Just following on from the feedback from my last post about process v outcome in safety management, below if a short video I did a little while ago that explains some of the concepts further.
Just following on from the feedback from my last post about process v outcome in safety management, below if a short video I did a little while ago that explains some of the concepts further.
Today I was reading a LinkedIn post lamenting the state of health and safety management, evidenced by too many “safety stickers” on a piece of machinery.
A commenter noted that the situation was “absolute madness“, which doesn’t keep anyone safe. Much of the conversation from there was focused on whose “fault” it was and we ended up with all of the usual suspects in the firing line – insurers, lawyers, consultants and so on. Probably quite justified too.
To my mind, this issue illustrates the disconnect apparent in health and safety management between “process” and “outcome“. It seems to me that health and safety management is obsessed with process – the way that we “do” safety. This obsession means that every few years somebody reinvents the way we do safety, or the way we do parts of safety. As evidence of this you only need to think of the transition from safety culture, to safety 1, through to safety 2 and now safety differently – with god only knows what in between. On a micro level, just think how many iterations of the JHA you have seen during your working career.
What makes this more interesting is the process doesn’t really matter. How you “do” safety is not really an issue. What is important is whether you can show your process achieves the outcome it was designed for.
The table below lists a series of cases looking at the “outcome” of understanding hazards. The “processes” were all different: documented, undocumented, buddy systems, on-the-job training and so on. But even where the processes were the same this did not determine the decision – the decision was determined on whether the outcome, and understanding of hazards and risks, was achieved.
So, the question is not how fancy, new or shiny your process is. The question is whether it achieves the outcome.
When you survey the range of safety commentary online, it is hard to escape the view that workplace health and safety is still primarily concerned with the behaviour of individual workers, and incidents are the consequence of careless individuals.
In my experience, this thinking does not align with any credible safety management theory, and it is not consistent with an organisation’s obligations under health and safety legislation. At its simplest, a worker’s individual carelessness makes no difference to the obligations of their employer, other organisations or other individuals under health and safety legislation.
The fact that a careless, individual worker did not meet their obligations under health and safety legislation, is no answer to the question of whether you met yours.
In the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited  NSWDC 28 (read decision) the Court canvassed the issue of careless and disobedient workers in detail.
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 an instrument 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 fell out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.
The Court said:
In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers.[my emphasis added]
Drawing on precedent cases, the Court made several observations:
The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable…
It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.
Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety.
In the PBHL case, the Court rejected any argument that carelessness by individual workers limited PBHL’s liability:
I do not see any scope for the application of a principle in this case that would limit the defendant’s liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA.
Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not. [my emphasis added]
The Court found procedures and instructions for the work were incomplete and workers were directed to start work when the JSA process was deficient and the JSA document was inadequate. The employer should have known both those things.
A common misconception is that safety prosecutions are all about identifying “fault” – who was at fault, or most at fault, when an accident occurred. This is not the case.
Employees who breach known safety procedures may be at “fault”. Indeed, individual workers and supervisors are prosecuted following workplace accidents. But an employees fault is no answer to the question, “did the employer meet their obligations under health and safety legislation?”.
The fact an employee breached safety procedures – even procedures they were aware of, does not prove an employer provided adequate training and supervision, nor does it prove an employer diligently enforced its systems of work.
Due diligence was supposed to be the health and safety “boogie man“, hiding under the beds of boards and CEOs – keeping them awake at night and focusing their minds on health and safety. The truth is the due diligence provisions in WHS legislation have made no practical change to the legal regulation of health and safety management at an executive level (whatever their theoretical legal effect might be) and continue the long-running lack of interest in health and safety at a boardroom level that Australian regulators have evidenced for years.
I am happy to be corrected on numbers, but as far as I can tell, since introduction of WHS legislation in about January 2012, there have been 819 workplace fatalities according to Safe Work Australia’s figures. I do not know how many of those resulted in prosecutions – it is extraordinarily difficult to draw the disparate data of health and safety regulators together to create a meaningful picture. But what does seem fairly clear, is that there have only been a handful of prosecutions under the due diligence provisions of WHS legislation. Moreover, every one of those has been against a small business and the person prosecuted has some hands-on, day-to-day involvement with the work being performed. There is no example as far as I can tell of a “company officer” who is removed from the day-to-day operations of the business.
Presumably, all of the boards and chief executive officers of large organisations who have suffered workplace fatalities are exercising effective due diligence. I think it is far more likely that the question has not even been asked and this level of executive management has not been subject to any scrutiny whatsoever about their oversight of health and safety management. Again, I stand to be corrected.
None of this should come as a surprise to anybody who has an understanding of health and safety prosecutions in Australia over the years. Nearly every example of “management” prosecutions have been against managers of small businesses with day to day involvement in the operations of the business.
