In response to a number of requests following my recent updates on health and safety assurance (Rules will not be followed – and you are expected to deal with that, Health and safety assurance, The Safety Paradox and the challenge of health and safety assurance and One-off departure or systemic failure) I have been asked if I can run a workshop on the topic.

Thank you for your interest, and on Tuesday 6 September 2016 I will run a Practical Health and Safety Assurance workshop. Click on the link for more details.

Places will be strictly limited to 15.

If you are outside of western Australia, but would like to run a course, let me know and I will see what I can organise.

Thanks again to everyone for your interest.

 

On 11 August Dr Rob long, myself and Craig Ashurst will be launching our new book, Risk Conversations: The Law, Social Psychology and Risk.

The book launch will be at the Tradewinds Hotel in Fremantle, and you can find out more HERE.

Places are strictly limited, and I look forward to catching up with anyone who can make it.

 

I recently posted an article entitled The Safety Paradox and the challenge of health and safety assurance which generated quite a lot of discussion on LinkedIn and elsewhere.

One discussion went as follows:

Comment:

How do we know or can we know “that not all safety initiatives are always good, and that safety initiatives can undermine safety”? And Could this; “Research into JHAs and other frontline risk assessment tools shows how they can disengage the workforce from the organisation’s health and safety message” be used to avoid personal accountability? Do not agree at all to this comment “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” Greg, can you tell me one Safety law made that was not created for health and welling? Are you ignoring the fact the system does not allow for us to follow the safe ways? and that even if it does people just violate rules anyway for self-gain! I see a lot of hindsight Bias here!

Response:

 … all safety laws and safety initiatives are created with a positive outcome in mind. I accept that. However, I do not accept that just because we have a positive intention, this will result in a positive outcome. We have an obligation to know if our initiatives are achieving the positive outcome or not. I also accept that people will violate rules – indeed the law recognises that and says to businesses, in developing your rules you must be aware that people will violate them – therefore you have a positive obligation to supervise your systems to understand/minimise the violations

I felt that the comment warranted a deeper response, especially in relation to the idea that the law recognises that people will violate safety rules, and that our safety management systems have to take account of this likelihood.

At its simplest, safety management requires us to develop “proper system” to manage the health and safety risks in our business, and ensure “adequate supervision” to understand if those systems have been implemented and are operating effectively. The Royal Commission into the 1998 Esso Longford Gas Plant Explosion, in its observations of the level of non-compliance with operating procedures noted:

… the evidence suggests that some of the failings were so prevalent as to have become almost standard operating practice. These practices could not have developed or survived had there been adequate supervision of day to day operations by Esso management. [paragraph 13.33] (my emphasis added)

This idea of “systemic failure” as opposed of a “one-off departure” from an otherwise effective system was a topic I looked at in a short, 4-and-a-half-minute video, One-off departure or systemic failure if you want to explore that notion further.

What the Longford Royal Commission confirms is that understanding worker non-compliance with safety procedures is a known phenomenon, and it impacts both parts of the safety equation:

Proper Systems – our systems must take account of the fact that workers will not comply with the systems; and

Adequate supervision – we must continually monitor our safety management systems to identify and address non-compliance.

This was recently articulated in Comcare v Transpacific Industries Pty Ltd [2012] FCA 90:

I accept the submission made on behalf of Comcare that one of the significant reasons for legislation such as the OHS Act is that, on many occasions, industrial health and safety mechanisms need to be put in place by an employer to guard against the possibility that employees generally or particular employees might ignore what would seem to be imprudent behaviour, not just because they are fooling around, skylarking or acting up, but because they have a genuine desire to get about their employer’s work and might have a tendency, on occasion, to disregard procedures that are designed to protect them from injury or indeed loss of life. In short, occupational health and safety standards are put in place, apart from any other reason, sometimes to protect employees against themselves. [51]

This was also a concept expressed in the Montara Commission of Inquiry during cross examination

[Mr Howe QC]:     No, I mean would he also have taken the position that he couldn’t, as it were, credit that corners might be cut or people might lose sight of proper procedures because they were diverted to endeavours to save time and money, and the like?

[Mr Jacob]             I would think so, but obviously I can’t talk for him.

[Mr Howe QC]:     What about your CEO – do you think the CEO shared that same approach?

[Mr Jacob]             Again, I don’t think anybody in the organisation would credit that things would be done to the detriment of safety for the benefit of cost.

[Mr Howe QC]:     I want to suggest to you, sir, that that very evidence reveals a problem, namely, that no-one in the organisation seems to have properly credited the known phenomenon that when people are pursuing efficiencies and time savings and cost savings, they can lose sight of the need to observe proper procedures.

[Mr Jacob]             Sorry, could you repeat the first part of that?

[Mr Howe QC]:     Yes.  You seem to be saying that, to your knowledge or understanding, no-one in PTT would have credited at the time that people involved in well management and well control might have succumbed to any sort of corner-cutting or inattention to proper procedures by virtue of the desire to achieve time and cost savings.

[Mr Jacob]             Mmm-hmm, yes.

