Measuring and Reporting on Work Health & Safety

I approach this article with some trepidation.

I was recently sent a copy of Safe Work Australia’s report, Measuring and Reporting on Work Health & Safety, and subsequently saw a post on LinkedIn dealing with the same.  I made some observations on the report in response to the original post which drew the ire of some commentators (although I may be overstating it and I apologise in advance if I have), but I did promise a more fulsome response, and in the spirit of a heartfelt desire to contribute to the improvement of health and safety in Australia – here it is.

I want to start by saying, that I have the utmost respect for the authors of the report and nothing is intended to diminish the work they have produced.  I also accept that I am writing from a perspective heavily influenced by my engagement with health and safety through the legal process.

I also need to emphasise that I am not dismissing what is said in the report, nor saying that some of the structures and processes proposed by the report are not valid and valuable.  But I do think the emphasis in the report on numerical and graphical information has the potential to blind organisations to the effectiveness of crucial systems.

I also want to say that I have witnessed over many years – and many fatalities – organisations that can point to health and safety accreditations, health and safety awards, good personal injury rate data, good audit scores and “traffic lights” all in the green.  At the same time, a serious accident or workplace fatalities exposes that the same “good” safety management systems are riddled with systemic failure – long term systemic departures from the requirements of the system that had not been picked up by any of the health and safety measures or performance indicators.

I am not sure how many ways I can express my frustration when executive leadership hold a sincere belief that they have excellent safety management systems in place, only to realise that those systems do not even begin to stand up to the level of scrutiny they come under in a serious legal process.

In my view, there is a clarity to health and safety assurance that has been borne out in every major accident enquiry, a clarity that was overlooked by the drafters of WHS Legislation and a clarity which is all too often overlooked when it comes to developing assurance programs.  With the greatest respect, possible to the authors of this report, I fear this has been overlooked again.

In my view, the report perpetuates activity over assurance, and reinforces that assumptions can be drawn from the measure of activity when those assumptions are simply not valid.

Before I expand on these issues, I want to draw attention to another point in the report.  At page 38 the report states:

Each injury represents a breach of the duty to ensure WHS

To the extent that this comment is meant to represent in some way the “legal” duty, I must take issue with it.  There is no duty to prevent all injuries, and injury does not represent, in and of itself, a breach of any duty to “ensure WHS”.  The Full Court of the Western Australia Supreme Court made this clear in Laing O’Rourke (BMC) Pty Ltd v Kiwin [2011] WASCA 117 [31], citing with approval the Victorian decision, Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 – 124:

The Act does not require employers to ensure that accidents never happen.  It requires them to take such steps as are practicable to provide and maintain a safe working environment.”

But to return to the main point of this article.

In my view, the objects of health and safety assurance can best be understood from comments of the Pike River Royal Commission:

The statistical information provided to the board on health and safety comprised mainly personal injury rates and time lost through accidents … The information gave the board some insight but was not much help in assessing the risks of a catastrophic event faced by high hazard industries. …  The board appears to have received no information proving the effectiveness of crucial systems such as gas monitoring and ventilation.”

I have written about this recently, and do not want to repeat those observations again (See: Everything is Green: The delusion of health and safety reporting), so let me try and explain this in another way.

Whenever I run obligations training for supervisors and managers we inevitably come to the question of JHAs – and I am assuming that readers will be familiar with that “tool” so will not explain it further.

I then ask a question about how important people think the JHA is.  On a scale of 1 to 10, with 1 being the least important and 10 being the most, how important is the JHA?

Inevitably, the group settles on a score of somewhere between 8 and 10.  They all agree that the JHA is “critically important” to managing health and safety risk in their business.  They all agree that every high hazard activity they undertake requires a JHA.

I then ask, what is the purpose of the JHA.  Almost universally groups agree that the purpose of the JHA is something like:

  • To identify the job steps
  • To identify hazards associated with those job steps
  • To identify controls to manage the hazards; and
  • To help ensure that the work is performed having regard to those hazards and the controls.

So, my question is, if the JHA is a “crucial system” or “critically important” and a key tool for managing every high-risk hazard in the workplace, is it unreasonable to expect that the organisation would have some overarching view about whether the JHA is achieving its purpose?

They agree it is not unreasonable, but such a view does not exist.

I think the same question could be asked of every other potentially crucial safety management system including contractor safety management, training and competence, supervision, risk assessments and so on. If we look again to the comments in the Pike River Royal Commission, we can see how important these system elements are:

Ultimately, the worth of a system depends on whether health and safety is taken seriously by everyone throughout an organisation; that it is accorded the attention that the Health and Safety in Employment Act 1992 demands.  Problems in relation to risk assessment, incident investigation, information evaluation and reporting, among others, indicate to the commission that health and safety management was not taken seriously enough at Pike.”

But equally, the same question can be asked of high-risk “hazards” – working at heights, fatigue, psychological wellbeing etc.

