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.
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.