[Mr Howe QC]:     I’m suggesting to you that the very fact that you are giving that evidence identifies a problem, namely, senior management did not properly recognise the plain fact of ordinary human nature and a known phenomenon, namely, when you have lots of people applying themselves to achieving time and financial efficiencies, they can lose sight of the need to properly attend to processes.

[Mr Jacob]             On the basis that there weren’t systems in place to ensure that the barriers, et cetera, were identified as being in place and verified and that, yes, I can accept that.

(my emphasis added)

 (Jacob, A. 2010. Transcript: Montara Commission of Inquiry transcript.  http://www.montarainquiry.gov.au/transcripts.html (accessed 29 September 2010), 1784).

Finding 42 (page 141) from the Inquiry reflected this examination:

PTTEPAA did not have effective internal systems in place to achieve a high level of quality assurance with respect to well control operations. In particular, systems were not in place to ensure (i) vigilant day‐to‐day supervision of subordinate personnel; (ii) monitoring of well operations through internal audits.

The history of fatalities and major accident inquiries paint a consistent picture for businesses. You are expected to be able to demonstrate that you have proper systems to manage the health and safety risks in your business, and you are expected to be able to demonstrate that those systems were adequately supervised. An outcome of adequate supervision is that organisations should be able to show, at any point in time that they understand how well these systems are implemented, and whether they are working – whether they are managing the risks as intended.

To borrow from the language of the Pike River Royal Commission, organisations should be able to prove the effectiveness of their crucial systems.

What is also consistent, is the recognition that workers, for a range of reason, including the genuine desire to get about their employer’s work, will not always comply with the rules, processes and procedures designed to protect them. An essential element of proper systems and adequate supervision is to recognise the capacity for non-compliance and take account of it.

 

A key, although not well articulated, theme that underpins the prosecution of a workplace accident is the extent to which the relevant “failures” were “one-off departures” from an otherwise effective, well implemented and understood system, as opposed to evidence of “systemic failure“.

To try and explain the difference, I have produced a short, 4 and a half minute video.

I hope you find it useful.

This is just a quick note to my Perth contacts who might be interested in attending a Social Psychology of Risk Workshop run by Dr Rob Long, Craig Ashhurst and Roy Fitzgerald.

The workshop comes highly recommended from former participants, and offers an engaging, interactive hands-on experience with challenging new ideas about the psychology of culture and risk.

When

9, 10, 11 August 2016
8am to 4pm each day

Where

The Tradewinds Hotel, 59 Canning Highway, East Fremantle, WA 6158

You can access more information about the workshop at the links below:

Course details and registration

PDF Flyer and course information

Anyone who has been following my thoughts and comments through this blog will understand that I have concerns about the prosecution process, and the role that it plays in improving (or otherwise) safety management.

You can see some examples of my commentary here:

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

Do we need to rethink safety prosecutions?

Rethinking safety prosecutions part 2

is this really what due diligence was designed for?

On 19 June 2016 I posted a report about an abandoned health and safety prosecution in the ACT. You can read the article at this link:

Calls for charge after stalled prosecution over Ben Catanzariti’s death at work

The article also referenced an earlier prosecution in the ACT, Kenoss Contractors, saying:

“There was a sense of deja vu about the Catanzeriti case.

Last year, Kenoss Contractors were fined more than a million dollars after being found guilty of significant safety breaches after truck driver Michael Booth was electrocuted by low slung electricity wires.

There were no warning signs and the wires were not marked out with safety flags.

But Kenoss had already gone into liquidation, and it is unknown if the fine will ever be paid.

Charges against engineer Munir Al Hasani, who was charged as an officer of the company, were set aside by the Magistrate on a technicality.” [My emphasis]

I do not want to explore the Kenoss case in this article, except to say that the charges against Mr Al Hasani did not fail on a “technicality”. To suggest they did, implies that there was some minor all the relevant error – there was not.

Mr Al Hasani was charged as a company officer when he wasn’t. This is not a technicality. The prosecution could not prove a critical element of the case.

Turning to the Catanzeriti case.

Mr Catanzeriti died on a construction site in 2012 when a concrete pump boom fell on him. The evidence strongly suggests that the accident occurred because bolts in the boom failed causing it to fall. What was not so clear, however, was why the bolts failed.

There were at least three plausible explanations for the failure, one being that the bolts had not been done up properly while there were two other explanations that suggested a failure due to metallurgical conditions.

One of the characteristics of criminal prosecutions, which occupational safety and health breaches are, is that the prosecution is bound by the “particulars” of the charges that it brings. It is not an opportunity for a general discussion about whether a workplace was “safe”.

Therefore, if the prosecution alleges that some failure on the part of an employer “caused” an accident, it must be able to prove the cause of the accident.

Because the prosecution in this case felt that they could not prove why the bolts “failed”, they withdrew the charges.

As distressing as this no doubt was for the people involved, it was probably the right decision. This precise requirement was demonstrated as recently as 27 May 2016 in the South Australian decision, Symons v Karl Chehade Dry Cleaning Pty Ltd [ 2016] SAIRC 15.

In that case a worker at a dry cleaning business was badly injured when a piece of machinery designed to iron curtains closed on her hand.

