Reasonably practicable, knowledge and mental health

A common misconception in safety management is that you can somehow demonstrate that you have managed something as far as is reasonably practicable; that there is some sort of clear measure. This view of managing legal obligations is often summed up in the acronym “ALARP“.

However, “reasonably practicable” is not a clear standard, it is a value judgement as described by Justice Gaudron in Silvak v Lurgi (Australia) Pty Ltd [2001] HCA 6. You do not “demonstrate” what is reasonably practicable, you mount a “reasonably practicable” argument.

Whether measures taken by an employer to manage health and safety risks in their business are “reasonably practicable” is influenced to a significant degree by the objective state of knowledge about a hazard. For example, working at heights is a well-known hazard, there are specific regulations that govern the management of working at height risks and those regulations are in turn supported by “gazetted” Codes of Practice. It would be very hard for an employer, in light of all this “knowledge” about the hazard to argue that they had done everything “reasonably practicable” if they had not applied the controls evident in the regulations and Codes of Practice.

Being objective, the test for the relevant state of knowledge does not depend on what a particular employer knew at a particular time, but rather what they “ought to have known“. Again, looking at my working at heights example, it would not be open for an individual small-business employer to argue that they did not know about the relevant risks and controls – from the Court’s perspective all employers “ought” to know about them.

The relevant state of knowledge changes over time. A good example of this over the last 20 years is our knowledge about the impact of fatigue in the workplace and the factors that can affect a worker’s level of fatigue. Whereas 15 to 20 years ago an employer may not have appreciated the cumulative effect of their workers working consecutive 12 hour shifts and driving home, the state of knowledge about fatigue risks and the development of guidance material and Codes of Practice to manage those risks mean that employers – all employers – “ought to know” about those risks and the means to control them.

The Western Australian Legislative Assembly, Education and Health Standing Committee report on The impact of FIFO work practices on mental health published today, has moved the issue of knowledge about the hazard of mental health generally, and its impact on FIFO workforces in particular, much closer to the “ought to have known” category. To borrow the Committee’s own words:

The Committee considers that the emerging evidence that shows that mental health problems may be a concern for 30 per cent of the FIFO workforce will have an important positive impact on the state of knowledge cited in section 3 of the OSH Act, and therefore on the duty of care provisions (page 51).

The Committee goes on in Finding 15 to state that the evidence will not only increase the state of knowledge, but “create duty of care responsibilities“.

In an earlier post about zero harm I made a number of observations about how the practice of safety management may undermine safety in workplaces by contributing to harm to people’s mental health and well-being. The post received a huge number of comments which unfortunately focused on the ongoing debate about the use of the term “zero harm“.

The point of the conversation, in my view is much broader.

As evidence emerges about the changing nature of workplace hazards, in particular those that impact on people’s mental health and well-being, this in turn informs our level of “knowledge“.

As our level of knowledge changes it is incumbent on the health and safety industry to turn its mind to the extent to which historical practices may cause harm.

What is it that we “ought to know” ?

 

 

Changes to WA mining legislation: Update

Some information about possible changes to legislation regulating health and safety in Western Australia’s mining industry has emerged today from an interesting source, the Western Australian Legislative Assembly, Education and Health Standing Committee report on The impact of FIFO work practices on mental health.

According to the report (see page 40/41) , the Department of Mines and Petroleum has advised:

  1. The Minister has approved the Department to prepare a draft bill, known as the Work Health and Safety (Resources) Bill;
  2. The Bill will be consistent with the Western Australian WHS Bill currently out for public comment;
  3. A new Regulatory Impact Statement will be developed on the Resources Bill with a public consultation period from late June to mid-August 2015;
  4. It is hoped that the Resources Bill will be introduced to Parliament by 30 April 2016; and
  5. It is proposed that regulations under the Resources Bill will be gazetted by 1 December 2016.

Watch this space.

When does the language of “zero harm” become unlawful?

I am not a fan of the language of “zero“, either as an aspiration or as a stated goal. It has never sat well with me, and seems so disconnected from day to day reality in both society and a workplace that people cannot help but become disconnected from, or dismissive of, the message behind the term. My view has always been that the language of zero actually often undermines the objectives it is trying to achieve (see this case for example).

If you are interested in this topic (and if you are involved in safety you should be) there are far more passionate, learned and articulate critics of the language of zero than me – See for example, anything by Dr. Robert Long.

However, recently I have been asked to do quite a bit of work around psychological harm in the context of occupational safety and health. In particular, how the legal risk management of psychological harm in the context of safety and health might differ from the Human Resources (HR)/employee relations context.

WHS legislation around Australia expressly includes “psychological” health within its remit and the Western Australian Department of Mines and Petroleum has acknowledged that they regard “health” as including “psychological” health, even though it is not expressly described in the State’s mining legislation.

What has emerged, at least to my mind, is the extent to which our policy, procedure and policing approach to safety and health, far from alleviating psychological harm in the workplace, might be contributing to it.

