Rules will not be followed – and you are expected to deal with that

I recently posted an article entitled The Safety Paradox and the challenge of health and safety assurance which generated quite a lot of discussion on LinkedIn and elsewhere.

One discussion went as follows:

Comment:

How do we know or can we know “that not all safety initiatives are always good, and that safety initiatives can undermine safety”? And Could this; “Research into JHAs and other frontline risk assessment tools shows how they can disengage the workforce from the organisation’s health and safety message” be used to avoid personal accountability? Do not agree at all to this comment “To my mind, the assumption that we are doing something in the name of health and safety, and therefore it must be good and it must be achieving the purpose for which it is intended is one of the foundational building blocks for the Illusion of Safety, and must be challenged” Greg, can you tell me one Safety law made that was not created for health and welling? Are you ignoring the fact the system does not allow for us to follow the safe ways? and that even if it does people just violate rules anyway for self-gain! I see a lot of hindsight Bias here!

Response:

 … all safety laws and safety initiatives are created with a positive outcome in mind. I accept that. However, I do not accept that just because we have a positive intention, this will result in a positive outcome. We have an obligation to know if our initiatives are achieving the positive outcome or not. I also accept that people will violate rules – indeed the law recognises that and says to businesses, in developing your rules you must be aware that people will violate them – therefore you have a positive obligation to supervise your systems to understand/minimise the violations

I felt that the comment warranted a deeper response, especially in relation to the idea that the law recognises that people will violate safety rules, and that our safety management systems have to take account of this likelihood.

At its simplest, safety management requires us to develop “proper system” to manage the health and safety risks in our business, and ensure “adequate supervision” to understand if those systems have been implemented and are operating effectively. The Royal Commission into the 1998 Esso Longford Gas Plant Explosion, in its observations of the level of non-compliance with operating procedures noted:

… the evidence suggests that some of the failings were so prevalent as to have become almost standard operating practice. These practices could not have developed or survived had there been adequate supervision of day to day operations by Esso management. [paragraph 13.33] (my emphasis added)

This idea of “systemic failure” as opposed of a “one-off departure” from an otherwise effective system was a topic I looked at in a short, 4-and-a-half-minute video, One-off departure or systemic failure if you want to explore that notion further.

What the Longford Royal Commission confirms is that understanding worker non-compliance with safety procedures is a known phenomenon, and it impacts both parts of the safety equation:

Proper Systems – our systems must take account of the fact that workers will not comply with the systems; and

Adequate supervision – we must continually monitor our safety management systems to identify and address non-compliance.

This was recently articulated in Comcare v Transpacific Industries Pty Ltd [2012] FCA 90:

I accept the submission made on behalf of Comcare that one of the significant reasons for legislation such as the OHS Act is that, on many occasions, industrial health and safety mechanisms need to be put in place by an employer to guard against the possibility that employees generally or particular employees might ignore what would seem to be imprudent behaviour, not just because they are fooling around, skylarking or acting up, but because they have a genuine desire to get about their employer’s work and might have a tendency, on occasion, to disregard procedures that are designed to protect them from injury or indeed loss of life. In short, occupational health and safety standards are put in place, apart from any other reason, sometimes to protect employees against themselves. [51]

This was also a concept expressed in the Montara Commission of Inquiry during cross examination

[Mr Howe QC]:     No, I mean would he also have taken the position that he couldn’t, as it were, credit that corners might be cut or people might lose sight of proper procedures because they were diverted to endeavours to save time and money, and the like?

[Mr Jacob]             I would think so, but obviously I can’t talk for him.

[Mr Howe QC]:     What about your CEO – do you think the CEO shared that same approach?

[Mr Jacob]             Again, I don’t think anybody in the organisation would credit that things would be done to the detriment of safety for the benefit of cost.

[Mr Howe QC]:     I want to suggest to you, sir, that that very evidence reveals a problem, namely, that no-one in the organisation seems to have properly credited the known phenomenon that when people are pursuing efficiencies and time savings and cost savings, they can lose sight of the need to observe proper procedures.

[Mr Jacob]             Sorry, could you repeat the first part of that?

[Mr Howe QC]:     Yes.  You seem to be saying that, to your knowledge or understanding, no-one in PTT would have credited at the time that people involved in well management and well control might have succumbed to any sort of corner-cutting or inattention to proper procedures by virtue of the desire to achieve time and cost savings.

[Mr Jacob]             Mmm-hmm, yes.

[Mr Howe QC]:     I’m suggesting to you that the very fact that you are giving that evidence identifies a problem, namely, senior management did not properly recognise the plain fact of ordinary human nature and a known phenomenon, namely, when you have lots of people applying themselves to achieving time and financial efficiencies, they can lose sight of the need to properly attend to processes.

[Mr Jacob]             On the basis that there weren’t systems in place to ensure that the barriers, et cetera, were identified as being in place and verified and that, yes, I can accept that.

(my emphasis added)

 (Jacob, A. 2010. Transcript: Montara Commission of Inquiry transcript.  http://www.montarainquiry.gov.au/transcripts.html (accessed 29 September 2010), 1784).

Finding 42 (page 141) from the Inquiry reflected this examination:

PTTEPAA did not have effective internal systems in place to achieve a high level of quality assurance with respect to well control operations. In particular, systems were not in place to ensure (i) vigilant day‐to‐day supervision of subordinate personnel; (ii) monitoring of well operations through internal audits.

The history of fatalities and major accident inquiries paint a consistent picture for businesses. You are expected to be able to demonstrate that you have proper systems to manage the health and safety risks in your business, and you are expected to be able to demonstrate that those systems were adequately supervised. An outcome of adequate supervision is that organisations should be able to show, at any point in time that they understand how well these systems are implemented, and whether they are working – whether they are managing the risks as intended.

To borrow from the language of the Pike River Royal Commission, organisations should be able to prove the effectiveness of their crucial systems.

What is also consistent, is the recognition that workers, for a range of reason, including the genuine desire to get about their employer’s work, will not always comply with the rules, processes and procedures designed to protect them. An essential element of proper systems and adequate supervision is to recognise the capacity for non-compliance and take account of it.