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.

Systems as Imagined v Systems in Practice

The recent NSW Supreme Court decision, Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221 is another in a long line of decisions that highlight the disconnect between safety management systems as they are documented, and what occurs in practice.

Documented safety processes are important.  They provide guidance on how safety is managed and evidence that an organisation is meeting its obligations.  However, where an accident reveals long-term, systemic non-compliance with obvious safety expectations documented safety processes do not provide a defence, often they do not provide mitigation, and in cases such as this they are an aggravating circumstance.  As the Court noted:

The vast range of induction and supervising protocols adopted by the respondent or in force at its premises serves not to relieve the respondent of its responsibility for safety but on the contrary powerfully reinforces the extent to which the respondent failed to put them into practical effect.

For documented safety processes to add value they must:

Be consistent with the organisations risks and obligations;

  1. Be completed correctly; and
  2. Reflect what actually happens in practice.

All too often, documented safety management systems are one of the biggest contributors to the illusion of safety: the gap between the management of health and safety risk as we imagine it and what actually occurs in practice.

These are concepts that I have explored in my recent book, Risky Conversations: The Law, Social Psychology and Risk, and its accompanying video.

You can access a more detailed article about the case here.

 

Work as it is actually performed: investigating when nothing happens

There has been some discussions and commentary in various online forums recently looking at the issue of “positive” incident investigations.  Although there seems to be a variety of nuances in the description of positive investigations they focus on “what went right“.

Some of these investigation models have also incorporated a broader management technique of “appreciative enquiry“, which, as I understand it, came to prominence in the late 1980’s (see HERE for examples and information about appreciative enquiry).

The discussion about these frameworks describes the “what went right” philosophy as a positive view of investigations. It is a philosophy that does not focus on blame, but promotes discussion:

The benefit of that approach is that the conversation with witnesses is an entirely positive one. It is not about what could have happened. Not about the doom and gloom narrowly averted. Rather, it is about their heroic act, well designed process or lucky event that allowed us to avoid the adverse outcome. People love talking about positive things particularly if they had something to do with them. (https://www.linkedin.com/pulse/investigate-your-serious-near-misses-positive-way-michael-tooma?trk=prof-post)

 In my view, when organisations are not mature enough to talk about issues in a non-judgmental way, without attribution of blame, the “what went right” enquiry may present a risk.  It may be seen as a contrivance, with the facilitator spending a lot of their time saying things like “remember this is not about blame“.

In “mature” organisations the need to construct a system of enquiry to focus on the positive and avoid discussion of blame is largely redundant because the participants are aligned with and support the goals of the organisation.  Their desire to support the goals of the organisation overrides any petty, personal concerns about individual praise or blame.

If you have ever been privileged enough to work with high-performance sporting teams or elite military forces, you will understand this idea.

A precondition of belonging to these groups is the willingness to say and hear things that support the group’s objectives without personal agendas or taking personal affront.  The newest member of the team has a license to speak frankly about the performance of the most senior, and the most senior is expected to accept that conversation, not in the context of them personally, but in the context of the overall objectives of the team.

The extent to which organisations have to contrive a system whereby participants are corralled by a “what went right” narrative says a lot about the culture of an organisation and the “buy in” that people have to team objectives.

That is not to say that appreciative enquiry or investigating “what went right” does not have a place in organisations, nor that it could be an important building block along the way to developing something like an elite performing team.  But as a word of caution, you should also understand some of the paradoxes involved.

The Safety Paradox supposes that any initiative done in the name of health and safety has the potential to both improve and damage health and safety in a workplace.

Having sat through appreciative enquiry “management brainstorming sessions” and incident investigations there is a strong sense of “flavour of the month” initiative as well as an even stronger sense of avoiding accountability.  An overriding impression of a process delivered without context or explanation – why this and why now?  The end product is a wall of butcher’s paper populated with sweeping motherhood statements and management speak, completely absent any meaningful desire to manage known problems.

The pendulum, it seemed, had swung too far the other way.

Again, that is not to say it is not an idea that should not be explored and applied.  But it needs context.  It needs explanation; it needs skilful facilitation, and it needs, perhaps most importantly, dedicated and meaningful follow-up with implementation.  Otherwise?  Well, we have all been in “those” types of sessions.

Another aspect of the “what went right” investigations is the requirement for something to have occurred.  There needs to be an incident or near miss to trigger the enquiry.

A risk in the “what went right” enquiry (without more) is that it can contribute to the illusion of safety.