Safety management might be part of the problem.

In an ongoing Western Australian inquiry into the possible impact of fly in/fly out work on “mental health” the Australian Medical Association identified that the way health and safety is managed can contribute to a “distinct sense of entrapment” (page 43):

The AMA also expressed its concerns about this issue, noting that “[o]nerous rules, safety procedures and focus on achievement of production levels have been shown to create a distinct sense of entrapment in FIFO workers.”

The inquiry drew, in some measure, on an earlier report, the Lifeline WA FIFO/DIDO Mental Health Research Report 2013 which also appeared to note the adverse impact of safety and health management on psychological well-being. For example “[a]dhering to on-site safety rules” was identified as a workplace stress (page 77). Interestingly, the Lifeline report noted a sense of “intimidation” brought on by the number of rules and regulations associated with work on a mine, and :

This sense of intimidation was further mirrored in the outcomes of mining safety regulations which in theory were designed to care for workers but in practice led to inflexible regulation over genuine safety concerns (page 81).

Examples from the Lifeline report include:

… a participant recalled a situation in which a worker handling heavy loads required an adhesive bandage but was unable to ask someone to get them for him because he had to fill out an accident report first (which he was unable to do mid-job); hence he had to carry on working without attending to his cuts. Alternatively, another example of the application of safety rules in an inflexible manner was illustrated when a group of workers were reprimanded for not wearing safety glasses on a 40 degree day even though they could not see from them due to excessive sweating. Hence, safety rules themselves were accepted as a necessary part of work but their implementation in an inflexible uniform manner created stress as workers felt their impact hindered their ability to conduct basic work tasks safely and/or without attracting rebuke. Hence, site rules and regulations could translate into arbitrary and punitive forms of punishment, which undermined participants’ ability to fulfil jobs to their satisfaction and left them feeling insecure with their positions (page 81).

It seems, then, that we need to think beyond our own perceptions of what might contribute to workplace stress and understand the impact that our efforts to manage health and safety might actually be having. Again, as the Lifeline research noted:

… although past research has shown that site conditions and cultures, such as isolation and excessive drinking are problematic, this research shows that the regimented nature of working and living on-site also takes a toll on mental health and wellbeing. From the responses of many participants, it was apparent that following site safety rules (either under pressure of internal monitoring or in the perceived absence of adequate safety precautions by co-workers and supervisors) was a significant stressor. Participants felt unable to apply self-perceived common-sense judgments and also reported feeling vulnerable to intensive scrutinising, intimidation and threats of job loss (page 82) [my emphasis added].

The common criticisms of the language of “zero” seem to me to go directly to the factors that have been identified in this research as contributing to psychological harm in the workplace. The pressure to comply with rules, fear about reporting incidents, the inability to exercise individual judgement on how to manage risk and the inflexible application of process are all side-effects of the language of “zero“.

Up until this point the debate around “zero harm” and its utility (or otherwise) as the headline for safety management has been relatively benign. Apart from the advocacy of people like Dr Robert Long “zero harm” seems to have been perceived as a relatively neutral strategy, insofar as people believe that it “does no harm“, and “what’s the alternative?”.

It seems, in fact, that much harm may be perpetuated in the name of “zero“, and at some point the behaviours that it drives will be found to be unlawful.

It is also going to be interesting to see how health and safety regulators, often the champions of “zero harm” oversee its potential impacts on psychological harm in the workplace. Indeed, it would be very useful to see what risk assessments, research or other measures were taken by regulators prior to introducing “zero harm” style campaigns or messages to understand the potential effects of their interventions, or any subsequent research to understand the potential harm they may have done.

Gallifreyan_20150512223239

Updated access to old video presentations

There are currently 17 online video presentations looking at various health and safety cases and topics available through this blog. To make it easier to access old presentations I have added a new “video presentations folder” page.

Through the page you can access a link to a folder which contains all of the video presentations, and the folder will be updated as new presentations are added.

I hope that you continue to enjoy the presentations, and I look forward to any feedback.

Best regards.

Comcare v Transpacific Industries

Comcare v Transpacific Industries [2015] FCA 500 is an interesting case that looks at the liability of an employer for the death of a non-employee in a motor vehicle accident. In February 2011 a Transpacific employee driving a garbage collection truck ran into a vehicle killing the driver. Subsequent investigations revealed that the truck had faulty brakes.

The case provides some very interesting insights into the “illusion of safety” where it appears that, notwithstanding regulator approval and a routine maintenance regime, the high risk of poorly maintained brakes on a garbage truck was not identified.

There is also an interesting point raised in the case about the extent to which an employer should monitor the work of an employee who has been issued a warning for safety related breaches. Should an employer monitor the employee until they are satisfied that they are working in accordance with the safety requirements?

A short video presentation about the case is available here.

You can access a copy of the case here.

World Safety Organisation Educational Award

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

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

The nomination criteria for the Award is:

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

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

Contractor safety management book

How safety regulation undermines safety

There is an interesting paradox in safety management, in so much as a lot of what we do in the name of safety and health actively undermines our safety efforts.

