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Things can get murky when lawyers and safety professionals work within silos—but when these two worlds meet, the real magic happens.

Macpherson Kelley Special Counsel Barney Adams and Principal Consultant at Action OHS Consulting Janelle Corbett discuss the impact they’ve seen when lawyers and safety professionals team up to support a client’s safety journey. In this article, they explore case studies that explore the importance of collaboration and how combined expertise can add significant value in managing workplace safety.

Legal Professional Privilege: A key consideration

Before diving into how safety professionals and lawyers collaborate, it’s essential to understand Legal Professional Privilege (LPP). Generally speaking, LPP protects confidential communications (written or verbal) involving lawyers or their clients that occur for the dominant purpose of:

• the lawyer providing legal advice to the client; or
• use in litigation that is either on foot or reasonably contemplated.

If the proper steps are followed, this can include information gathered during investigations or legal proceedings (including prosecutions by safety regulators). In the context of workplace safety, this means that both lawyers and safety professionals must ensure that information generated and shared in the process of assisting a client is not only accurate but also legally protected.

LPP is a vital tool that allows safety professionals, lawyers and their clients to work together openly and effectively, providing frank advice without the risk of information being used against the client. This privilege is especially crucial in audits, investigations, or reviews related to safety matters, allowing businesses to address potential risks without fear of negative legal repercussions.

What lawyers and safety professionals do?

Safety professionals
Safety professionals are trained to identify and assess workplace hazards and risks. Their role is to evaluate environments and tasks for potential dangers and then recommend practical controls to mitigate those risks.

The services they provide often include:

• Risk assessments and hazard identification.
• Audits and reviews of current safety systems and processes.
• Designing and implementing safety management systems, including health and safety policies.
• Incident investigations, often using specialised methods like the Incident Cause Analysis Method (ICAM) or Human Factors Analysis and Classification System (HFACS).

Safety professionals ensure that organisations comply with health and safety regulations and best practices, helping create a safer work environment for all employees.

Lawyers specialising in workplace safety
Lawyers with expertise in workplace safety law play a critical role in advising organisations on how to navigate the complex legal landscape of safety compliance.

Their role involves:

• Providing legal counsel on safety laws, regulations, and compliance requirements.
• Defending organisations in legal proceedings related to workplace safety, including defending prosecutions under health and safety laws.
• Managing relationships with safety regulators by assisting businesses with responding to improvement notices, prohibition notices, or other directives.
• Developing policies and procedures related to workplace health and safety, particularly in managing psychosocial risks like bullying, harassment, and mental health.

Lawyers ensure that businesses not only follow the law but also mitigate legal risks associated with workplace safety issues.

Now we understand the differences between to the two roles, how can lawyers and safety professionals work together to provide an informed and thorough service to clients addressing workplace safety concerns? Barney and Janelle discuss how the roles of lawyer and safety professional are closely intertwined.

Case study 1: A high-risk close call

A company received a visit and subsequent notice from the local safety regulator due to a high-risk scenario identified at one of their sites. The situation was so serious that it warranted immediate attention and action. The company’s external safety consultant advised them to consult their lawyer, given the recent history with a prosecution. This joint approach ensured they understood the potential legal consequences and how best to mitigate them.

Together, the lawyer and safety consultant conducted an investigation under Legal Professional Privilege, gathering evidence from subcontractors and interviewing key personnel. The investigation uncovered significant breaches in safety protocols, including over 20 instances of non-compliance within a short period.

With this crucial information, the lawyer advised that defending against potential prosecution would be difficult. Initially hesitant due to cost concerns, the company quickly understood the gravity of the situation and committed to implementing the necessary changes to prevent further breaches. Without the ability to have open and candid conversations within the protection of LPP, the outcome could have been far more detrimental.

Case study 2: A lawyer’s call for expert input

A company sought legal advice to modify an employment policy that would significantly affect the workforce. The lawyer recognised that there were substantial hazards and risks associated with the proposed changes, but needed more detailed information to assess the full scope. They suggested bringing in a safety consultant to review the current systems and identify potential risks.

The consultant conducted a thorough assessment, revealing that the existing system was already inadequate. Introducing additional risks without proper risk assessments and controls would increase the danger to employees. Thanks to the lawyer’s suggestion and the safety consultant’s expert input, the company was able to revise its policy with safety in mind, preventing potential harm and ensuring legal compliance.