What is the process to manage the hazard, and does it achieve the purpose it was designed to achieve?

The fact that I have 100% compliance with closing out corrective actions tells me no more about the effectiveness of my crucial systems than the absence of accidents.

The risk of performance measures that are really measures of activity is tha they can create an illusion of safety.  The fact that we have 100% compliance with JHA training, a JHA was done every time it was required to be done, or that a supervisor signed off every JHA that was required to be signed off – these are all measures of activity, they do not tell us whether the JHA process has achieved its intended purpose.

So, what might a different type of “assurance” look like?

First, it would make a very conscious decision about the crucial systems or critical risks in the organisation and focus on those. Before I get called out for ignoring everything else, I do not advocate ignoring everything else – by all means, continue to use numerical and similar statistical measures for the bulk of your safety, but when you want to know that something works – you want to prove the effectiveness of your crucial systems – make a conscious decision to focus on them.

I thought that the JHA process was a crucial system, I would want to know how that process was supposed to work? If it is “crucial”, I should understand it to some extent.

I would want a system of reporting that told me whether the process was being managed the way it was supposed to be. And whether it worked. I would like to know, for example:

  • How many JHAs were done;
  • How many were reviewed;
  • How many were checked for technical compliance and what was the level of technical compliance? Were they done when they were meant to be done, were they completed correctly etc.
  • How many were checked for “quality”, and what the quality of the documents like? Did they identify appropriate hazards? Did they identify appropriate controls? Were people working in accordance with the controls?

I would also want to know what triggers were in place to review the quality of the JHA process – was our documented process a good process? Have we ever reviewed it internally? Do we ever get it reviewed externally? Are there any triggers for us to review our process and was it reviewed during the reporting period – if we get alerted to a case where an organisation was prosecuted for failing to implement its JHA process, does that cause us to go and do extra checks of our systems?

We could ask the same questions about our JHA training.

I would want someone to validate the reporting. If I am being told that our JHA process is working well – that it is achieving the purpose it was designed for – I would like someone (from time to time) to validate that. To tell me, “Greg, I have gone and looked at operations and I am comfortable that what you are being told about JHAs is accurate. You can trust that information – and this is why …”.

As part of my personal due dilligence, if I thought JHA were crucial, when I went into the field, that is what I would check too. I would validate the reporting for myself.

I would want some red flags – most importantly, I would want a mandatory term of reference in every investigation requiring the JHA process to be reviewed for every incident – not whether the JHA for the job was a good JHA, but whether our JHA process achieved its purpose in this case, and if not, why not.

If my reporting is telling me that the JHA process is good, but all my incidents are showing that the process did not achieve its intended purpose, then we may have systemic issues that need to be addressed.

I would want to create as many touch points as possible with this crucial system to understand if it was achieving the purpose it was intended to achieve.

My overarching concern, personally and professionally, is to structure processes to ensure that organisations can prove the effectiveness of their crucial systems. I have had to sit in too many little conference rooms, with too many managers who have audits, accreditations, awards and health and safety reports that made them think everything was OK when they have a dead body to deal with.

I appreciate the attraction of traffic lights and graphs. I understand the desire to find statistical and numerical measures to assure safety.

I just do not think they achieve the outcomes we ascribe to them.

They do not prove the effectiveness of crucial systems.

 

Safety leadership: enabler, excuse or doing harm?

I do not think that there is any serious view suggesting that “leadership” is not an important, if not the most important driver of safety performance.  One of the main findings from a 2002 review of Safety Culture was:

…  management was the key influence of an organisation’s safety culture. A review of the safety climate literature revealed that employees’ perceptions of management’s attitudes and behaviours towards safety, production and issues such as planning, discipline etc. was the most useful measurement of an organisation’s safety climate. The research indicated that different levels of management may influence health and safety in different ways, for example managers through communication and supervisors by how fairly they interact with workers (Thompson, 1998). Thus, the key area for any intervention of an organisation’s health and safety policy should be management’s commitment and actions towards safety (Safety Culture: A review of the literature).

In the wake of findings like these, and numerous others, it is unsurprising that safety leadership often dominates discussions about safety management.

But are there conversations about safety leadership that we are not having and should be?

To my mind, the hard work in health and safety management is understanding if, or the extent to which, health and safety risks in our business are being controlled.  All too often, however, in my experience “leadership” is an excuse to avoid the hard work of health and safety management.

The “psychology” (and I use that term as a complete layperson) of safety leadership seems to be that if I can convince my workforce that I genuinely care for them and that safety is genuinely important, then safety will take care of itself.

If I “care“, if I am a “safety leader” I do not need to do the hard work to critically challenge incident investigations, I do not need to analyse, understand and challenge audits.  If I am a “safety leader” then I can accept declining personal injury rates and green traffic lights on my corporate scorecard as evidence that my safety management system is working, without ever having to challenge the assumptions that underpinned that information.  Assumptions that have been shown time and again to be wrong.

