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.

 

Risky Conversations, The Law, Social Psychology and Risk

New book by Dr Rob Long, Greg Smith and Craig Ashhurst

It is with pleasure I can announce the publication of my new book, Risky Conversations, The Law, Social Psychology and Risk which has been produced in conjunction with Dr Robert Long and Craig Ashurst.

The book is also the 5th in Dr Long’s series on the Social Psychology of Risk.

Risky Conversations

The book is the result of three days of conversations between myself, Dr Long and Craig in February 2016 when we gathered together with Rick Long of InVision Pictures and recorded conversations on twenty three topics in risk and safety. The recorded conversations were transcribed by Max and Sylvia Geyer and then we wrote commentary into the margins of the book (see an example below).

The book is 160 pages and included in the $49.95 price is access to all the videos. In addition a talking book of all the conversations can be purchased for $10.

The book can be purchased here: http://cart.humandymensions.com/?product_cat=books&paged=1

A sample of the Introduction and Chapter 1 can be downloaded here: Risky Conversations Chapter 1

You can see a sample of one of the videos here: https://vimeo.com/162034157

Perth Book Launch: A full launch will be held in Perth on 11 August where all three authors will be present in conjunction with a training day on the Social Psychology of Risk. Details to be announced soon in conjunction with a training day in the Social Psychology of Risk in Perth (to be held in conjunction with IFAP).

Melbourne Book Launch: Kevin Jones (safetyatworkblog) will be launching the book in Melbourne on 27 July (lunch time on day two of the SEEK program). Places for the launch are strictly limited to 30 and can be secured by email toadmin@humandymensions.com Download the SEEK flyer here: http://cart.humandymensions.com/wp-content/uploads/2016/05/SEEK-Program-Human-Dymensions.pdf). All people participating in the SEEK program receive a complimentary copy of the new book.

Dangerous Goods amendments in Western Australia

Amendments to the Western Australian Dangerous Goods Safety (Road and Rail Transport of Non-explosives) Regulations 2007 will take effect from 1 January 2016.

The amendments clarify the duties of parties in the transport chain, such as consignors, loaders and prime contractors and rail operators. For example, a new regulation 114(5) provides:

(5) A prime contractor or rail operator must not transport a load of dangerous goods (other than a placard load) in or on a cargo transport unit if —  

(a) the load is placarded; and  

(b) the person knows, or ought reasonably to know, that the placarding is false or misleading in a material particular.  

Penalty for this subregulation: a fine of $10 000. 

You can access a copy of the amending legislation HERE.

The amending regulations also refer specifically to the  Australian Code for the Transport of Dangerous Goods by Road and Rail, and include the following definition:

ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail (also called the Australian Dangerous Goods Code) published by the National Transport Commission, Edition 7.4 (ISBN 978-1-921604-69-0), as in effect on 1 January 2016, including (for the avoidance of doubt) its appendices;

Importantly,  a new ADG Code was published on 18 December 2015.

You can access the ADG Code and further information about it HERE.

New guidance material for lifting and related operations

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Effective from 7 December 2015, Safe Work Australia has published 10 guides and information sheets on managing the risks associated with inspecting, maintaining and operating cranes, and plant that can be used as a crane and quick hitches for earthmoving machinery. This move is part of an agreement by SWA members in 2014 to replace the draft model WHS Code of Practice for cranes with guidance material.

You can access the SWA “cranes guidance material” page HERE.

This approach does create some interesting jurisdictional issues. For example, New South Wales which operates under the WHS legislation has an approved code of practice for managing the risks of falls at a workplace – which means it has a specific legislative standing, different from guidance material. This code of practice includes a section on “work boxes“, but it has different information from the material set out in the SWA guide on “crane lifted work boxes“.

For example, the SWA guide states that work boxes should:

  • have sides not less than 1 metre high;
  • have fall-arrest anchorage points;
  • be correctly tagged;
  • have lifting slings supplied to be attached to the lifting points by hammerlocks or moused shackles;
  • have a safety factor for each suspension sling of at least eight for chains and 10 for wire rope; and
  • where provided, a door is to be inward opening only and self-closing with a latch to prevent unintentional opening.

However, none of these points are mentioned in the approved code of practice.

A common failing of safety management systems is the level of internal inconsistency that develops as layers of safety management processor built up over time. It seems that the regulator is not immune from this problem.

 

World Safety Organisation Educational Award

Some time ago I posted about the publication of my new book, Contractor Safety Management (see link).

Today, I am very proud to announce that the book has been awarded the Educational Award for 2014 by the World Safety Organisation (www.worldsafety.org).

The nomination criteria for the Award is:

Institution, company, training entity, individual, etc., with an above-average program of educational nature in the fields of environmental/occupational safety and health, fire science and safety, public safety, healthcare safety, transportation safety, or similar programs; actively (and above average in) contributing to the protection of people, property, resources and the environment through innovative programs; with distinctive concern for the education of professionals and general public in the disciplines of safety and allied fields.

Once again my sincere thanks to all of the contributors to the book, and especially to Dr Janis Janz for nominating the book (and all of the work that was done to produce it) for the award.

Contractor safety management book

New requirements for Road Transport safety

On 17 December 2013 the Road Safety Remuneration Tribunal handed down its first Order, which will have health and safety implications for businesses involved in, or engage truck drivers.

Orders of the Road Safety Remuneration Tribunal have the same practical effect as legislation, and there is the potential for substantial penalties if the requirements are not complied with.

In broad terms, the Order applies to Road Transport Drivers, and imposes requirements on employers, “hirers” and “participants in the supply chain“. If you employ truck drivers, or engage/contract them to deliver things to your business or move your product, then you should consider the application of the Order.

An important health and safety requirement is the need to develop a “safe driving plan” in relation to “long distance” operations (basically where the distance travelled exceeds 500 kilometres).  The plans also require that a “participant in the supply chain” witness the commencement and conclusion time of each pick up by signing the safe driving plan. Relevantly, a “participant” is:

a consignor or consignee, intermediary or operator of premises for loading and unloading.

The Order also specifies training requirements as well as the requirements for documented drug and alcohol policies covering road transport drivers. These requirements apply to both employers and hirers.

The orders take effect from 1 May 2014.

You can access a PDF version of the Order here. You can also review a copy of the Order in Lawstream:

www.lawstream.com.au

Username: Remuneration

Password: password

(Username and password are case sensitive)

For more information about using Lawstream to track and manage your legal and other compliance obligations just email me, gsmith@stegroup.com.au.

Contractor safety management series: Introduction

I have just finished finalising a presentation for a case involving the death of a worker employed by a subcontractor that was 2 companies removed from the Principal. The case involved the prosecution of the Principal in respect of a fatality.

Earlier this year I prepared a post and presentation on the Hillman v Ferro Con (SA) decision, which also involved the death of a worker employed by a contractor. You can access the blog post and video presentation here.

Contractor safety management seems to be an ongoing struggle for a lot of businesses, so I thought that I would do a series looking at a number of cases that examine the issues around contractor safety management. At the end of the series I will try to bring together a number of the issues raised to see if we can’t structure some key guiding principles.

At this stage, I am planning a series of 10 or 11 video presentations looking at some of the key cases across a number of jurisdictions over the last few years.

The first case in the series is Nash v Eastern Star Gas, a recent decision of the New South Wales Industrial Court which was handed down on 6 September 2013. You can access the blog post and video presentation here.

I hope you enjoy the series, and I look forward to any comments or feedback.