Risky Conversations video series

In our recent book, Risk Conversations: The Law, Social Psychology and Risk, Dr Rob Long and I discussed a range of safety topics and our views on how things done in the name of safety had the effect of compromising safety. The discussion, which formed the basis of the book, also generated a 22 part video series that explores a wide range of topics in the area of risk.
All of the videos in the series are now available for free, and you can access then at the following link:

Wayland Legal

From 4 April 2018, Nexus Lawyers (WA) Pty Ltd will change its name to Wayland Legal Pty Ltd.

Wayland Legal is a boutique Western Australian based law firm specialising in workplace health & safety and employment law.

As part of the change, I will be moving my online articles and videos to my new website, which you can find HERE.

I will keep the My Safety Thoughts blog online so people can access past articles, and there will be a link to My Safety Thoughts on the new website.

Go to the website, www.waylandlegal.com.au to find out more.

Process or Outcome?

Today I was reading a LinkedIn post lamenting the state of health and safety management, evidenced by too many “safety stickers” on a piece of machinery.

A commenter noted that the situation was “absolute madness“, which doesn’t keep anyone safe. Much of the conversation from there was focused on whose “fault” it was and we ended up with all of the usual suspects in the firing line – insurers, lawyers, consultants and so on. Probably quite justified too.

To my mind, this issue illustrates the disconnect apparent in health and safety management between “process” and “outcome“. It seems to me that health and safety management is obsessed with process – the way that we “do” safety. This obsession means that every few years somebody reinvents the way we do safety, or the way we do parts of safety. As evidence of this you only need to think of the transition from safety culture, to safety 1, through to safety 2 and now safety differently – with god only knows what in between. On a micro level, just think how many iterations of the JHA you have seen during your working career.

What makes this more interesting is the process doesn’t really matter. How you “do” safety is not really an issue. What is important is whether you can show your process achieves the outcome it was designed for.

The table below lists a series of cases looking at the “outcome” of understanding hazards. The “processes” were all different: documented, undocumented, buddy systems, on-the-job training and so on. But even where the processes were the same this did not determine the decision – the decision was determined on whether the outcome, and understanding of hazards and risks, was achieved.

Process v outcome

So, the question is not how fancy, new or shiny your process is. The question is whether it achieves the outcome.

Update: Access to the Perilya decisions

A few people have been in touch with me about my recent posts on the Perilya decisions;

What are our obligations to careless workers?

Are your JHAs worthless?

When is a person conducting a business or undertaking?

It seems when you try to access the decisions through the links in my blog, or otherwise try to find them online, they are coming up as “restricted”.

I have been in touch with Caselaw NSW who have told me the decisions have been temporarily restricted to make amendments.

I will provide another updated once the decisions are available, and make any amendments to my articles if the amendments make any difference to my original comments.

Regards.

What are our obligations to careless workers?

When you survey the range of safety commentary online, it is hard to escape the view that workplace health and safety is still primarily concerned with the behaviour of individual workers, and incidents are the consequence of careless individuals.

In my experience, this thinking does not align with any credible safety management theory, and it is not consistent with an organisation’s obligations under health and safety legislation. At its simplest, a worker’s individual carelessness makes no difference to the obligations of their employer, other organisations or other individuals under health and safety legislation.

The fact that a careless, individual worker did not meet their obligations under health and safety legislation, is no answer to the question of whether you met yours.

In the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28 (read decision) the Court canvassed the issue of careless and disobedient workers in detail.

By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate an instrument a load cell which measured the weight of ore in the flask.

The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

While Mr Pollard was working, the weights and basket fell out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.

The Court said:

In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers.[my emphasis added]

Drawing on precedent cases, the Court made several observations:

  • Health and safety legislation is designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry:

The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable…

  • Foreseeability” is relevant, and it is not generally practicable to take measures to guard against a “detriment to safety” that was not reasonably foreseeable:

It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

  • If there is a foreseeable risk of injury arising from the employee’s negligence while working then the employer must take this into account.
  • The extent and standard of training an employer must give will depend upon the nature of, and circumstances under which, work is performed. It is not always necessary to have classroom-based instruction or work manuals. However, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training.
  • It is not enough to simply give employees instructions about health and safety “an employer must also ensure that those instructions are carried out”.
  • But, when an employer has established and implemented a proper system, then this can be an answer to the conduct of individual workers:

Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety.

In the PBHL case, the Court rejected any argument that carelessness by individual workers limited PBHL’s liability:

I do not see any scope for the application of a principle in this case that would limit the defendant’s liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA.

Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not. [my emphasis added]

The Court found procedures and instructions for the work were incomplete and workers were directed to start work when the JSA process was deficient and the JSA document was inadequate. The employer should have known both those things.