This is the same discourse that threaded its way through safety culture: It doesn’t matter how bad our management systems are because we have a good “culture“.   It is also the same discourse that is starting to creep into the next wave of safety thinking, concepts like “safety differently” and “appreciative enquiry“.

I make no comment on the efficacy of leadership, culture, safety differently, appreciative enquiry or whatever the next trend will be but I do question where, in any of these concepts, we do the hard work of confirming that our risks are being controlled.

I recall many years ago reviewing a matter where a worker sent a hazardous substance through the internal mail using a yellow into office envelope (back when they existed).  The worker broke every one of the organisations procedures and protocols for managing hazardous substances, yet the organisation viewed this dangerous  event as a triumph of their “culture“, because the worker “cared“.

The twisted logic where organisations use leadership or culture to wallpaper over the cracks of ineffective safety management systems, and actively avoid the hard work of understanding if their risks are being controlled,  is very often bought into stark relief following a disaster.

The next time you are in a meeting discussing safety management  listen to see if leadership or culture is being used as an avoidance strategy.  Are the difficult topics such as improving the quality of incident investigation or clarifying complex and bureaucratic safety management systems  or improving risk assessments bypassed with comments like:

we just need to get out and be seen more

or

we just need to spend more time in the field talking to the blokes

 Is this leadership or an excuse to avoid the hard work?

Over and above  avoiding what really needs to be done, is it possible that the things we do in the name of “leadership” have the potential to actively undermine safety in our organisations?

Whatever your “leadership” objective might be, whether it is to demonstrate commitment, to understand the work being performed in your organisation, to appreciate what might be preventing people from complying with safety procedures or any other objective, how do you know that your actions in the name of leadership are achieving those objectives?   Because for all your good intentions there is a real risk that your presence in the field talking about safety might have the opposite effect.  It might promote cynicism amongst your workforce, it might disengage them from your safety message.

You may be seen as a leader whose only concern is to cover their own backside and who obsesses over safety issues important to you, without really listening to the concerns of the workforce.

How do you know if your safety leadership works?

I think that much of what is done in the name of safety and health has, consciously or unconsciously, devolved into “window dressing“.   Much of what we do is held up to the public or to our workforce as evidence of our commitment to safety, yet the substantive hard work necessary to understand if our health and safety risks are being managed remains undone – the façade of health and safety management is attractive but the building is crumbling.

Safety leadership and related concepts of care and culture have a place.  More than that, they are critically important.  But they are not buzzwords to be lightly tossed around and as a critical process, leadership deserves the same level of scrutiny and analysis as any of your other critical processes.

Demonstrating compliance: The SD Tillett case

I recently posted an article about the way health and safety is measured and reported in organisations.  In the article, I argued that many of the indicators that we used to understand how well health and safety risks are managed in our business are measures of activity and provide no real assurance that health and safety risks are being managed.  I suggested that the assumptions that are drawn from these indicators create a dangerous illusion of safety – because all our indicators are green”, we assume our risks are managed.

The article prompted a lot of discussion and several questions about how health and safety are measured and how organisations might better understand if their health and safety risks are being managed.

I thought it would be helpful to further the debate by looking at a few cases where organisations have met their legal obligations, even though there was an accident to try and understand the sorts of factors that are considered.

In this article, I want to look at the decision of Moore v SD Tillett Memorials Pty Ltd [2002] SAIRC 47, a decision of the South Australian Industrial Relations Court.

On 21 December 1999, an employee, Mr Bacon was helping another employee, Graham Muscat, move an “A” frame loaded with approximately seven granite sheets.  The men were moving the granite sheets using a forklift.

Mr Bacon died when the granite sheets loaded on the ‘A’ frame fell, trapping him between the granite sheets and a metal table.

The defendant company, SD Tillett Memorials Pty Ltd was charged as follows:

On the 21st day of December 1999 at Hindmarsh in the said State, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Craig Anthony Bacon, was, whilst at work, safe from injury and risk to health and, in particular:

(a)     failed to provide and maintain so far as was reasonably practicable a safe system of work; and

(b)     failed to provide such information instruction training and supervision as were reasonably necessary to ensure that the employee was safe from injury and risks to health.

The particulars of the charge, that is the precise allegations were that SD Tillett failed to:

·         Provide and maintain a safe system for the movement of ‘A’ frames loaded with granite sheets.

·         Provide and maintain a safe system for the loading and storage of granite sheets on ‘A’ frames.

·         Provide adequate information instruction and training to Graham Muscat will about the safe movement of “A” frames loaded with granite sheets.

·         Provide adequate supervision for the employee and Graham Muscat.

·         Provide adequate information instruction and training to the Operations Manager, Stephen Tanner about the loading and storage of granite sheets on ‘A’ frames.