The illusion of safety is the gap between safety management as we imagine it in our organisation and what happens in practice.  Incident investigations can be a powerful tool in exposing the illusion of safety because they have the potential to illustrate the disconnect between what we think happens and what is happening.  By just focusing on “what went right“, particularly in near miss incidents, we may fuel the illusion of safety and create a narrative that our systems are working to protect us from these incidents – effectively papering over the cracks in the edifice.

While avoiding blame and promoting open discussion is important, so too is avoiding sugar-coating the situation.  Again, balance, transparency and genuine enquiry ought to be the goal.

I would like to suggest something different – investigating work as it is performed; investigating when nothing happens.

An investigation framework that I find useful uses systems as opposed to causal analysis.

It supposes that organisations have systems and processes in place to prevent certain things from happening and tries to understand:

  1. What should have happened: how should these are systems and processes have been applied in a particular case to prevent the particular thing from happening; and
  2.  What happened: how was the work performed in the particular case.

From there, we identify and try to explain the “gap” between what should have happened and what did happen.

This framework is not concerned with “causation“.  All identified gaps are given equal attention and analysis, regardless of their potential causal relationship with the incident.  They are all important because they all represent a potential systemic weakness in safety management which, given a different factual matrix, could be causal.

The attractiveness of this framework is that it can help you identify systemic weakness when nothing has happened.

A few years ago I was involved in an incident leading to the prosecution of a client following a working at heights incident.  The incident and the various investigations that followed revealed the usual list of suspects:

  •  Training not followed;
  •  Procedures not followed;
  •  Risks not identified;
  •  Lack of supervision;
  •  Documentation not completed properly, and so on.

As part of working with that client, we applied the systems analysis framework to a range of other, similar high-risk work, including:

  •  Examples where the same task had been performed;
  •  Examples of different working at heights tasks; and
  •  Examples of other high-risk work tasks, including lifting operations and confined space entry.

In every case, the work had been performed “successfully“, without incident or near miss.

However, the analysis of the gap between how the work should have been performed and how it was performed demonstrated the same types of “failures” in the way that work was ordinarily performed as when the incident occurred.

In other words, even when work was “successful”, procedures were not followed, risks were not identified as well as they could have been, training was not complied with, documentation was not completed and so on.

The systemic weaknesses were not just present at the time of the incident.  They were characteristic of the way work was performed in the days and months previously.

The incident was not a one-off departure from an otherwise “good” system – it was simply evidence of otherwise broader, systemic failures.

Moreover, this system analysis approach highlighted weaknesses hidden by the traditional safety metrics – injury rates, action items closed out, hazards reported, management site visits, etc. – all of which were “green“.

I have applied this method of review from time to time over the years where I have been able to convince clients of its value.  On every occasion it brings to light the gap between the safety as imagined and safety in practice, lifting the veil on the illusion of safety.

In the Pike River Royal Commission, the Commission carefully examined Pike River’s system of incident investigation to understand if it “worked“.  They reviewed 1083 incident investigations and did a detailed examination of 436 of them.  Managers were subject to examination of their understanding of the investigation process, and ultimately the Commission found that “incidents were never properly investigated“.

You can see an example of the examination of management HERE.

Weakness in incident investigations, amongst other important systems elements, formed the basis of significant criticism of Pike River and its management:

 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 the health and safety management was not taken seriously enough at Pike.

 What do your philosophy and implementation of incident investigations say about you?

The Safety Paradox and the challenge of health and safety assurance

I am currently working on a new book on practical health and safety assurance, which I hope to have out by the end of the year, but I recently came across an article published through LinkedIn entitled Six Mistakes H&S Managers Make with Occupational Health & Safety.

I do not want to comment on the article itself, although it is worth a read. It was the following paragraph that caught my attention, and goes to the heart of what I am trying to explore in the context of health and safety assurance.

Habits are what save us when our mind is not consciously on the job. Many of the health and safety systems we use (such as Take-5s, prestart talks, and health and safety observations) are aimed at creating habits in people’s minds so that they are constantly aware of hazards in the work environment, and can react when they see something that is about to hurt them. Each little action and health and safety discussion might not prevent an incident itself, but they all add together to create valuable health and safety habits. Do not think that you are repeating this training or talk for the millionth time and that you are wasting time and money. When the crisis hits it will probably be these repetitive sessions that will prevent great harm or loss.

First, let me explain what I mean by the Safety Paradox. The Safety Paradox is my theory that all health and safety initiatives have within them the potential to both improve and undermine safety, and one of the significant ways that safety initiatives undermine safety is by contributing to the Illusion of Safety.