The substance of the allegations was described in opening arguments:

“It’s alleged by the prosecution that the manner in which this PLC had been programmed to control the operation of the plant meant that it was unsafe, and that there were alternative ways of programming that PLC to eliminate or substantially reduce and minimise the risks posed by that curtain press. Indeed, it will be submitted by the prosecution that had the PLC been programmed such as has been set out in particular 1.4, the risk of this incident occurring would be limited or substantially reduced. And, your Honour, that is the crux of the prosecution case.” [31]

Ultimately, the prosecution was unsuccessful, in large part because the prosecution could not demonstrate to the Court what “caused” the incident.

“The difficulty that I have with the complainant’s case is the fact that the evidence did not establish to the requisite degree, what was wrong with the press … or what caused the head to come down [74]

The complainant’s case assumes that the head failed to descend because of a lack of air pressure. It assumes that whatever Mr Johnson did, somehow sufficient air pressure was generated so as to drive the head down against the force of the tension springs that were holding it up. Whilst the evidence establishes these as reasonable hypotheses, it does not establish either beyond a reasonable doubt [78].

Although one can speculate that if those assumptions are correct a change to the PLC such that the head would automatically rise ten seconds after it had descended or a change to the configuration of the press so that the head could only remain in a descended position whilst all buttons were being pressed, might have avoided the unexpected downward movement of the head, without knowing exactly what was wrong with the press, what Mr Johnson did to it, or what exactly caused the downward movement, I cannot be sure.” [79]

The logic flow in these types of prosecutions is reasonably straightforward. If the prosecution alleges that A caused B, and that C would have prevented A from causing B, they must prove beyond a reasonable doubt that A caused B.

In neither the Catanzeriti or the Symons cases does the withdrawal/failure of the prosecution mean that the workplace was “safe”. In the Catanzeriti article, a union representative was reported as saying that other safety issues could have formed the basis of the prosecution, including the lack of exclusion zones and other safety measures such as training.

In all likelihood this is correct. Indeed, the courts from time to time have identified that failed prosecutions did not properly identify matters that should have been the subject of proceedings. For example, in Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 the New South Wales Industrial Relations Commission noted:

“As a result of the foregoing discussion, having regard to the way in which the offence was particularised and the manner in which the case was brought, I do not consider that it was reasonably practicable for the defendant to address the failings identified in the prosecutor’s case. The prosecutor’s case was limited to allegations that the defendant failed to provide an effective barrier and failed to ensure that the area was clean and free of debris. On the evidence before the Court, I am satisfied that the defendant has discharged its onus of proving that it was not reasonably practicable either to erect an effective barrier on the side of the pit catering for mechanically unloading vehicles or to ensure that the area beside the pit was always clean and free of debris so as to ensure that a person could not slip and fall. As a result, the defendant has established a defence under s53 of the Act and the summons must be dismissed [99].

I would observe that there was undoubtedly a serious risk to safety occasioned by the unguarded pit when combined with the presence of substances or fluids on the ground. Mr Buchanan properly conceded that such a risk existed. The gravity of the risk was demonstrated in this case by the injuries sustained by Mr Holloway. However, it was necessary that this risk be addressed by eliminating failings other than those specified in the prosecutor’s case. It was necessary that the risks be addressed by some other means. Whilst it is not the position of the Court to specify what measures were required, it is possible that there were failings in effective supervision, adequate warnings or in the condition of the ground (even aside from the metal plates) that gave rise to the risk. These were not matters that were alleged as part of the prosecution.” [100] [my emphasis]

While I believe that a criminal prosecution regime does have a place in the overall framework of health and safety regulation, I am not convinced that its limitations are properly understood.

Health and safety prosecutions are not an effective framework for understanding and improving workplace health and safety.

History would also suggest they are not a particularly effective framework for punishing health and safety transgressions.

I have suggested an alternative to safety prosecutions in my article, $450,000: is this what we want from prosecutions?, But for the purposes of this article I would just like to leave a thought for the advocates of increased, and more severe occupational safety and health prosecutions, and that is; the more of an adversarial approach we take to dealing with workplace accidents, the more adversarial response you can expect. And one of the consequences of an adversarial process is that you are likely to lose as often as you win.

A win/loss record in occupational safety and health prosecutions adds as much value to our understanding of health and safety management as lost time injury rates.

What do we expect from health and safety prosecutions, and does the current system delivers against those expectations?

On Wednesday 15 June 6 April 2016 I will be facilitating a second due diligence masterclass in conjunction with IFAP from 8.00am until 3.00pm at the Esplanade Hotel in Fremantle, Western Australia.

The program is suitable for all industries and size of business.

Drawing on legal precedents and major accident investigations from all around the world, I will consider due diligence in the context of health and safety legislation including harmonised, WHS legislation and “accessorial liability” provisions  in Western Australia, Victoria and the offshore oil and gas industry.

The program will focus on the practical and legal expectations on mangers to control health and safety risks in their business, and what day-to-day application of those principles might look like.

The first program in April sold out, and places are limited. The program is already 75% subscribed.

You can access information about the program here, book here, or contact me – gws@nexuslawyers.com.au if you would like to know more.