The process for moving the granite sheets required them to be secured using a strapping.  When Mr Bacon died, the slabs had not been strapped in accordance with what was described as a “standard operating procedure”.  While there was some discussion about a memorandum setting out this standard operating procedure, it was not produced in the trial period

Earlier in the day, there had been an incident where slabs had not been strapped, and disciplinary action was taken against the work involved.

There is no discussion in the case about SD Tillett’s injury rates or any other lead or lag indicators used to measure health and safety.

The evidence at the hearing came from the workers.  In all but one case, that evidence was consistent.  The evidence confirmed that all the workers understood the requirements to strap the granite, and this was a requirement that was continually reinforced by the operations manager Mr Tanner.  The Court said:

… there is a common thread through the evidence of those witnesses that there was a continuous verbal reinforcement of the requirement to strap loaded “A” frames.

The only person who said he was not aware of the prohibition against moving the granite without strapping was the driver of the forklift, Mr Muscat.  In relation to his evidence, the Court said:

It is my view that Muscat has tried to cover up the system of work that he adopted at the time of the incident. His denial of any rule about strapping loaded “A” frames is contrary to the evidence of all the other witnesses who were either former employees or current employees of the defendant.

With respect to the written standard operating procedure or memorandum, although the document was not produced at the trial, the Court formed the view that the procedures had been committed in writing, because all the witnesses gave evidence that they had seen a written procedure or memorandum.  The prosecution then argued that a written record should have been made of who had received the document.  In response to this, the Court said:

This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees save and except for Muscat. As I have indicated I find that the evidence of Muscat is unreliable.

This proposition is in quite stark contrast to what we normally see.  Here we have witnesses who clearly understand the safe procedures are doing the work, even though a documented procedure could not be produced.  Normally, we are faced with a position with a documented procedure can be produced, but nobody understands it or complies with it.

The preponderance of evidence in the case was that the employees were aware of the requirement to strap the granite before moving it using a forklift, there was constant verbal reinforcement of this requirement, and disciplinary action was taken against employees who did not comply with this requirement.  In the face of this evidence, the Court found:

I find on the totality of the evidence led by the prosecution that it has not discharged the onus of proving beyond reasonable doubt that there were one or more measures which the defendant may have reasonably practicably taken but did not take which would have eliminated or ameliorated the risk.

I find that there were constant verbal directions to strap loaded “A” frame pallets before any movement. The responsibility for the incident lies not with the defendant but elsewhere.

I therefore find the defendant not guilty.

This case reinforces that it is incumbent on an employer to be able to demonstrate that they have proper systems in place to manage the health and safety risks in their business and that those systems are implemented, understood, constantly applied and enforced.

 The inherent weakness in most health and safety reporting is it does not confirm any of these matters.

Injury rates do not give us this information.  The number of action items that have been closed out does not give us this information.  The number of management walk arounds or “interactions” does not give us this information.

Let me address the obvious objection at this point.  In my view, this is not just about legal compliance.  If an organisation does not have effective assurance that they have proper systems in place to manage the health and safety risks in their business and that those systems are implemented, understood, constantly applied and enforced how can they have any comfort that health and safety risks are being managed?

In my view, it is beyond argument that health and safety reporting needs to move beyond measures of injury rates and “activity” and start to provide positive assurance the critical health and safety risks are being managed.

 

 

 

Everything is Green: The delusion of health and safety reporting

Over the past 12 months, I have been engaged in a significant amount of health and safety “assurance” work, helping organisations to try and understand if the health and safety risks in their business are effectively managed.  Perhaps the most enduring image to come out of the last 12 months for me is the misleading and dangerous assumptions people make based on health and safety reports. 

 Often, when people look to criticise health and safety reporting, they point to lag indicators such as injury rates.  I do not want to talk about injury rates as a measure of health and safety performance in this article, so I would like to put that issue to bed with this observation from the Pike River Royal Commission

The statistical information provided to the board on health and safety comprised mainly personal injury rates and time lost through accidents … The information gave the board some insight but was not much help in assessing the risks of a catastrophic event faced by high hazard industries. …  The board appears to have received no information proving the effectiveness of crucial systems such as gas monitoring and ventilation.” 

Let’s be clear.  There are no major accident enquiries that have identified personal injury rates as a legitimate measure of the effectiveness of health and safety management.  Personal injury rates are a measure of how many personal injuries have occurred – no more.  Any organisation that assumes personal injury rates are a measure of the effectiveness of their safety management system is misguided.  We have known this for decades. 

The challenge is not managing personal injury rates.  The challenge is proving the effectiveness of our crucial systems for managing health and safety risk.  If our systems are effective to manage health and safety risks, improved safety performance should follow. However, the reverse does not hold true, and countless major accident enquiries have identified fundamentally flawed safety management systems disguised by good and improving personal injury rates. 

We have seen over time the development of so-called “lead” indicators as a counterpoint to traditional, lag indicators.  Lead indicators, supposedly designed to provide insight into the effectiveness of safety management systems. 

But do they? 