The Illusion of Safety is characterised by the Gap between the safety system as we imagine it, and the system in practice, and it is often caused by activity: Because we are doing a lot of stuff for safety, it must all be good and positive and lead to a good safety outcome.

We know that not all safety initiatives are always good, and that safety initiatives can undermine safety.

Research into JHAs and other frontline risk assessment tools shows how they can disengage the workforce from the organisation’s health and safety message, but at the same time create an unfounded sense of comfort in management that workers have – and are using – appropriate tools to manage risk (See for example: D. Borys, Exploring risk awareness as a cultural approach to safety: Exposing the gap between work as imagined and work as actually performed).

The Baker Panel Review into the BP Texas City Refinery Explosion referred to “initiative overload”, identifying that many well intentioned safety initiatives may have overloaded refinery personnel to the detriment of safety.

To my mind, the assumption that we are doing something in the name of health and safety, and therefore it must be good and it must be achieving the purpose for which it is intended is one of the foundational building blocks for the Illusion of Safety, and must be challenged.

So, in this case when the author says:

Many of the health and safety systems we use (such as Take-5s, prestart talks, and health and safety observations) are aimed at creating habits in people’s minds so that they are constantly aware of hazards in the work environment, and can react when they see something that is about to hurt them

Health and safety assurance requires us to understand that this outcome, this purposecreating habits in people’s minds so that they are constantly aware of hazards in the work environmentis actually being achieved. The assumption that the purpose is being achieved flies in the face of the Safety Paradox, contributes to the Illusion of Safety and undermines safety and health in the workplace.

Health and safety assurance requires us to understand the potential negative outcomes of these safety activities. For example, to what extent does the constant requirement to fill out a piece of paper before every job (i.e. a Take – 5) desensitise the workforce to risk, trivialise risk or make the workforce think that management doesn’t trust them? To what extent does the workforce believe that these pre-job processes and signature collections are management’s attempt to, adopting the language of the Borys article above, “cover their arse”?

It is wholly insufficient for the safety industry to say that these safety initiatives are theoretically good processes, but not understand the potential negative outcomes nor to invest the time and energy to understand whether the safety initiatives are achieving their intended purposes.

And when the author goes on to say:

Do not think that you are repeating this training or talk for the millionth time and that you are wasting time and money. When the crisis hits it will probably be these repetitive sessions that will prevent great harm or loss.

surely there must be some onus to understand whether this thing that has been done for the “millionth time” is not having a negative effect? I can think of nothing more damaging for health and safety in the workplace than doing something for the “millionth time” and not knowing if it is achieving its purpose, or more damaging, undermining its intended purpose.

The safety industry must be accountable for its initiatives, and management must hold the safety industry accountable. It is simply unacceptable to continue to pump initiatives and processes into organisations on the theoretical assumption that they are “good” for safety without being able to demonstrate that those initiatives and processes are achieving the purpose which they were designed.

By the way, your injury rate performance is not a measure of whether your health and safety initiatives are achieving the purpose.

 

 

 

Due diligence: understanding performance or measuring activity?

This morning I was doing some work with contractors talking about the concept of health and safety assurance, both in the context of reasonably practicable and due diligence.

One of my areas of interest and concern when working with organisations to understand if their health and safety risks are being managed, is that a great deal that is done in the name of safety and health is characterised and measured in terms of “activity”. In my experience, very little regard is had to the “purpose” of the activity, whether that activity achieves the relevant purpose and whether the purpose is beneficial for safety and health outcomes.

I have looked at these issues previously in my articles, A short primer on due diligence and Lead indicators: Reinforcing the illusion of safety.

As an example, the group discussed the idea of management “walk arounds” or safety conversations. Amongst the group we were able to identify a number of potential “purposes” for this activity, including to confirm whether risks were being controlled, to demonstrate management commitment to safety and to understand any concerns from the workforce.

Most of the organisations involved in the discussion had the “number” of safety conversations managers held as a key performance indicator.

In every case however, the only measure applied to this management task was the number done, that is a measure of “activity”. There was no measure, or even consideration given to, whether this management activity was effective in achieving the purpose. Moreover, none of the organisations had even turned their mind to the possible negative ramifications of this management activity.

In my experience, whatever the intention of the manager while conducting a walk around or safety conversation, if they are perceived by the workforce as being an unnecessary intrusion on their working day or worse, a manager simply trying to tick their KPI’s for the month, they can have profound, negative effects on health and safety and completely disengaged the workforce from the safety message that managers are trying to deliver.

