Welcome to the intellectual vacuum that is political comment on WHS

Today (29 October 2016) the ABC had an article on the ongoing coverage of the tragic loss of lives at Dreamworld in Queensland.

I have commented before about the disconnect between the loss of life in this workplace accident and the near weekly loss of life in Australian workplaces that the coverage of this incident highlights. That disconnect was underscored by a picture of the Federal Opposition Leader, Bill Shorten, laying flowers outside Dreamworld. I do not begrudge Mr Shorten the opportunity to express his condolences (or advance his political position depending on your level of cynicism), but I cannot recall too many times political leaders have given similar public displays of solidarity when people die at our construction, mining, agricultural or any other workplaces.

But what has prompted this article is the simplistic, reactive, leaderless response that politicians trot out in the face of these types of events.

The ABC Article reports Queensland Premier Annastacia Palaszczuk as saying:

“It is simply not enough for us to be compliant with our current laws, we need to be sure our laws keep pace with international research and new technologies,”

“The audit will also consider whether existing penalties are sufficient to act as deterrents, and whether these should be strengthened to contain provisions relating to gross negligence causing death.

“Because we all know how important workplace safety is and how important it is to have strong deterrents.

“That’s why Queensland has the best record in Australia at prosecuting employers for negligence – and we are now examining current regulations to see if there are any further measures we can take to discourage unsafe practices.”

The idea that we “should not be compliant with our current laws” is both a nonsense and a failure of policy makers to properly accept the findings of the Robens Report published in the mid-1970’s. The reason our laws cannot keep pace with “international research and new technologies”, is because governments continue to insist on producing highly prescriptive suites of regulation which in most cases are adopted by organisations as the benchmark for “reasonably practicable”.

For most businesses, particularly small and medium-sized businesses, technical compliance with regulation is the high-water mark of safety management – an approach reinforced by the “checkbox” compliance mentality of many regulators.

WHS legislation is a leading example of this failure of policy, in so far as it increased the number of regulations in most of the jurisdictions where it has been implemented.

Flexible, innovative safety management requires a regulatory framework that promotes it, not limits or discourages it.  How can a regulator have any credibility when it calls on industry to keep pace with “international research”, when it continues to define safety performance through the publication of lost time and other lag injury rates?

Ms Palaszczuk then adopts the standard “tough on safety” call to arms, without taking the time to recognise inherent contradictions in what she is saying. She boasts that “Queensland has the best record in Australia at prosecuting employers for negligence”, but hints at tougher penalties still.

If the considerable penalties under the WHS Legislation and the “best record” of prosecuting employers are not a sufficient deterrent, why would “tougher” and “better” be any different?

I have written about these types of matters before, and would just ask that before policymakers go charging off in pursuit of higher penalties and more prosecutions, we stop and take the time to see if this tragedy can provide the opportunity lost during harmonisation and introduction of WHS legislation.

That lost opportunity was a chance to stop and consider the way that we regulate and manage health and safety in this country.

And can we start with the question of whether criminalising health and safety breaches and managing safety through a culture of fear driven by high fines and penalties is the best way to achieve the safety outcomes we want?

What is the evidence proving high penalties and prosecutions improve safety outcomes?

Are there ways that we can regulate safety to provide significant deterrents and consequences for people who disregard health and safety in the workplace, but at the same time foster a culture of openness, sharing and a willingness to learn and improve?

Can we redirect the time, money, expertise and resources that are poured into enforcement, prosecution and defending legal proceedings in a way that adds genuine value as opposed to headline value?

This is a chance to stop and think. This is a chance for the health and safety industry to stand up, intervene and take a leadership role in health and safety.

If we do not, the intellectual vacuum will continue to be filled by the historical approaches that have brought us to where we are today.

7 thoughts on “Welcome to the intellectual vacuum that is political comment on WHS

  1. It sad to see a loss of life in any event, I wonder what will be the outcome of any investigation on the loss of a QLD BUS DRIVER?. Working alone in an ever changing environment, Risk, risk and more risk with little or no protection, have suitable risk assessments been made at this workplace and if any what corrective actions have taken place to assure workers of their safety?.

  2. A great article. The loss of any life in a work related incident is always tragic and often results in investigations that appear to consider the physical environment. Some incidents may involve individuals experiencing mental health issues, or who have been exposed to a workplace culture that has put their psychological safety at increased risk. In some cases, it may be that a worker operating under these conditions may act or even fail to act in accordance with documented systems and processes.

    It seems that in many cases, responses may indicate that risk assessments were conducted; however, one should also consider when these assessments were conducted e.g. under ‘normal operating conditions’ or when all was quiet.

    Whilst there may be a focus on the prevention, detection, reporting and resolution of workplace incidents, increasing penalties may change a workplace culture to the point where individuals take bigger risks and avoid reporting breaches. In some cases, reporting a breach may result in the individual being targeted.

    Finger pointing and blaming a wide range of people will only in my view, increase the angst created. Open and transparent discussions are required to create a meaningful and effective balance between the proactive (prevention, detection) and reactive (reporting and resolution including imposition of penalties). It is difficult to take the emotive connection out when health and safety is so important to so many. However, the discussions need to occur.

  3. Hi Greg, are you saying regulators do nothing but prosecute and enforce compliance by fear? I think this was the case many years back, but there is a concerted effort by many regulators to ‘help’ businesses deal with ‘holes’ in safety compliance and overall performance. Granted, they do use the law as a consequence (well, they are the regulator), but i have heard of cases of regulators assisting businesses engage better with their workforce, not just comply with the law. Perhaps as a lawyer you may see a lot of prosecutions and worst case scenarios, but from what i understand with regulators of late is that they are much more willing to engage with businesses, and leave the PIN, EU’s and prosecution as a last resort. But of course, that is not what gets printed in newspapers…

  4. i Greg, are you saying regulators do nothing but prosecute and enforce compliance by fear? I think this was the case many years back, but there is a concerted effort by many regulators to ‘help’ businesses deal with ‘holes’ in safety compliance and overall performance. Granted, they do use the law as a consequence (well, they are the regulator), but i have heard of cases of regulators assisting businesses engage better with their workforce, not just comply with the law. Perhaps as a lawyer you may see a lot of prosecutions and worst case scenarios, but from what i understand with regulators of late is that they are much more willing to engage with businesses, and leave the PIN, EU’s and prosecution as a last resort. But of course, that is not what gets printed in newspapers…

    1. Tim. I think the approach by regulators is variable, but yes – I think individual regulators/inspectors, by and large prefer a co-operative approach to a punitive approach. This can vary across jurisdictions, however. My experience from clients in Queensland and South Australia in particular is that the regulator is very policing/punishment focussed. One problem, to my mind, is that most businesses do not have much (if any) contact with the regulators and would not appreciate that perspective. Another problem is that the “fear” aspect of health and safety is the way that it is promoted by the health and safety industry. Much of the fear about prosecution and going to jail has been driven by safety personnel trying to influence their organisations or to drum up business,

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