Overwhelmingly, lead indicators are nothing more than a measure of activity and the fact that our measures of activity have 100% compliance – they are all green – creates a dangerous illusion of safety. 

A popular “lead” indicator for safety and health is the number of management interactions.  These might be variously described as safety conversations, safe act observations, behavioural observations, safety interactions, management walk arounds and so on.  Inevitably, they show up in a health and safety report as part of a table of lead indicators or a dashboard of “traffic lights“.  These indicators, or traffic lights, are usually coloured red if the indicator has not been met, amber if it has not been completely met and green if the requirement has been met. 

Other, typical indicators might include: 

·    Corrective actions closed;

·    Audits completed;

·    Training completed;

·    Hazards identified; or

·    Pre-start or “Take 5” cards completed.

No doubt there are countless more. 

The difficulty with all of these indicators is that they are measures of “activity“.  Invariably, they tell us whether things have been “done“. 

They tell us nothing about the quality or effectiveness of the activity. 

They tell us nothing about the influence of the activity on safety. 

They make no contribution to proving the effectiveness of our crucial systems. 

One of the phenomena that I have observed about health and safety management over the years is the notion of the “safety paradox“.  The safety Paradox supposes that everything we do in the name of health and safety can both improve and undermine safety in the workplace.  A very good example is a frontline risk assessment tool such as the JHA. 

The JHA is a ubiquitous frontline risk assessment tool implemented by organisations all over the world.  At its best, it can be an effective mechanism to help frontline workers identify the risks associated with their work and develop suitable controls to manage those risks. 

Conversely, it also can disengage the workforce from the safety management message of the organisation and drive a complete “us and them” mentality. 

Research suggests that significant numbers of workers see frontline risk assessment tools like the JHA as a backside covering exercise, designed to protect managers from legal risk in the event of an accident.  In most workplaces, this idea does not come as a complete shock, and there is a general acceptance of the limits or weaknesses inherent in the JHA.  However, the use of the JHA continues to roll on without analysis, without thought, without critical thinking and certainly without any reporting at a managerial level about its effectiveness. 

I have never seen a health and safety report that provides information to the executive about the effectiveness of the JHA system in the business.  Given that the JHA is one of the most critical tools used by organisations for the management of high-risk activities (including working at heights, confined space entry, lifting operations and so on) I find this extraordinary. 

I am not going to advocate whether organisations should use a JHA.  But I don’t think there could be any reasonable argument for an organisation not to know whether their use of the JHA is beneficial to safety or is undermining it. 

What about incident investigations? Are Incident investigations an important system in safety management? 

Whenever I asked this question in training workshops, everybody immediately tells me that incident investigations are very important.  If I asked the question: 

On a scale of 1 to 10, with one being unimportant and 10 being critically important, how important our incident investigations? 

Inevitably the answer is 9 or 10. 

But does your system of incident investigation work?  If it is such a crucial systems, how do you prove its effectiveness?  This was an issue that the Pike River Royal Commission wanted to understand, and they looked at it as follows: 

The workers reported many incidents and accidents.  The commission analysed 1083 reports and summarised a selection of 436 and a schedule. …  there were problems with the investigation process … Incidents were never properly investigated.” 

If you are interested, an extract of cross-examination from the Royal Commission asking questions about incident investigations is available here.  It provides an interesting insight into the sorts of issues managers need to address when their safety management systems are being critically analysed. 

Again, I have never seen a health and safety report that provides information to the executive about the effectiveness of an incident investigation process.  Would it be so unreasonable to expect, and given the apparent criticality of incident investigations, that once or twice a year somebody will prepare a report for executive management summarising incident investigations and forming a view about their quality and effectiveness? 

Finally, let’s go back and consider management interactions.  As I indicated above, these are a very common lead indicator for safety management, but they are also very limited, often nothing more than a measure of how many interactions have been done.  There is typically no measure or analysis about whether interactions were done well or whether they have added value to safety management. 

It seems universally assumed management interactions around health and safety are a good thing but are they? 

What is their purpose, what are they designed to achieve and how do we know that they are achieving that purpose?  Is there a risk that management interactions could be undermining safety in your workplace? 

How do you know the or managers are not just wandering around practising random acts of safety, reinforcing unsafe behaviours and generally just pissing everybody off? 

A green traffic light in a health and safety report as an indicator that everybody who should have had a management interaction has done one is misleading and fuels the illusion of safety which underpins so many catastrophic workplace events. 

When was the last time anybody provided health and safety reporting that made any meaningful contribution to proving the effectiveness of crucial systems?  Have any leaders ever received a report showing a detailed analysis of lifting operations over a 10 month period with a formal, concluded you about the effectiveness of the safety management system to control the risks associated with lifting?  What about dropped objects?  What about working at height? 

What about the efficacy of your permit to work system?  Has that ever been analysed and reported on, other than on a case-by-case “reactive” basis following an incident? 

