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.

“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?

Recent allegations about workplace bullying and workplace conduct in public authorities in Western Australia have thrown the legal context of workplace behaviour into sharp relief.

Workplace “bullying”, while having a specific meaning in legislation, has become somewhat of a catchall phrase for a range of workplace behaviour spanning several legal contexts.

Historically, bullying has been understood as an employment issue, often in the context of discrimination or harassment.  From time to time, bullying has crossed into the workplace health and safety jurisdiction, but in most cases, this happens when the “bullying” results in some sort of physical outcome.  For example, the Café Vamp case involved prosecutions under Victorian health and safety legislation, with significant fines for the employer and several individuals following horrific workplace bullying leading to a young worker suiciding.

In another case, a New South Wales company and two of its directors were prosecuted when a 16-year-old worker was physically assaulted in a workplace “hazing” (Inspector Gregory Maddaford v M A Coleman Joinery (NSW) Pty Ltd).  It will be interesting to see what regulatory or legal approaches authorities will take in relation to the recent allegations of hazing at university colleges.

In an article published by ABC News online on 28 February 2018, the city of Perth was allegedly accused by staff of creating an “unsafe workplace” because of “sustained and persistent poor conduct” by elected members.  The article goes on to explain successive CEOs had taken leave, variously described as “stress” and “personal” leave, allegedly caused by breaches of an employment contract in one case and an “unsafe workplace environment” another.

Another article posted by ABC News Online reports that WorkSafe Western Australia is investigating the Southern Ports Authority over allegations of a “toxic culture of workplace bullying” in the Authority.

This last example shows a shift in attitude by the regulator, away from physical harm to investigating allegations of bullying in their own right.

We have also seen examples where an employer’s response to concerns about behaviour in the workplace can result in psychological harm and consequent legal proceedings.  For example, in Campbell v Woolworths [2017] NSWWCC 213, an employer was liable for an employee’s major depressive disorder following a workplace investigation.

Whatever the headline descriptor might be, bullying, harassment, discrimination and so on, it is apparent “psychological harm” issues arising from this behaviour cut across a raft of legal frameworks including unfair dismissal and general protections claims under the Fair Work Act, harassment and discrimination claims under various state and Commonwealth legislation, workers compensation claims, workplace health and safety legislation and in some cases the criminal law, for offences such as assault.  I am sure there are others.

Workplace behaviour and the potential harm it can cause is a significant workplace risk.  Employers need to make sure they have adequate processes to minimise the risk of inappropriate behaviours and respond to them if they occur.  The content of those processes will vary from organisation to organisation, but I think we can say with some confidence, just relying on Employee Assistance Programs will not be enough.

For the health and safety industry the whole concept of workplace behaviours and psychological harm is a fundamental challenge to the entire structure of how we do business.  At the most basic level, and I have written about this before, there is an arguable case that current practice of health and safety contributes to psychological harm in the workplace.

But, even if you are not prepared to go that far, I think it is strongly arguable that health and safety legislation, regulators, and health and safety practitioners are not well-equipped to deal with the complex environment of psychological harm.  Health and safety legislation in Australia, despite the deference we might have to the concept of “health”, is fundamentally concerned with fatalities and significant physical injuries in blue-collar work – mining, construction, agriculture, oil and gas and so on.  Almost exclusively, inspectors working for health and safety regulators come from a technical, operational or engineering background – at least the ones who appear on site.  The health and safety industry is built on an engineering paradigm, very well-equipped to deal with heavy industry, but poorly disposed to the management of people and their psychological well-being.

This whole discussion, in my view, is made more interesting because Safe Work Australia is currently asking for comments as part of their review of the model WHS laws.  Unlike the lost opportunity that was the introduction of WHS laws in the first place, let’s hope this review can look beyond the narrow, 1970s approach to workplace health and safety and try to incorporate all (or some) of the complexities of a modern working environment.  Further, let’s hope the review looks beyond the narrow self-interest of the health and safety industry to incorporate the whole spectrum of concerns about workplace “well-being”, including compensation, discrimination, harassment, employment relationships and so on.

In a modern, sophisticated society, personal well-being at work should not be an elaborate version of the Monty Hall Problem, nor left to the whim of regulators and their choice of which cases to pursue.  Any serious conversation about WHS legislation would include, at a minimum, alignment with workers compensation legislation but should understand and incorporate – or at least align to – employment and discrimination legislation.

