Today’s correspondent asks
What are the legal considerations in having staff search for suspicious items during a bomb threat? Are organisations at risk of breaching WHS if they knowingly put staff at risk to search for a bomb or other harmful device?
The ANZCTC [Australia-New Zealand Counter Terrorism Committee] Improvised Explosive Device [IED] Guidelines for Crowded Places (https://www.nationalsecurity.gov.au/Media-and-publications/Publications/Documents/IED-Guidelines/IED-guidelines-crowded-places.pdf) outlines preparedness activities that include staff conducting searches using the ‘HOT principle’ [ie looking for items that are Hidden, Obviously suspicious or not Typical to its environment (p. 13)] and the response recommendations outlines considerations for various forms of evacuation.
Many organisational policies on dealing with bomb threats include initial activities for staff to conduct the ‘HOT’ search before an evac is implemented [and see ‘White Level Inspections, pp. 11-13].
I have come across several organisations recently who have decided to move away from the ‘HOT’ search instead going straight for an immediate full evacuation. Some of the reasons come back to their requirements under WHS legislation in providing a safe workplace. The argument is that how can they demonstrate they maintained a safe working environment when the risk increases, the real threat environment is unknown but potentially catastrophic.
There is an understanding that following the HOT principle has advantages for the organisation (quickly determining there is not device minimises disruption) and for emergency services (it’s easier to locate a suspect device if you are familiar with the environment and saves time for emergency services) but does this open the organisation up to being liable in the event a devise is activated while staff are searching who could have otherwise been a safe distance away?
When police and emergency service agencies search for suspect devices, they use highly trained personnel with specialised equipment often sending in robots to undertake initial assessments before risking life. Most organisations do not have the equipment to search or safety equip their staff in this threat environment, adding to the thoughts that doing so could be seen as not providing a safe workplace. It might be appropriate to ask staff to ‘eye ball’ their work environment and notice anything out of place while they are evacuating and report this once in the assembly area but extending the risk of exposure to staff who stop to search is where both the legal and ethical questions arise.
The model Work Health and Safety Act 2011 (adopted in every jurisdiction other than Victoria and Western Australia) provides (s 19) that a person conducting a business or undertaking (the PCBU):
… must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking…
Part of that obligation includes having emergency procedures in place (see model Work Health and Safety Regulations r 43). When deciding what is ‘reasonably practicable’ a PCBU is to consider (s 18):
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(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.
The risk of there being a bomb in a workplace is very small but no doubt higher if someone rings in a bomb threat. Evacuation carries its own risk and is more or less complex depending on the work environment. There cannot be a simple answer – it requires a risk assessment. The Improvised Explosive Device [IED] Guidelines for Crowded Places give clear guidance on that risk assessment including on the use of staff in ‘white inspections’. I would think that any employer that adopted those sorts of considerations would fall well within what is required by the Work Health and Safety legislation.
Some PCBUs that run a small enterprise may choose to simply evacuate everyone. IT’s a small exercise and if they’re shut for a few hours they can cope. Others that have to make a decision to evacuate hundreds of people and know they’ll be out of business for days if police or someone else has to search the building may well think doing a HOT inspection is worth the effort given that the chance of there being a bomb is actually quite small. Other PCBU’s may think they are a high-risk target in which case they would have other emergency procedures and staff training in place.
My correspondent says:
When police and emergency service agencies search for suspect devices, they use highly trained personnel with specialised equipment often sending in robots to undertake initial assessments before risking life.
I question whether that’s true? Do police too do a ‘white level’ inspection and we see the robots and bomb squad get into action when a HOT item is discovered? And if police are going to do a white level inspection they probably need assistance from staff familiar with the workplace as only they can identify what is HOT.
At the end of the day if there is a bomb, the risk to staff is not from the workplace but from the person who put the bomb there. I cannot see a work health and safety authority looking to prosecute a workplace for having the sort of emergency procedures that are envisaged by high level guidance such as the ANZCTC [Australia-New Zealand Counter Terrorism Committee] Improvised Explosive Device [IED] Guidelines for Crowded Places but at the end of the day it’s up to each PCBU to make their own risk assessment and develop their response in light of that assessment.
Conclusion
The answer again is that what WHS law is looking for is a risk assessment and a response in accordance with that risk. I can understand why some PCBUs would chose to simply evacuate but I don’t think that is required by WHS law. Doing a quick white level inspection, given that is supported by high level guidance, would in many cases be a reasonable response. Asking staff to carry a potential IED out of the building would not.
Australian Emergency Law 
I always train that “a threat is merely words that are designed to elicit a response.” It is the intent, motivation and capability of the person making the threat that indicate if there is a real risk to staff safety. Therefore when we develop emergency plans, a threat is NOT considered an emergency until it has been assessed, either by a competent person, or by a small committee of stakeholders.
If an organization defaults to evacuate, then they are probably giving the threatener the response they were looking for, disrupt business, cause stress and anxiety in staff and so on.
Depending on the risks determined it may actually be safer to stay inside the building; with modern security systems, access control and so on, it may be easier for the person with malicious intent to get every one outside so they are easier to target.
As the security threat environment becomes more complex, I strongly urge organizations to seek competent professional help in developing procedures and plans.
After my Nursing career was ‘put on hold’, I now work in Security for a large Sydney ‘iconic attraction’ …
The ‘White Level’ check is conducted at the start of every shift, and as an ongoing task throughout your entire shift. A specific & focused task initially, followed by ongoing ‘casual’ observation where-ever you are during the remaining period of your shift.
Eg. a walk-through of your allocated area to observe for anything HOT ( or not ).
Referring to any object …. is it hidden; is it obvious, and is it typical of what ‘should’ be in that area ? Once the area has been checked, it will be easier to detect something that suddenly appears, or wasn’t there previously …. such as a unattended large suitcase, leaking a fluid with a petroleum-like odour. The suitcase alone, may occasionally be something common to the area ( property of a tourist taking a photo close-by ). The combination of two or more ‘interests’ creates the risk that needs to be considered a ‘threat’ to initiate the removal of people from the vicinity.
if something is obviously out of place … the procedure starts with your supervisor, and then escalates as appropriate.
No one individual is solely responsible for any event or situation. Each staff member plays their part, and the situation is managed as per Policy & Procedures ( to cover WHS among other Legislation ).
The ‘Orange Level’ procedure brings in NSW Police and other additional resources, which will effect evacuations of both patrons and staff.
The only recent example in my workplace, was at the time the Lindt Café ( Martin Place Sydney ) was first considered ‘under siege’, and it was unclear what was else was happening in other ‘places of interest’ in Sydney CBD. My workplace was evacuated, based on what was reported in another location.
I totally agree with this. Whilst conducting Bomb and IED Threat Management training to clients, I always remind them that a risk assessment should already been conducted for this procedure. That is their responsibility in complying with the WHS Act. Evacuation is not always the best response procedure. It is a dynamic situation where all facts are assessed by the threat assessment team. Dispersion, shelter in place, part evacuation and or a full evacuation are all part of the tools in their toolbox. One of the most important piece of information is the INTENT of the perpetrator. To scare, to hurt, to damage, to kill or simply to watch. I served in the Federal Police as a Counter-Terrorism First Response officer and also in the Bomb Response Unit for 7 years.