For your next health and safety “reporting” meeting, try this: Scrap your traditional health and safety report, pick a critical risk such as working at heights, and ask your safety manager to provide you with a presentation about whether, or to what extent, the risk has been managed as far as reasonably practicable.

What is your health and safety reporting really telling you, as opposed to the assumptions you choose to make?  Is there any evidence that it is proving the effectiveness of your crucial systems?

 

 

 

 

 

All care no responsibility: What is the role of health and safety management?

I was recently involved is some discussion on LinkedIn about the liability of health and safety managers under health and safety legislation (link here)

Several responses seemed to suggest that because health and safety managers had no authority, they should not have any accountability either – that safety managers only provide advice and have no authority over others.

I must say this is a proposition I find extraordinary, but let’s explore it.

I wrote some time ago that safety managers should have the same level of accountability as company officers, after all, they are the architects of the safety management system and should have some idea about how well it is working  (Are health and safety managers company offices and should they be ?)

Many enquiries around the world have identified that a focus on personal injury rates is not a good indicator of the effectiveness of the health and safety management system, and on occasions, the focus on personal injury rate management can distract an organisation from managing the critical health and safety risks in its business.

Quite rightly, enquiries criticise organisations where the focus on personal injury rates have undermined the effectiveness of their health and safety management system.  But surely, the health and safety manager also has an accountability?

While it might be correct to criticise a chief executive officer of such an organisation, it cannot be correct to suggest that the chief executive officer has a greater understanding of personal injury rates and their influence on safety management than the safety manager.

While the safety manager might not have “authority” surely, they have accountability to advise the organisation about the perils of overreliance on personal injury rates, and to monitor the safety management system to ensure that any reliance on personal injury rates is not undermining safety management.  It must be correct, that a safety manager should continue to warn or flag any concerns whenever they believe that the focus on personal injury rates damages effective safety management.

Is a chief executive officer’s culpability for failing to enquire about the effectiveness of personal injury rates as a measure of safety any less than a safety manager’s culpability for failing to advise?

What about the positive obligations of due diligence imposed on company officers under WHS Legislation.  Is the health and safety industry trying to argue that those standards should not apply to health and safety managers?

Under WHS Legislation, due diligence includes taking reasonable steps to achieve several stated outcomes. 

To acquire and keep up-to-date knowledge of work health and safety matters.

To gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations.

I do not think anybody could suggest that health and safety managers do not need to meet these expectations. And if they fail to meet these expectations, surely, they should be liable in the same way as company officers.

To ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking.

To ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information.

To ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act.

While it may be true that health and safety managers cannot “ensure”, in the sense that they do not authorise capital expenditure or budgets to achieve this outcome, it is true in my view that health and safety managers are responsible for “ensuring” or at the very least knowing, if:

  • The resources and processes are suitable;
  • The resources and processes are implemented; and
  • The resources and processes are effective to manage the health and safety risks in the business. 

It cannot be right to say that a chief executive officer or another company officer who does not meet these obligations is any more liable than a health and safety manager.

The only possible, reasonable defence that a safety manager could have is they advised, and continue to advise executive management on the suitability, implementation and effectiveness of the health and safety management resources and processes, but that advice was ignored.

If health and safety managers do not have accountability to ensure (or at the very least have an intimate knowledge of) the suitability, implementation and effectiveness of the health and safety management resources and processes, then what is the purpose of having safety managers at all?

To verify the provision and use of the resources and processes referred to in [the above] paragraphs.

It could not possibly be arguable that a health and safety manager has a lesser responsibility to ensure that the resources and processes for managing health and safety risk in business are used than company officers.

Indeed, I can think of no higher duty placed on a health and safety manager than to provide ongoing verification to the business that the resources and processes in place to manage the health and safety risks in the business are in place, implemented and effective to control those risks.

Several years ago, I was at a safety conference, and there were three safety managers on stage talking through their latest success and innovation.  When it came time for questions I asked:

who is responsible for knowing if these things work?

The question seemed to stump the participants, and I got various, unsatisfactory answers ranging from descriptions of reporting processes through to abrogation of responsibilities to “risk owners”.

While everybody in an organisation has responsibilities for safety and health, surely it is the accountability of the health and safety manager, the person engaged to “manage” health and safety to know if health and safety management actually “works”?

If I want to know if my organisation is managing its health and safety risks as low as reasonably practicable, surely the person best placed to answer that question is the health and safety manager?  If they do not have oversight of the effectiveness of health and safety management in the organisation – when that is what they are employed to do – why should anybody else?

Why should the chief executive officer’s obligation to understand the effectiveness of health and safety management in their organisation be any greater than the health and safety manager’s?

It seems to me that until the health and safety industry is prepared to take ownership of health and safety management and stop hiding behind “line management responsibility” and a lack of “authority”, recognition as a “profession” is a long way away.

Until health and safety managers can clearly articulate how well the health and safety management system works in their organisation, and explain what they rely on to form that view, is the position really worthy of the title manager?

 

 

 

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.