 

Something I have often observed over the years I have been commenting on health and safety management, is the Safety Paradox. The Safety Paradox supposes initiatives for health and safety have the capacity to improve safety outcomes, but also the unintended potential to undermine safety.

These days, it seems stress and other forms of psychological harm are at the forefront of human resources and health and safety management. I cannot go a day, it seems, without seeing an article about workplace stress and what we should be doing about it.

All of the Australian health and safety regulators have adopted programs and publish guidance material on workplace stress and what employers should be doing about it.

However, what I do not see, is a self critical reflection by the health and safety industry, questioning the extent to which our health and safety practices contribute to psychological harm in the workplace.

Could health and safety be doing harm?

What has emerged, at least to my mind, is the extent to which our policy, procedure and policing approach to safety and health, far from alleviating psychological harm in the workplace, might be contributing to it.

Safety management might be part of the problem.

In a Western Australian inquiry into the possible impact of fly in/fly out work on “mental health” the Australian Medical Association identified the way health and safety is managed can contribute to a “distinct sense of entrapment” (page 43):

The AMA also expressed its concerns about this issue, noting that “[o]nerous rules, safety procedures and focus on achievement of production levels have been shown to create a distinct sense of entrapment in FIFO workers.”

The inquiry drew, in some measure, on an earlier report, the Lifeline WA FIFO/DIDO Mental Health Research Report 2013 which also appeared to note the adverse impact of safety and health management on psychological well-being. For example “[a]dhering to on-site safety rules” was identified as a workplace stress (page 77). Interestingly, the Lifeline report noted a sense of “intimidation” brought on by the number of rules and regulations associated with work on a mine, and :

This sense of intimidation was further mirrored in the outcomes of mining safety regulations which in theory were designed to care for workers but in practice led to inflexible regulation over genuine safety concerns (page 81).

Examples from the Lifeline report include:

… a participant recalled a situation in which a worker handling heavy loads required an adhesive bandage but was unable to ask someone to get them for him because he had to fill out an accident report first (which he was unable to do mid-job); hence he had to carry on working without attending to his cuts. Alternatively, another example of the application of safety rules in an inflexible manner was illustrated when a group of workers were reprimanded for not wearing safety glasses on a 40 degree day even though they could not see from them due to excessive sweating. Hence, safety rules themselves were accepted as a necessary part of work but their implementation in an inflexible uniform manner created stress as workers felt their impact hindered their ability to conduct basic work tasks safely and/or without attracting rebuke. Hence, site rules and regulations could translate into arbitrary and punitive forms of punishment, which undermined participants’ ability to fulfil jobs to their satisfaction and left them feeling insecure with their positions (page 81).

It seems, then, we need to think beyond our own perceptions of what might contribute to workplace stress and understand the impact that our efforts to manage health and safety might actually be having. Again, as the Lifeline research noted:

… although past research has shown that site conditions and cultures, such as isolation and excessive drinking are problematic, this research shows that the regimented nature of working and living on-site also takes a toll on mental health and wellbeing. From the responses of many participants, it was apparent that following site safety rules (either under pressure of internal monitoring or in the perceived absence of adequate safety precautions by co-workers and supervisors) was a significant stressor. Participants felt unable to apply self-perceived common-sense judgments and also reported feeling vulnerable to intensive scrutinising, intimidation and threats of job loss (page 82) [my emphasis added].

The common criticisms of safety management and its emphasis on process, controlling behaviour and discipline seem to go directly to factors identified as contributing to psychological harm in the workplace. The pressure to comply with rules, fear about reporting incidents, the inability to exercise individual judgement on how to manage risk and the inflexible application of process are all side-effects of process driven safety.

It is also going to be interesting to see how health and safety regulators, often the champions of paperwork and process, oversee potential impacts of systems on psychological harm in the workplace. Indeed, it would be very useful to see what risk assessments, research or other measures are taken by regulators prior to issuing improvement notices, or giving instructions to workplaces about how to manage risks.

Does the health and safety industry understand the potential effects of their interventions, or undertake any research to understand the potential harm our health and safety intervention may cause?