100% compliance with the scheduled numbers of management safety conversations might look good on a traffic light scorecard and might give a sense of comfort, but there is a significant risk that the activity is actually undermining safety performance and contributing to the illusion of safety.

I am not saying all management activities are negative, I am just saying that most organisations do not know what the impact is. Rather, we make assumptions based on the numbers – if we do a lot, the outcome must be good.

Is it?

Having finished the morning discussions, I was reading the news from ABC online, when I came across the following article:

Eddie McGuire’s comments ‘incredibly disappointing’, Cabinet ministers say

The article deals with the recent controversy over comments by various AFL football commentators in the context of violence against women.

Christian Porter, the Social Services Minister linked the comments to the Government’s new $30 million domestic violence campaign, and the report goes on to state:

According to Mr Porter, the Stop it at the Start campaign has already had 25 million individual views, making it the most successful domestic violence campaign launched by any Government. [My emphasis added]

I could accept this comment if the “purpose” of the campaign was to get as many individual views as possible. However, I would have thought a more appropriate measure of success for a domestic violence campaign – one that is presumably linked to its “purpose” – would be a reduction in the instance of domestic violence.

A similar dilemma occurred a number of years ago in relation to Victorian railway safety and the “dumb ways to die” campaign. This campaign was also hailed as a success based on its very high level of traction in social media, although I understand the number of fatalities on Victorian railways actually increased (see for example Dr Rob Long’s comments in Dumb Ways to Die and a Strange Sense of Success).

It seems that style over substance, or activity over purpose is not limited to health and safety management, but it does represent a threat to the management of whatever problem it is applied to.

Health and safety initiatives are, or at least should be, designed to achieve outcomes in the workplace. They are not initiatives for their own sake, nor are they perpetuated as wellsprings of activity.

Every health and safety initiative should have a clearly articulated understanding of its purpose, and a set of criteria by which that purpose will be achieved. We also need to bear in mind the ongoing safety paradox; while safety initiatives have within them the potential to improve health and safety, equally they have the potential to undermine health and safety and make our workplaces less safe.

What do you know about your safety initiatives?

 

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.

$450,000: Is this what we want from prosecutions?

I have written on the topic of safety prosecutions before (Do we need to rethink safety prosecutions?, Rethinking safety prosecutions part 2 and Is this really what due diligence was designed for?), and a recent article posted online by the Safety Institute of Australia Ltd (VIC: Company fined $450,000 after teenager dies in forklift rollover) has prompted me to write on the topic again, and ask the safety industry to really question what it expects from health and safety prosecutions, and whether the current system delivers against those expectations.

In brief, the prosecution arose out of a fatality on a  farm in Victoria.

The owner of a labour hire company, who was engaged to provide workers to pick snow peas on the farm, bought his 15-year-old son and two friends, aged 16 and 17 to help with the work. The owner left the property and soon after the boys began driving a forklift, which had been left unattended and with keys in the ignition, in an unsafe manner. The driving was described as driving fast around corners, skidding and drifting and not wearing seat belt.

Several hours later the owner’s son was killed driving the forklift when it tipped over.

The boys, who had been left  unsupervised, had not been provided with any safety induction or instructions at all, none of them were licensed to drive a forklift and two of them had no prior experience working on a farm.

The farming company was prosecuted for failing to ensure a safe workplace and pleaded guilty. They were fined $450,000

At this point, it is appropriate that I add a little bit of information about myself. I am a lawyer, so I have a vested interest in the prosecution process. I am a farmer’s son and have engaged in exactly the type of activity that led to the fatality – and worse. I have a son, and continually walk a fine line between introducing him to more and more responsibility and keeping him safe. I work in the safety industry and have spent the last 25 years of my working career trying to help organisations improve safety in their workplaces.

I should also say at this point that on the face of the summary of the case, there was an abject failure by a number of parties to properly consider and implement processes to manage health and safety risks in the workplace. A failure which, in my view, required a response.

My question is whether the “prosecution” response does anything for safety.

The legal profession talks about the penalties in legal proceedings in terms of general and specific deterrence. The idea that a penalty is designed to stop the individual or organisation from offending again, as well as sending a message to the broader community about refraining from unlawful conduct.

Even from a narrow, legalistic perspective, it is difficult to see how this type of prosecution is helpful.