Reflections on Safety: Reasonably Practicable

In August 2016, I wrote a WHS Update about the High Court decision, Deal v Father Pius Kodakkathanath [2016] HCA 31 which considered the legal test of Reasonably Practicable in the context of Australian health and safety legislation. Shortly after that, one of my connections on Linkedin posted an article about Reasonably Practicable. The article offered an engineering perspective on “As Low as Reasonably Practicable” (ALARP), stating:

… recent developments in Australian workplace health and safety law place proactive responsibilities on senior personnel in organisations, so they must be fully informed to make proper decisions

This sentiment seemed similar to an earlier engineering publication which argued that ALARP and “So Far as is Reasonably Practicable” (SFARP) were different and that this difference was, in part a least as result of “harmonised”, WHS legislation.

In both cases, I believed the articles were misaligned with the legal construct of Reasonably Practicable and misrepresented that there had been a change in the legal test of Reasonably Practicable prompted by changes to WHS legislation.

This background caused me to reflect again on the notion of Reasonably Practicable and what it means in the context of legal obligations for health and safety.

To start, I do take issue with the suggestion that changes to WHS legislation have resulted in a shift in what Reasonably Practicable means. The basis of this idea seems to be an apparent change in terminology from ALARP to SFARP.

The term SFARP was in place in health and safety legislation before the introduction of WHS and jurisdictions that have not adopted WHS legislation still use the term. For example, the primary obligations under the Victorian Occupational Health and Safety Act 2004 are set out in section 20, and state:

To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person …

Indeed, the architects of WHS legislation[1] specifically retained the term Reasonably Practicable because it was a common and well-understood term in the context of Australian health and safety legislation:

5.51 Reasonably practicable is currently defined or explained in a number of jurisdictions. The definitions are generally consistent, with some containing more matters to be considered than others. The definitions ‘are consistent with the long settled interpretation by courts, ‘in Australia and elsewhere.

5.52 The provision of the Vic Act relating to reasonably practicable was often referred to in submissions (including those of governments) and consultations as either a preferred approach or a basis for a definition of reasonably practicable.

5.53 We recommend that a definition or section explaining the application of reasonably practicable be modelled on the Victorian provision. We consider that, with some modification, it most closely conforms to what would be suitable for the model Act.  [My emphasis added]

In my view, it is unarguable that the concept of Reasonably Practicable has been well-settled in Australian law for a considerable period, and the concept has not changed with the introduction of WHS legislation.

If we accept that Reasonably Practicable has been consistently applied in Australia for some time, the next question is, what does it mean?

Reasonably Practicable is a defined term in most health and safety legislation in Australia.  Section 20(2) of the Victorian Occupational Health and Safety Act 2004, for example, states:

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—

 (a) the likelihood of the hazard or risk concerned eventuating; 

 (b) the degree of harm that would result if the hazard or risk eventuated; 

 (c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk; 

 (d) the availability and suitability of ways to eliminate or reduce the hazard or risk; 

 (e) the cost of eliminating or reducing the hazard or risk.

In the High Court decision, Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, Justice Gaudron described Reasonably Practicable as follows:

The words “reasonably practicable” have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words “reasonably practicable” are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

  • the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible”;
  • what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time;
  • to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[2] [my emphasis added]

Another High Court decision, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, emphasised similar ideas.

The case concerned that the death of a subcontracted worker during forklift operations.  Baiada was the Principal who had engaged the various contractors to perform the operations and in an earlier decision the court had concluded:

it was entirely practicable for [Baiada] to required contractors to put loading and unloading safety measures in place and to check whether those safety managers were being observed from time to time ((2011) 203 IR 396 at 410)

On appeal, the High Court framed this finding differently.  They observed:

As the reasons of the majority in the Court of Appeal reveal by their reference to Baiada checking compliance with directions it gave to [the contractors], the question presented by the statutory duty “so far as is reasonably practicable” to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada’s obligation “so far as is reasonably practicable” to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.[3] [my emphasis added]

In light of these, and other decided cases it is possible to form a practical test to consider what is Reasonably Practicable.  In my view, it is necessary for an organisation to demonstrate that they:

  • Have “Proper Systems” to manage the health and safety risks in their business; and
  • Exercise “Adequate Supervision” to ensure that the Proper Systems are implemented and effective to manage the risks.

What constitutes Proper Systems and Adequate Supervision is a judgement call that needs to be determined with regard to the risks.  It requires an organisation to balance the risk against the cost, time and trouble of managing it.[4]

It is also worth noting at this point, that Reasonably Practicable is, generally speaking, an organisational obligation.  It is not an individual,[5] and in particular, it is not an employee obligation.

I often see, when working with clients, safety documents required be signed by employees that the state that risks have been controlled to “ALARP”.  This is not the employee’s responsibility and the extent to which an employee does or does not control the risk to ALARP does not affect an employer’s obligations.