A common misconception is that safety prosecutions are all about identifying “fault” – who was at fault, or most at fault, when an accident occurred. This is not the case.

Employees who breach known safety procedures may be at “fault”. Indeed, individual workers and supervisors are prosecuted following workplace accidents. But an employees fault is no answer to the question, “did the employer meet their obligations under health and safety legislation?”.

The fact an employee breached safety procedures – even procedures they were aware of, does not prove an employer provided adequate training and supervision, nor does it prove an employer diligently enforced its systems of work.

Are your JHAs worthless?

Worthless” is not my phrase, and I make no assumptions about the JSA process as it is applied in your workplace, but I am interested in whether your organisation could pass the “worthlessness” test set out in the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28.

By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate a load cell which measured the weight of ore in the flask.

The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

While Mr Pollard was working, the weights and basket came out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.

The case canvassed a range of issues in safety management, which I will look at in later posts, but for now, I want to consider the roles of the Job Safety Analysis (JSA).

One of the allegations pleaded by the prosecutor was PBHL failed to “assess the adequacy of the Job Safety Analysis”.

The Court took its direction for what a JSA required from PBHLs own documents:

I start by looking at what is required of a JSA. This may be discerned in the first instance from the defendant’s documents.

What is required in a JSA is detail that shows:

  • how the hazards were identified;
  • how the risks were assessed;
  • how the decisions around necessary controls were made.

The Broken Hill Job Safety Analysis Procedure set out six steps in the JSA process.  They included:

  • A JSA must be conducted in a team setting.
  • A JSA should be done on the job site
  • Task supervisors must ensure compliance with the requirements for a JSA.

None of these requirements were met.

PBHL’s procedures said:

The success and value of the risk management process is determined by the quality of the consultation and communication process. Success hinges on involving the right people and using the right information, expertise and experience. Hence, identification and participation of stakeholders is critical.

The Court found that there was “no consultation or communication with the correct stakeholders”.

PBHL’s procedures said:

The less formal nature of … JSAs can present a serious risk in itself. It is essential that these tools are used carefully. If a significant or uncertain risk is missed or not properly managed, participants may be lulled into a false sense of security. Some things to look out for include:

  • New tasks or one that is being done in a new place or using a new method

In relation to this, the Court said:

This was a new task using a new method. The “serious risk” warning should have been heeded.

The Court closely examined PBHL’s own requirements for its JSA process, ultimately finding the process to prepare the JSA was seriously flawed, the JSA itself was inadequate and:

The risk assessment did not involve all those doing the work and was not communicated to all of them. It stood the risk of being and was, for reasons I give, “next to worthless”.

It is also worth noting, the Court’s use of the term “worthless” is not random. The Court has adopted the language of “worthless” from PBHL’s own documents.

PBHL’s Risk Management Guideline gave several directions about risk management, for example:

A risk assessment is worthless if it does not involve communicating with the correct stakeholders.

And

Ultimately a risk assessment is next to worthless if it is done in isolation without involving those doing the work, or not communicated to all those doing the work or affected by the work.

The Court did not have to look for language to criticise the JSA process, it simply adopted PBHL’s own views.

PBHL employees accepted the inadequacy of the JSA, for example, Mr Harris, a shaft and fixed plant supervisor:

… agreed that it was not appropriate for one person to simply to write out a JSA and then present it to others without those persons having input into its development. He agreed that a JSA should be prepared as a team, particularly as some members of the team may not be aware of, or understand each of the steps of the task. He noted that this was an important consideration, particularly as there might be persons with different subject expertise performing various parts of the task. He also agreed that it would be important to have all members of the team involved in completing a JSA because if only one person completed the JSA, there was a risk that a step would be missed in the process, or a hazard missed or an appropriate control measure not identified.

The point to take away from a case like this is not the specific technical failures of PBHL, or how the work was planned or implemented. Rather, the case highlights:

First, organisations are accountable for what they say in their documented processes.  If you are going to describe an in-depth, potentially convoluted process for preparing documents like JSAs, you need to recognise you are prescribing the standard against which you will be measured.  Write your documents with the end user in mind to give workers some chance of following them.

Second, regardless of what you document, you need to understand if it is implemented and effective.  Although it is not discussed in the PBHL case, it is extremely unlikely this case was the first time the JSA procedure was ignored in so many fundamental ways.  The history of workplace accidents in Australia is fairly compelling – frontline risk assessment documents like JSA’s have little meaning to frontline workers and are often seen as an exercise in bureaucracy: A paper process workers have to complete before the work can commence.

The question that comes out of a decision like the PBHL case has nothing to do with PBHL.  The question is, how do you know that your JSA procedures are any better in practice?