A 2005 paper by Neil Foster found:
In cases involving formally appointed directors, almost every case involved a director who was heavily involved in decisions or actions “on the ground” which led directly to the incident concern (page 114).
Almost all the companies concerned (as far as can be judged from the reports examined) were either effectively “one-person” companies or at least small family companies with limited assets. … The directors concerned were almost all likely to have high personal knowledge of workplace procedures and, as noted above, many were heavily involved in the particular incident concern. There are no examples in these cases of a large company where a member of the board was held liable for failure to exercise “due diligence” in addressing the issue of safety (page 116).
(Personal Liability of Company Officers for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), (2005) 18 Australian Journal of Labour Law, 106)
Nothing, it seems has changed.
It seems hardly a day goes by without social media raising a new discussion about the merits or otherwise of “Zero Harm”.
As I understand the various arguments “for” and “against”, there seemed to be three broad categories of argument (although I do not discount further or additional arguments).
One argument says that Zero Harm is not a target, or a goal, rather it is an aspiration – something to pursue. If I may be so bold as to paraphrase Prof Andrew Hopkins, it is like a state of grace – something to be striven for, but never truly achieved.
Another argument, more of a middle ground, articulates that Zero Harm is “okay”, but may have an unintended consequence of driving adverse behaviour. In particular, it is argued that Zero Harm causes individuals and organisations to hide incidents or manipulate injury data in support of an organisation’s “zero” targets.
Yet another argument says that the language of zero is totally corrosive and destructive. It argues the language of zero – amongst other things – primes a discourse that is anti-learning and anti-community (See, For the Love of Zero by Dr Robert Long).
I would like to use this article to discuss two matters. First, the Safety Paradox in the context of aspirational statements, only using “zero” as a starting example. Second, to demonstrate how aspirational statements can be used against organisations. Both these points are closely related but ultimately, I want to argue whatever your “aspirations” you need to have “assurance” about the effect they have on your business.
The Safety Paradox is a concept I have been exploring for some time now. The Safety Paradox supposes that our safety initiatives have within them the potential to improve safety and cause harm.
In my view, the single biggest weakness in modern safety management is the assumption that safety management initiatives are “good“. I have no doubt that the proponents of Zero Harm suffer from this assumption.
The question of whether Zero Harm is good or bad is, on one view, totally irrelevant. If you are a Zero Harm organisation the only thing that really matters is the impact Zero Harm has in your workplace.
My personal experience with Zero Harm means that I remain unconvinced of its benefits, but I do not feel I am closed to being persuaded otherwise, it is just that I have never worked with an organisation that has been able to address the three questions proposed above. Moreover, in my experience, there is usually a significant disconnect between corporate intentions and operational reality: What management think is going on is often very different from what the workforce believes.
Considering all the published criticism of Zero Harm as a concept, I do not think it is unfair that the onus should be on Zero Harm organisations – including government regulators – to demonstrate that Zero Harm achieves its intended purpose and does not have a negative impact on safety.
Now, this is more than a matter of semantics. Aspirational statements can, and are used against individuals and organisations.
On 21 August 2009 and uncontrolled release of hydrocarbons occurred on the West Atlas drilling rig operating off the North-West coast of Australia. The incident reawakened the Australian Public to the dangers of offshore oil and gas production, leading to a Commission of Inquiry into the event.
During the Commission the aspirational statements of one organisation was used against an individual. The criticism was that a contractor had removed a piece of safety critical hardware, but not replaced it, and had not been directed by the relevant individual to replace it.
There was some discussion about a presentation provided by the organisation, and that resulted in the following exchange.
Q: All right. If the operator could go to page 0004 of this document, that overhead, which is part of the induction training of drilling supervisors, is entitled “Standards”. Do you see that?
Q: If you could read what is said there, you would agree it captures, if you like, a profound truth?
Q: Do you agree that that is a truth not simply applicable to drilling supervisors but also applicable to PTT management onshore?
Q: I want to suggest to you, sir, that your decision not to instruct Mr O’Shea or Mr Wishart to reinstall the 9-5/8″ PCC represents a very significant departure from what is described on that screen.
A: Yes, I can concede that.
Q: Without wishing to labour the point, your decision not to insist upon the reinstallation of the 9-5/8″ PCC was a failure in both leadership and management on your part?
A: Yes, that’s what it seems now.
Q: With respect, sir, I’m suggesting to you that, faced with the circumstances you were, your deference, as it were, to not treading on the toes of the rig personnel and insisting on the reinstallation was, at that point in time, a failure in leadership and management on your part.
A: I will accept that.
How many of these untested platitudes infect organisations, waiting for the opportunity to expose the business to ridicule and criticism?
Or consider if you will, the following scenario. An employee is dismissed for breaching mobile phone requirements when his mobile phone was found in the cabin of the truck he had been operating.