A recent Fair Work Commission decision, considering the dismissal of a Work Health and Safety Officer in Queensland, provides some useful commentary about the importance of health and safety personnel not just escalating health and safety concerns, but pursuing those concerns. The case also reminds health and safety personnel to exercise good personal due diligence in their role.

The case, Mr Anthony Nieberg v The Heran Building Group Pty Ltd T/A Heran Building Group [2017] FWC 6225, concerned an unfair dismissal claim by Mr Nieberg, a safety officer employed by Heran for about 15 months before they terminated his employment.

From an unfair dismissal perspective, there is nothing remarkable about the case. It is consistent with the principles governing termination of employment, which at its most basic requires a “valid” reason to end the employment relationship, and the employer exercises their right to terminate, based on that valid reason, “fairly”.

Heran defended the claim, saying they dismissed Mr Nieberg because he did not adequately perform his duties as a safety officer, he was issued three written warnings about his performance, but his performance did not improve.

Mr Nieberg oversaw safety on several building sites, and there was evidence in the case about concerns regarding safety on the sites. For example, a town planning and project consultant who had been working for Heran for over seven years wrote to the company about the danger the Heran sites posed and how the sites were not compliant with safety requirements.

The evidence showed safety issues were not being addressed despite warnings Heran gave to Mr Nieberg. The Commission formed the view Mr Nieberg was not taking the appropriate steps to confront the issues on site, or to raise “directly and assertively with the Directors of Heran his concern that site supervisors were simply not doing as he instructed” [my emphasis added] (see paragraph 96).

Mr Harris gave evidence for Mr Nieberg. Mr Harris had been a safety advisor for Heran for just under three months from June until September 2017. Mr Harris told the Commission he was not backed up by management “with health and safety rectifications”, and suggestions he made about safety did not mean much to the supervisors on-site “because they were protected as long as the progress of the sites continued without interruption” (see paragraphs 82 and 83).

Mr Harris said the culture on-site caused him to resign.

The Commission took Mr Harris’s evidence into account, but noted:

I have taken into account the evidence of Mr Harris that was to the effect that he resigned because of what he described as a poor culture of compliance, and because management did not back him up. This would have been of more assistance to Mr Nieberg had Mr Nieberg demonstrated he had been escalating issues to management and actively pursuing enforcement of safety however there is little evidence to prove that he was (see paragraph 105).

The Commission said, Mr Nieberg had “a position of considerable accountability and responsibility” but appeared to be of the view, “if a safety matter had been reported he had fulfilled his responsibility and it was then over to management”:

Mr Nieberg tended to seek to deflect responsibility for the identified safety deficiencies to either site supervisors, or directors for not supporting him. However given Mr Nieberg’s level of responsibility it fell to him to take action when others failed to comply with their safety obligations. I am inclined to accept that he did not escalate issues and insist on consequences being imposed on a failure to comply despite clear warnings that this was expected of him (paragraph 99).

The Commission found:

Heran had a valid reason to dismiss Mr Nieberg based on his performance over an extended period as Safety Officer in not taking measures necessary to ensure Heran’s jobs sites complied with workplace health and safety legislation and other safety related obligations, or to assertively escalate matters when personnel failed to comply with the relevant safety requirements (paragraph 107).

A lack of management support for health and safety is a common, and often very justified, complaint by health and safety personnel.

What this case illustrates is health and safety personnel, by virtue of their position, have to do more than simply raise concerns with management. There is an ongoing and positive obligation to pursue those issues and follow them up.

Moreover, the case reminds health and safety personnel to exercise personal due diligence in relation to their role. Specifically, health and safety personnel should keep good records of what they do in their role, what concerns they identify and raise about health and safety, how they deal with those concerns and how concerns are escalated and managed.

A benefit of health and safety personnel exercising good personal due diligence in relation to their obligations, is they will be better placed to help other managers understand and exercise personal due diligence in relation to health and safety.

 

 

 

 

On 1 and 2 February 2018, Dr Robert Long and I will be hosting a due diligence workshop at the Wayside Chapel in Sydney.

This is the second time we have run the due diligence program at the Wayside Chapel, a truly unique learning environment where participants are exposed to the challenges of risk management working amongst some of the most disadvantaged people in the country.

You can find more information about the program HERE.

You can also review a discussion Rob and I had about due diligence, as part of our book, Risky Conversations: The law, social psychology and risk.