In broad terms, it is the organisation’s (PCBU or employer) obligation to manage risks as low as, or so far as is, Reasonably Practicable.  The employee obligation is to do everything “reasonable”.  This includes complying with the organisation’s systems.

It is the organisation’s obligation to identify the relevant health and safety risks and define how they will be controlled, ensuring that the level of control is “Reasonably Practicable.  It is the employee’s obligation to comply with the organisation’s requirements.

So, what might Reasonably Practicable look like in practice?

I recently defended a case that involved a worker who was seriously injured at work.  Although the injury did not result from a fall from height, the prosecution case against my client was based on failure to meet its obligations about working at heights.

My client had, on any measure, a Proper System for managing the risk of work at heights.  They had a documented working at height Standard and Procedure both of which were consistent with industry best practice and regulator guidance material.  All work at height above 1.8 m required a permit to work and a JHA.  The documented procedures prescribed appropriate levels of supervision and training.

In the three years before the relevant incident, my client had not had a working at height incident of any sort nor had they had a health and safety incident at all.  Based on all of our investigations as part of preparing the case, there was nothing to suggest that the incident information was not legitimate.

The activity which was being performed at the time of the incident was conducted routinely, at least weekly, at the workplace.

In looking to construct a Reasonably Practicable argument to defend the case what would we be trying to do?  In essence, I would be trying to establish that the incident was an aberration, a “one off departure” from an otherwise well understood, consistently applied system of work that was wholly appropriate to manage the risk of working at heights.

In practice, that would mean:

  • Producing statements from all of the workers who performed this task describing how it was performed in practice, and demonstrating that their understanding of the way the work was performed in practice was consistent with the requirements of the organisation’s documented systems;
  • Producing completed documentation from when the job had been performed previously, and demonstrating that the documentation was consistent with the organisation’s requirements, and completed correctly;
  • Producing statements from supervisors who approved the documentation and oversaw the performance of the work and demonstrating that their understanding of the way that the work was performed in practice was consistent with the requirements of the organisation’s documented systems;
  • Producing completed documentation from when the injured worker had performed the work previously and demonstrating that the documentation was consistent with the organisation’s requirements and completed correctly.

There may be other information that we would seek, but in broad terms, the information outlined above helps to build a case that there was a proper system that was effectively implemented and that:

  • All the workers understood the system,
  • All the workers understood how it ought to have been applied, and
  • It was applied in practice.

What happened?

Rather than be able to demonstrate that the incident was a one-off departure from an otherwise effective system, the evidence revealed a complete systemic failure.  While the documented system was a Proper System and complied with all relevant industry standards and guidelines, it was not implemented in practice.

Most compelling was the fact that, despite this being a weekly task, there was not a single instance of the working at height Standard and Procedure been complied with.  We could not produce a single example where either the injured worker or indeed any worker who had performed the task had done so under an approved permit to work with an authorised JHA.

All of the workers gave evidence that the primary risk control tool on site was a Take 5.  The Take 5 is a preliminary risk assessment tool, and only if that risk assessment scored 22 or above was a JHA required.  The task in question was always assessed as 21.  The requirement for a JHA, in the minds of the workforce, was never triggered and none of them understood the requirements of the Standard or Procedure.

To me, this case is entirely indicative of the fundamental failure of Reasonably Practicable in most workplaces.  In the vast majority of cases that I have been involved in the last 25 years, organisations have systems that would classify as Proper Systems.  They are appropriate to manage the risk that they were designed to manage.

Equally, organisations cannot demonstrate Adequate Supervision.  While there may be audits, inspections, checking and checklists – there is no targeted process specifically designed to test and understand whether the systems in place to manage health and safety risks in the business are in fact implemented and are effective to manage those risks.

In my experience, most organisations spend far too much time trying to devise the “perfect” Proper System.  We spend far too little time understanding what needs to be done to confirm that the System works, and then leading the confirmation process.

Reasonably Practicable has not changed.

Reasonably Practicable is not a numeric equation.

Reasonably Practicable changes over time.

Reasonably Practicable is an intellectual exercise and a judgement call to decide how an organisation will manage the health and safety risks in its business.

Reasonably Practicable requires an organisation to demonstrate that they:

  • Have “Proper Systems” to manage the health and safety risks in their business; and
  • Exercise “Adequate Supervision” to ensure that the Proper Systems are implemented and effective to manage the risks.

What constitutes Proper Systems and Adequate Supervision is a judgement call that needs to be determined with regard to the risks.  It requires an organisation to balance the risk against the cost, time and trouble of managing it.

[1] See the National Review into Model Occupational Health and Safety Laws: First Report, October 2008.

[2] Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 [53].

[3] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 [33].

[4] See also: Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58 and Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209.

[5] There are some exceptions to this where an individual, usually a manager or statutory officeholder will be required to undertake some action that is Reasonably Practicable.

This article is a general discussion about Reasonably Practicable and related concepts. it should not be relied on, and is not intended to be specific  legal advice.