The employee bought an unfair dismissal claim and the presiding tribunal found that there was a valid reason to terminate his employment. However, the tribunal also found that the termination was unfair for several procedural reasons. In part, the tribunal relied on the level of training and information that the employee had been provided about the relevant procedure.
The training documentation provided did not clearly demonstrate that employees were trained in this new procedure and signed accordingly, or that it was given a significant roll-out to employees commensurate with their ‘zero tolerance’ attitude to incidents of breaches, given how this case has been pursued (my emphasis added).
If you are going to have a “Zero” aspiration, that has to be reflected in your business practices. It seldom is.
What I think these examples illustrate is an inherent weakness in the way health and safety is managed. We, as an industry, are overwhelmingly concerned with “how” we manage health and safety risks without paying anything like enough attention to whether the “how” works.
Do all of our aspirations and activities actually manage health and safety risks, or are we just keep keeping people busy or worse, wasting their time? As importantly, how do we know our initiatives are not part of the problem?
BP’s corporate management mandated numerous initiatives that applied to the U.S. refineries and that, while well-intentioned, have overloaded personnel at BP’s U.S. refineries. This “initiative overload” may have undermined process safety performance at the U.S. refineries. (The Report of the BP US Refineries Independent Safety Review Panel (Baker Panel Review), page xii).
There is no doubt that safety is not the only management discipline that suffers from these deficiencies: “style over substance” and “window dressing”. But if we claim the high moral ground of protecting human health and life, then perhaps the onus on us to show what we do works, is also higher.
My social media feeds have been abuzz recently following the release of Safe Work Australia’s report, Measuring and Reporting on Work Health & Safety. In part (or perhaps wholly) it is my fault for suggesting the report focussed on activity over assurance and could be problematic in that regard. (see for example LinkedIn, Measuring and Reporting on Work Health & Safety, Everything is Green: The delusion of health and safety reporting).
In several comments and emails, I have been asked to provide some “practical” examples. While it is difficult to provide something that will satisfy everyone, below I offer a few questions that might be useful to interrogate the efficacy of health and safety reporting in your organisation.
I would preface the example below with an observation on due diligence.
Despite what several commentators and marketing campaigns might have you believe, due diligence cannot be satisfied with a checklist, or by attending a WHS training session. The concept of due diligence existed long before WHS legislation, and it has been examined by courts and tribunal in many areas of business. One of the underpinning concepts of due diligence is “independent thought”.
It is incumbent on an individual who is charged with exercising due diligence to exercise a level of independence to understand the “thing” they are required to be diligent about. If that thing is safety, due diligence requires more than passively accepting a monthly WHS report. Due diligence requires independent thought and challenge to understand what you need to know about health and safety and whether the report is informing you about what you need to know.
So, in the spirit of that inquiry, what questions might you ask?
What is the purpose of health and safety reporting?
It might seem trite, but I think it is a legitimate question to start with. After all, if we do not start with a purpose, how to we judge effectiveness?
To many, the purpose of health and safety reporting might seem obvious, but if the history of workplace health and safety has taught us nothing else in the last 30 years, it has taught us about the dangers of assumptions. Do not assume to know the purpose of anything in health and safety – actually know the purpose and test against that purpose.
In many organisations, health and safety reporting is sold as a legal requirement, so in keeping with that theme, perhaps the purpose of health and safety reporting might be
To demonstrate the extent to which our health and safety risks are managed so far as reasonably practicable.
But before the comments start flowing about legal expectations being our minimum standards (sigh!), perhaps we can agree on something like:
To demonstrate the extent to which our health and safety risks are managed.
For those of you who aspire to “zero”, I will leave it to you to come up with your own purpose statement for health and safety reporting. Good luck.
What is the purpose and relevance of an element of health and safety reporting?
Health and safety reports might be filled with all sorts of statements and data. But what purpose do they serve?
A very popular health and safety reporting metric is the number (or percentage) of corrective actions closed out following an incident investigation.
On its face, that statistic is nothing more than a measure of activity – how many things have been done against how many things should have been done. On its face, and at its highest, it might be a measure of “operating discipline” – we are good at doing the things we said we would.
But if the purpose of health and safety reporting is to demonstrate the extent to which our health and safety risks are managed, it does not seem to add much value at all.
Another way to think about a statistical set of action items being closed out is to consider them as an indicator of the effectiveness of incident investigations. After all, the quality of incident investigations is very important to the overall quality of health and safety management and something that inquiries are likely to look at in the event of an accident (See for example Everything is Green: The delusion of health and safety reporting)
Perhaps if people had spent more time asking this question about injury rate data over the past 25 years, it would not have pride of place in safety management today.
What assumption do we have to make if an element of health and safety reporting is going to have value?
