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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Safeguard Magazine

Legal viewpoint—The document dilemma

GREG SMITH warns that H&S documentation that does not align with what happens in practice could be a liability in court.

One of the most common criticisms of safety management is the over-reliance on paperwork, at every level: from the safety management systems, through to policies, procedures and safe working instructions, down to frontline tools such as checklists, JHAs and Take 5 or other pre-start checklists.

Paperwork has a place but it has its limits. Documented safety systems can actually make our workplaces less safe and also create legal risk. Here, I want to talk about safety documentation as evidence.


The creation and collection of paperwork is often sought to be justified because the organisation needs evidence of what it is doing to manage safety. That might be true, but evidence is a two-way street. Paperwork can be used against an organisation as easily as it can be used by it. At the same time, it is possible to defend an organisation after an accident even where there is no paperwork.

Rather than demonstrate an organisation’s safe work practice, in many cases safety documentation is nothing more than a database of non-compliance revealing a lack of due diligence. In Australia, several recent coroner’s inquests and prosecutions have commented on the extent to which safety processes such as checklists, JHAs, pre-start meetings and similar safety processes (all documented) have deteriorated to become simple tick and flick exercises, which undermine safety.

For example, in a 2016 inquest the Coroner found:

Operating crewmembers [said] that a complete adherence to the checklist was time-consuming. Consequently, their usual practice was for random crewmembers to conduct cursory checks only on the key items relating to lubrication, cooling and work head mechanisms. The entire checklist would then usually be marked to indicate compliance.

I agree with the investigator who was of the view that this ‘tick and flick’ practice, over time, eroded the assurance that was intended to be provided by the checklist.”

Paperwork revealed the organisation’s lack of due diligence because they didn’t appreciate that their system had deteriorated.


Health and safety paperwork is helpful as evidence only if it aligns with what you do. If it does not represent what is happening in practice, more often than not it will be a liability.

Of course, paperwork is only one type of evidence. We don’t just look at the paperwork – we look at what happened, and we talk to people. And if there is an incident, we don’t just look at the paperwork for that job, we will look at the paperwork for every time that job has been done, and for other work tasks.

If the “collection” of paperwork is poorly done, inconsistent, inaccurate and doesn’t reflect the way work is actually performed, then it becomes easy to argue an organisation wasn’t paying attention to safety. The paperwork becomes a liability.


For example, training records. At best they are evidence that training has been given. Seldom are training records evidence a person understands the training, much less that the training was implemented and enforced.

Post-incident, documentary evidence that training has been provided needs to be tested. For example, the quality of the paperwork itself. Sloppy or poorly completed paperwork can be used as evidence of ineffective or insufficient training.

Then there’s the training content. Was it correct? Did it address the risks associated with the incident? What do people say about the training. Did they remember anything? What do they tell investigators?

Given the choice between a piece of paper that says somebody has been trained, and a person who can clearly articulate the hazards associated with their work and how they are supposed to be managed, I would take the person every time.


Organisations often make assumptions about the efficacy of H&S management based on metrics which count paperwork. A lead indicator based on 100% of training being completed is only evidence of the “activity” of people attending training. It is not evidence that people understood the training, that it has been implemented in the workplace, and that it is effective to manage the risks it was designed to manage.

The same argument goes for any documented process. If the process – be it a risk assessment, safe work procedure or anything else – does not align with what happens in practice, the documentation becomes evidence that can be used against the organisation to argue it was not paying proper attention to safety.

Perth-based Greg Smith is a director of WAYLAND LEGAL. His book Paper Safe was published in 2018.

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