Case study 3: Training on incident management and the legal and safety process

A manufacturing company wanted to better prepare its senior leadership team for managing workplace incidents. To do so, they collaborated with a safety consultant and a lawyer to create a specialised training course focused on the legal and safety requirements following an incident.

The lawyer led the session on the company’s legal responsibilities after an incident, including compliance with regulations, the potential legal consequences, and the importance of Legal Professional Privilege (LPP) in incident investigations. The session also covered the steps to take when dealing with safety regulators, such as reporting incidents and responding to inquiries.

The safety consultant provided practical guidance on the safety investigation process, including how to identify root causes, implement corrective actions, and prevent future incidents. They also discussed best practices for managing employee wellbeing after an incident, including return-to-work strategies.

The training was interactive, with case studies and scenario-based exercises that allowed the leadership team to apply both legal and safety perspectives to real-world incident management. By the end of the course, the senior leadership team was confident in handling incidents, ensuring compliance, and improving safety practices post-incident.

Best practices for lawyers and safety professionals

To maximise the effectiveness of their collaboration, lawyers and safety professionals should keep the following best practices in mind.

1. Connect early: Building strong relationships between safety professionals and lawyers before an urgent situation arises ensures smoother collaboration when the need for quick action arises.
2. Communicate regularly: Open and frequent communication from an early stage helps identify issues early, preventing them from becoming major problems.
3. Collaborate on risk management: Safety professionals and lawyers should work together to develop strategies for managing workplace safety and legal risks.
4. Consider the bigger picture: When advising clients, both professionals should take a holistic approach, ensuring that decisions align with both safety and legal requirements (including around the establishment and maintenance of LPP).
5. Learn together: Staying up-to-date with changing regulations and industry best practices allows professionals to address emerging issues effectively.

How and why to connect with lawyers or safety professionals

Why you should connect with a safety professional
There are several reasons why businesses should reach out to safety professionals, including:

• Risk assessment and mitigation: If you’re unsure about the safety risks in your workplace or need guidance on improving safety protocols, a safety professional can conduct an assessment and help implement improvements.
• Compliance and auditing: If your business is facing compliance challenges or has not been audited in a while, a safety professional can ensure that you meet all regulatory requirements and industry best practices.
• Incident investigation: In the event of a workplace incident, a safety professional can conduct a thorough investigation to determine the root cause and help implement corrective measures.
• Subject matter experts: In addition to general safety expertise, many safety professionals are also subject matter experts in specialised fields. These experts bring in-depth knowledge of specific safety concerns, which can be critical in managing risks across different industries.

Why you should connect with a workplace safety lawyer

Lawyers specialising in workplace safety law are essential for managing legal risks and ensuring compliance. You should reach out to a safety lawyer for:

• Facing legal challenges: If your organisation is under investigation or has received statutory notices from a regulator, a safety lawyer can advise you on your rights, obligations, and how to respond.
• Policy development and legal advice: If you need help developing policies that comply with safety regulations or need guidance on managing legal risks related to workplace safety, a safety lawyer can provide valuable counsel.
• Defending prosecutions: If your company is facing criminal or civil prosecution under safety laws, a safety lawyer can defend your organisation and minimise legal consequences.

As the case studies demonstrate, cross-collaboration is useful in many of the areas listed above. For example, safety professionals should always consider establishing LPP for an audit or investigation. Similarly, lawyers should draw upon the subject matter expertise of safety professionals when crafting policies or assisting clients to, for example, comply with improvement notices.

How to connect with safety professionals and lawyers

Building a relationship with safety professionals and lawyers before an issue arises is always a good idea. Start by:

• Reaching out for consultations: Many safety consultants and lawyers offer initial consultations to understand your needs and how they can assist.
• Attending industry events: Conferences, workshops, and safety seminars are excellent opportunities to connect with professionals in these fields.
• Building a network: Having a reliable safety professional and lawyer that know your business as part of your team is a proactive approach to ensuring ongoing compliance and risk management, particularly if an urgent response is required to address a critical incident.

Key take aways

Workplace safety is not just about meeting legal obligations — it’s about fostering a culture of safety that benefits both employees and employers. By collaborating, safety professionals and lawyers can create effective strategies to manage risks, ensure compliance, and protect the wellbeing of employees.

If you’re facing challenges in managing workplace safety, need legal guidance, or want to learn more about our experience in workplace safety, please reach out to connect with Barney Adams and Janelle Corbett. Together, safety professionals and lawyers can help create safer and more compliant workplaces.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.