Some time ago I wrote a post about the value of criminal prosecutions for safety breaches as part of effective safety management. The post is available HERE.
A discussion about the nature of “safety prosecutions” was recently held on LinkedIn following an article I posted about the acquittal of engineers involved in the Deepwater Horizon disaster in the Gulf of Mexico (see for example the CSB Report). You can see the LinkedIn discussion HERE.
Given the limited scope to expand a discussion in LinkedIn comments, I promised to write a more fulsome article, which I have attempted to do below.
The starting point for discussion about safety prosecutions is, I think, to understand what prosecutions are designed to achieve.
Inevitably in any discussion about safety prosecutions there is a multiplicity of views about what people perceive the process is designed to achieve. These include, compensation, punishment, deterrence and the opportunity to “learn lessons“.
In Australia at least, it seems unlikely that the current prosecution regime would fulfill any of these perceptions.
First, occupational safety and health prosecutions are not designed to compensate anyone. The workers compensation regime and/or civil proceedings (i.e. claims in negligence) are designed to compensate people for loss caused by workplace accidents and incidents. They are an entirely separate legal process, and compensation does not form part of the consideration of a criminal occupational safety and health prosecution.
Neither are occupational safety and health prosecutions designed as an opportunity to learn lessons. Prosecutions are typically run in relation to a very narrow set of charges and “particulars“. For example, if it is alleged that an employer failed to do everything reasonably practicable in that it failed to enforce its JHA procedure then the prosecutions about whether:
- The alleged failure occurred; and
- It was reasonably practicable for the employer to enforce that procedure.
There are no lessons about what might constitute a good JHA procedure, or a good process for ensuring that the procedure is followed.
As a more practical matter, prosecutions are very limited in their ability to teach us lessons because inevitably any decisions are made several years after the event occurred. In many cases decisions are not even published so that even if there were lessons that could be learned, they are not available to us.
Theoretically, prosecutions are designed to punish wrongdoers and provide both specific and general deterrence, that is, deter the guilty party from offending again and act as a warning to all other parties not to offend in the future.
Again, the evidence is far from clear that occupational safety and health prosecutions achieve this outcome, insofar as there does not appear to be evidence that a robust prosecution regime decreases the number of health and safety incidents.
For example, the ninth edition of the Workplace Relations Ministers’ Council Comparative Performance Monitoring Report issued in February 2008 show that Victoria and Western Australia, who had the lowest rate of prosecutions resulting in conviction at the time, also had the lowest incidence rates of injury and disease and enjoy the greatest reduction in average workers’ compensation premium rates over the three years to June 2006.
Of course, as with all statistical information, there could be any number of reasons for this finding. My point is not whether the finding is right or wrong. My point is we do not have the evidence and we have not had the discussion.
Although, the limited efficacy of criminal proceeding should not come as a surprise. The Robens Report published in the 1970s, an on which modern Australian health and safety legislation is based, identified:
The character of criminal proceedings against employers is inappropriate to the majority of situations which arise and the processes involved make little positive contribution towards the real objective of improving future standards and performance.
One of the ironies inherent in this discussion is that it is often the safety industry that is at the vanguard of the charge calling for significant prosecutions and directors to be sent to jail in the event of workplace accidents. This is the same industry that thrives on selling poor quality incident investigation processes based on a “no blame” culture.
It is interesting that the industry can say on one hand that we can only achieve effective safety outcomes where we don’t seek to blame, but that if something serious happens (i.e. someone dies) then there must be someone to blame and they should be prosecuted with the full force and effect of the law.
To me, this discussion is another example of the opportunity lost during the “harmonisation” of Australia’s health and safety legislation.
Rather than an informed discussion about how health and safety legislation could achieve the best health and safety outcomes, there seemed to be a broad assumption – not argued at best, unproven at worst – that, notwithstanding 20 or more years of history, prosecutions, large fines and personal liability was the best approach to improving health and safety outcomes in Australia.
I have personal views about what might be a better process to deal with those workplace accidents that are serious enough to warrant a “public response”, but this article is not the place to describe them. Rather, I hope that this article might prompt the safety industry to think more carefully about what it wants from its regulations and regulator and not use every workplace tragedy as an opportunity to promote the language of blame as an appropriate response to workplace accidents.
We cannot continue to promote safety using the message of fear and blame and then be surprised by how difficult it is to shift culture in an organisation.
My Safety Thoughts 
Hi,
The last paragraph sums up what is wrong with the current approach to safety. It seems to me that everyone spends more effort in not being held liable and not in the line from the big stick, rather than ensuring that the workers performing their tasks safely.
I think the key issue lies within the differential treatment given to safety and consequences of safety breaches, especially in relation to fatalities and life changing injuries. This differential treatment extends from the organisational space where safety is often nothing more than an optional bolt on attachment (despite pledging the opposite via fancy slogans), all the way to legislative system in place, supposedly there to ensure safety of people is not compromised in the never ending quests for more profits.
Safety even gets treated differently between public ‘accidents’ where we see lots of media coverage, and workplace accidents where often there is not even an article in the newspaper. And then we have representatives of some regulatory authorities and organisations making statements how a particular industry is a ‘dangerous’ one, creating perception that all that can be done is being done but human losses simply cannot be avoided. True, they are not saying this literally but this is the underlying message. Treating safety differently is where our problems are.
Do we go down the path of trying to prevent traffic fatalities by providing positive feedback to drivers as a behavioural modification method and removing liabilities and penalties? Would this work or are we talking about utopian concepts. I think the key is to do both.
Issues with safety prosecutions are very real, but the solution is not in (yet again) treating safety differently, but rather in fixing the broken legal system which is cosmetic in nature and is perceived as fairly easy to navigate without any serious personal consequences, despite raise in penalties. With all respect to Robens, his comments seem to have been given from the standpoint based on fundamental assumptions present in capitalistic and legal systems in operation and they simply neglect individual accountability present in all other areas. Difference is made right there and it drives a completely different approach to safety prosecution and half-baked systems we have seen since. Those key assumptions are root causes of the whole issue.
Safety is about operational decision making process. This process is executed by people driven by two critical and often opposing factors. One is the very nature of the business (never ending strive towards more profits) and associated pressures and rewards and another is the consequence of hurting the people in the process. Of course, things are much more complex than this; however on the basic level those two factors remain in place. Remove the consequence and the pendulum which is already too far to one side will go even further. It is a human nature to lean to immediate and tangible versus uncertain and intangible. To be important in operational decision making, neglect for human life must carry heavy personal liability, there is no other way around it.
In which area of our life on this did we remove consequences and personal liability from public policy and had success?
The question is, why treat safety differently? More on point, just because legal focus on personal liability may not have worked all that well in the past, maybe we need to have a look at the half-hearted measure it has been and fix the problems within it to deliver an opportunity for lessons to be learned and real deterrence.
Despite talk about ‘no blame’ culture, in practice this simply does not exist. There is always an element of personal responsibility in accident causation, on various levels. How disciplinary measures (blame) are allocated is a different subject, but they are indeed applied. No blame approach in investigations is not to be confused with ‘no responsibility’. No investigative model implies that.
Blame and responsibility and accountability are very different concepts. We should not promote safety with the message of blame but we should indeed be promoting safety with the language of responsibility and accountability, and those two form a great base for existence of the most important factor in management of risk – leadership which in turn creates appropriate organisational practices and finally a successful safety culture.