light of the inquiry.

WorkCover’s opinion was not unique, as it had also been widely held by many security industry participants for a considerable period of time.  One possible reason that this false belief was able to prevail for so long was in part due to the fact that injuries arising from criminal acts were not considered recordable or reportable events under OH&S legislation.

Accordingly, these events were able to fly under the OH&S radar until they were highlighted during the course of the industrial relations inquiry into the cash-in-transit industry.  This change in opinion has now led to the prosecution of a number of employers for failing to provide adequate security against threats arising from criminal acts.

Examples of these prosecutions include: a security firm prosecuted for the death of a guard who was shot while performing cash-in-transit duties; a hospital prosecuted for failing to provide adequate lighting in a car park where a patrolling security guard was stabbed during the course of an assault; and a bank which was prosecuted for exposing their tellers to the potential risk of an armed robbery.

To better understand why these matters are now recognised as OH&S issues, we must first consider what constitutes a workplace injury. Clearly, any risk of injury arising from the undertaking of a business in a workplace is a workplace risk; irrespective of whether or not that risk results from a criminal act.

An illustrated case would be an act of workplace violence. Pursuant to OH&S legislation, an employee need only be exposed to a risk by an employer, in order for a breach to occur. No injury is necessary.  The element of ‘exposure’ under OH&S law has far-reaching implications not only for the cash-in-transit sector, but for the security industry as a whole where controlling risks arising from criminal acts are concerned.

Moreover, emerging developments in OH&S legislation also have major implications for the controllers of workplaces as they too will have to take greater action to ensure employees and visitors to their workplaces are not exposed to risk of injury resulting from criminal acts .

This may include acts of terrorism. Under the new OH&S laws, designers of workplaces will not escape liability.  For example, a security consultant who designs a hotel change booth that needlessly exposes an employee to the risk of robbery, might well be held liable for a breach of OH&S legislation. The introduction of the new, model Work Health and Safety Act throughout Australia in 2012 will further cement the nexus between safety and security in the workplace.

The security industry which serves as employer, designer and controller of the workplace, now needs to start looking outside of the box when identifying and controlling these types of risk. Clear precedents have now been set. Employers, designers and controllers of workplaces should consider that they are now on notice.

Employees also have a part to play in controlling risks by not blindly accepting risks to their personal safety that arise from inadequate security arrangements.  This is acutely relevant to the crowd controller sector of the security industry.

No one should go to work expecting to be involved in activities that have the potential to cause them some form of injury.  Crowd controllers are no exception to this rule. In fact, under OH&S legislation, employees are forbidden from engaging in activities likely to cause injury to themselves or others.

This casts doubt over the way in which crowd controllers will operate in the future. In fact, engaging in ‘dangerous and unsafe practices’ that might result in injury to themselves or a patron while undertaking their duties as a crowd controller, could well result in them being personally prosecuted under OH&S legislation.  Crowd controllers will have to develop new and innovative ways of ejecting problematic patrons without resorting to the use of excessive, physical force or face the consequences.

The new, model Work Health and Safety Act will introduce new penalties for breaches of the Act.  In addition to financial penalties, the Act will introduce criminal convictions with terms of imprisonment of up to five years for the most serious breaches.

As mentioned earlier, employees also have a part to play in workplace injury prevention.  Employees who believe that they are being unnecessarily exposed to risks should they in the first instance, speak to their employer in an attempt to resolve the matter. Failing this, employees should raise their concerns with their State Workplace Health and
Safety Department.

The new Act contains certain protections for employees who exercise their rights to a safe workplace. Under the new, model Work Health and Safety Act, employees are entitled to cease or refuse work that is unsafe.  Employees choosing to exercise their rights according to the model Act, are protected from discrimination. Safety at work is for everyone, including employees of the security industry.

John Pettit has been a security practitioner for more than a quarter of a century.  As a mature-aged student, John attended Edith Cowan and Bond Universities where he
read Security Science, Criminology and OH&S.  He is also a Board Certified, Protection Professional and an active
member of ASIS.  John welcomes correspondence from other security professionals.  John can be contacted
on 0418 720 187 or by emailing jpettit@security-advisor.com.au. Visit John’s website at www.security-advisor.com.au

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