If we argue that the number (or percentage) of corrective actions closed out following an incident investigation tells us something about the quality of incident investigations, what assumptions do we have to make?
If 100% of corrective actions from incident investigations have been closed out, and I have a sense of comfort from that, I am making several assumptions. I am making assumptions:
None of these issues are revealed by the number (or percentage) of corrective actions closed out following an incident investigation.
Indeed, if a health and safety report could show 100% of corrective actions from incident investigations have been closed out without any of the assumptions above being true.
And if these assumptions are not valid, and if a major accident happens, and if it is found that incident have never been properly investigated, how can it be said that an organisation and its management was serious about health and safety and exercising due diligence?
I have always believed, at its core, health and safety management is about controlling health and safety hazards.
To some extent, I do not care how organisations say they manage health and safety – safety 1, safety 2, safety differently, visible felt leadership, rules, procedures, prescription, discretion, people are the problem, people are the solution etc., etc., etc. – prove to me that it works. Prove to me that what you do controls the health and safety hazards in your business.
If two people die in an electrical incident at your workplace, nobody cares what your last safety culture survey reveals. You need to demonstrate how the risk of electrocution was managed in your organisation, and whether it was managed effectively.
No one cares what your TRIFR rate is, no one cares how many action items have been closed out, no one cares how many safety interactions your managers have, no one cares how many hazards have been reported, no one cares how many pre-start meetings you have conducted ….
The relevant issue is whether health and safety hazards have been effectively managed.
The things we do in the name of health and safety only matter to the extent that they have a role to play in managing health and safety hazards.
If the number of action items closed out after an incident investigation is important to how hazards are managed, we should be able to explain how and demonstrate the relationship.
Health and safety reporting only matters if it gives us an insight into how well we manage health and safety.
What does your health and safety reporting really tell you?
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  WASCA 117 , 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:
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:
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.
If you have followed my thoughts over the past few years, you will know that one of my concerns about the increasing emphasis on legal sanctions and penalties for health and safety breaches is the likely increase in legal risk management strategies at the expense of health and safety management. (See for example: $450,000: Is this what we want from prosecutions?; Is this really what due diligence was designed for?; Rethinking safety prosecutions part 2)
This concern has poked its head up again in the recent Federal Court decision, Grant v BHP Coal Pty Ltd (No 2)  FCA 1374. The case dealt with important issues about the rights of an employer to insist employees undertake a medical assessment with a doctor of the employer’s choice, a topic that has pervaded the management of injured workers for many years.
This topic is important and serious, and it has implications for both employees and employers. But the case also touched on another, far less well understood issue – the rights of employees to claim to self incrimination and refuse to answer questions in a company’s internal safety investigation.
Does an employee have a legal right refuse to participate in your internal incident investigations on the basis that in doing so, they may expose themselves to the threat of prosecution?
The protection against self incrimination has long been recognised in health and safety legislation. Legislation recognises the difference between “voluntary” interviews and “compelled” interviews. In the latter case, information provided to a regulator during a compelled interview cannot be used against the person providing the information, except in very limited circumstances, such as perjury.
In the Grant case, the employee had been terminated following a long running dispute over his capacity to return to work. As part of that process, Mr Grant attended an interview about his refusal to attend a medical appointment with a company nominated doctor. During that interview, Mr Grant refused to answer questions unless they were put to him in writing.
During the various appeal stages of his case, Mr Grant asserted that he has refused to cooperate in the investigation on the basis of his privilege against self incrimination.
The Federal Court noted at :
Privilege against self-incrimination means that a witness cannot be compelled to answer questions that may show the witness has committed a crime with which the witness may be charged if the answers may place the witness in real and appreciable danger of conviction: Sorby v The Commonwealth (1983) 152 CLR 281 at 294.
The Federal Court went on to confirm the privilege against self incrimination :
Unfortunately the Federal Court said that they could not decide the issue on the facts of the case. Or more eloquently, they said they could not decide it in “such a vacuum of facts” .
The Court did not need to decide the question of self incrimination to decide the case, but clearly reinforced its relevance in workplaces.
Of course, the next question that follows, is what is an employers rights in relation to an employee who refuses to participate in an investigation on the basis of self incrimination? Can they discipline them? Can they terminate their employment?
I do not want to try and give a definitive answer here, but it is at least arguable that any “adverse action” taken against an employee because they were exercising a legal right could amount to a breach of the General Protection provisions of the Fair Work Act, and leave the employer liable to penalties.
If the purpose of health and safety legislation is to help ensure safer workplaces, in my view, there is a need for constant vigilance to understand when the legislation undermines, as opposed to promotes, better safety management. If the legal risks have become so acute that employees no longer need to cooperate with safety investigations, it may at least be time for a discussion on the merits of penalties and prosecutions.
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
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.
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:
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?