While I am sure that a $450,000 fine had a reasonable punitive effect, I am not sure how much of a specific deterrent it was, over and above the death of a 15 year old boy. And I am certain that there are more productive ways to invest $450,000 in safety than injecting it into the Victorian Government coffers.

A $450,000 education campaign? Creating some dedicated “farm safety” inspectors?

Let’s get creative.

If all we want from safety prosecutions is to punish people and organisations who do not meet their legal obligations, then the current approach and increasing fines is probably appropriate.

But every safety conference I attend has regulators and consultants spruiking that we must learn from incidents and the only way to move safety forward is with a “no blame” culture, both of which are completely undermined by a system focused on prosecutions.

The fatality occurred in November 2014. The findings from the Court, the Wangaratta County Court did not emerge until April 2016. There is no written judgement, only press article summaries and media releases from the regulator.

the case is about proving the particulars of the charge. It is not about improving safety or making recommendations to address safety shortfalls.

And what did we learn? That teenage boys should not be left to drive forklifts unsupervised because they might do something silly? That people need to be told about hazards in the workplace? That access to equipment and machinery should be controlled?

Really?

What did we need to learn?

We need to understand why organisations like the farming company and the labour hire company had no systems in place to manage obvious risks.

How is it, that despite all of the regulators and all of the regulation, most organisations do not have anything remotely resembling a reasonable safety management process?

What if, rather than prosecutions, organisations who have had accidents could opt in to a safety learning program. In this case, for example, a detailed investigation and research project to understand all of the factors influencing the incident. Not just the role of the employers and workers, but also the regulator, the way safety information is made available and the best ways to help small and medium sized businesses implement a safety program.

  • The project would be paid for by the employer – so there is still a financial penalty.
  • Both the incident and the research could be highly publicised to add to the deterrent value.
  • Valuable lessons would be available within months, as opposed to meaningless factual statements after years.

Prosecutions can, and should still be reserved for the worst classes of offence but these would be very limited.

This is different from the current enforceable undertakings approach, because it is not designed to respond to the incident per se, but to understand the incident and create wider learnings.

And just a word on regulators – every major accident inquiry in recent times (think, Pike River, Montara, Macondo) has found serious failings in the performance of the regulator in the discharge of their duties.

What, if anything have we learned about the regulation and enforcement of safety in this case?

So, returning to my initial question: What do we it expect from health and safety prosecutions, and does the current system delivers against those expectations?

Is this really what due diligence was designed for?

On 24 February 2016 findings were handed down in the prosecution of another company officer under the due diligence provisions of the WHS legislation.

In WorkCover Authority of NSW (Inspector Moore) E&T Bricklaying Pty Ltd [2015] NSWDC 369, Mr Kose, a company officer and on site representative of E&T Bricklaying was prosecuted for failing to exercise due diligence in breach of the New South Wales WHS Act.

It is not clear in what “capacity” Mr Kose was a company officer, whether he was a director, CEO or performed some other role. It also seems implicit in the judgement that Mr Kose was involved in the day-to-day work. At paragraph 10, the judgement states:

There were five personnel involved in the laying of the blocks. They were Mr Kose, Mr Rahimi …..

There is nothing particularly instructive about the case, and it certainly does not add anything to the body of knowledge about who is or is not a “company officer”. However, the case does raise an interesting question about whether these were the sorts of cases that changes under WHS legislation to create positive obligations of due diligence on company offices were designed to address.

It appears clear that in whatever capacity Mr Kose was acting, he was a hands-on company officer involved in the day-to-day operations of the business. A typical, small business working director.

Safety and health legislation around Australia has always had provisions enabling the prosecution, and the reasonably easy prosecution, of people in that position. In his excellent paper Personal Liability of Company Offices for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), Neil Foster points out that the vast majority of prosecutions against directors and managers involved officers who were directly involved in making specific decisions that led to the injury or fatality, and that the majority of companies whose offices were prosecuted were small (page 114).

This pattern seems to be repeating itself given the short history of due diligence prosecutions to date, and that despite all of the hoopla and razzmatazz attached to WHS legislation, in practical terms absolutely nothing has changed.

To the extent that due diligence provisions make it easier to prosecute company offices and increases the penalties against them, those provisions  continue to be used against hands-on, working directors in small businesses. Senior executives and boards of large organisations who are not involved in the day-to-day operations of their businesses have nothing personal to fear from health and safety prosecutions.

I am not sure that was the point of the changes to WHS legislation, and it is certainly not what was sold – and continues to be sold – by the safety industry.