This week I was confronted with another, recurring example.

I was speaking at a conference and talking, in part, about the relationship between “safety” risk management and “legal” risk management, and the relationship between them.

After the presentation a manager that I know well and have worked with in the past spoke to me about a a significant problem that he was grappling with. They had recently been prosecuted in relation to a workplace injury. He was not complaining about the prosecution, in so far as the nature of the incident most likely warranted some form of sanction.

What irritated him was that they were prosecuted, essentially, based on evidence drawn from their own, internal, incident investigation.

To make matters worse, some of the charges did not relate to the incident. They did not allege that the safety failures “caused” the incident – they were simple “breaches” of their safety obligations in the broader sense.

As this manager described it, they did not need to identify these “non-causal factors” in the incident investigation. They did it in the spirit of trying to learn and improve, yet to his mind they had been punished for trying to do the right thing.

What this meant, somewhat understandably, was that the approach to incident investigations had changed: Narrowly focussed, only considering objective, immediate causes and not examining safety management more broadly and all investigations are sanitised by lawyers.

A good outcome for safety?

I recall a number of years ago working with an industry group that used to regularly share members’ incident investigations on their web site and at regular forums – again, in the spirit of learning and improving.

Unfortunately, the practice has all but ceased as companies refused to have potentially “harmful” information made public. Those that did make information available had sanitised it to the extent that it was effectively meaningless.

There is also a seemingly common practice among safety regulators, whereby rather than do their job and investigate incidents, they simply require a company to provide them with a copy of their internal investigation. Again, hardly an incentive for an organisation to undertake any meaningful interrogation of their safety management.

When we look back at the harmonisation process in Australia it is clear that it was a terrible opportunity lost to address how we legislate to provide better safety outcomes. Unfortunately, it was only ever intended to provide a better “administrative” outcome.

As Western Australia embarks on a process of “modernising” its safety legislation, perhaps there is an opportunity to genuinely think differently.

For example, as an individual I have a right to protection against self incrimination, so that if an Inspector compels me to give a statement, that statement cannot be used against me in a subsequent prosecution. Why couldn’t that same right be extended to a company’s incident investigation?

Surely, the interests of improving workplace safety and health through a fearless examination of safety management following an incident should take priority over arming regulators with the information that they need to mount a prosecution?

Don’t mention the “H” word: We are “modern” now

There have been some interesting mutterings coming from safety regulators and their political masters during the long funeral march of harmonisation in Western Australia over the past few years. However, it seems now that the “H” word is out, and “modernisation” is in.

At least that was the language being used recently at the SIA Safety in Action conference in Perth.

I for one will be glad when the corpse of harmonisation is finally laid to rest. Perhaps then we can focus on legislative changes that will actually drive good safety initiatives, rather than continue to tinker at the edges of administrative efficiency.

Whether “modernisation” in Western Australia means anything more than doing exactly what we have done for the last 20 years, but using different words to describe it, only time will tell.  And if the history of legislative change around safety and health in WA is any guide, I would not be holding my breath waiting for meaningful change.

Legislation changes in Queensland

A number of changes to Queensland Work Health and Safety laws (WHS) took effect from 16 May 2014.

The changes impact health and safety representatives, right of entry permits, electrical safety and a range of other health and safety obligation.

Information about the changes are described on Queensland’s Workplace health and safety website, which you can access here.

If you want to look at the specific changes in the context of the legislation, we have set up a Lawstream database that will show the affected legislation.

You can access the database at:

www.lawstream.com.au (click on “client” under the login tab to access)

Username:          Qld WHS

Password:           password

Changes to the Work Health and Safety Act 2011 are available now, and further, amended legislation will be uploaded soon.

To review the changes, navigate to the relevant section and click on the “updates” tab.

The sections of the Work Health and Safety Act 2011that have been affected are:

Section 68;

Section 71;

Section 74;

Section 82;

Section 83;

Section 85;

Section 86;

Section 119;

Section 122;

Section 123;

Section 143A;

Section 274;

Part 16, Division 3, sections 307 – 309;

Schedule 2A items 9 and 112.

Call for contributors: Management experiences of safety failure

Hello everyone.

First, apologies for a long absence from the “blogosphere“. Business and life have been particularly hectic, but I hope to get back to something vaguely representing a “sane” routine.

I am planning to post four more videos to round out my video series on contractor safety management, and then will start a new series looking at cases dealing with the somewhat vexed issue of “Reasonably Practicable“, so please keep an eye out for that.

However, this post is a call for people to contribute to a new project/book looking at the experiences of managers following a catastrophic workplace event – most typically a fatality or multiple fatality event.

If you want to understand more about the rationale behind this project, please read the rest of the blog, but in short, I want to collect and share the experiences of managers when they get that dreaded call that someone has died at work. What did it mean for you personally? What was your experience?

I would like to explore the whole range of impacts; emotional, financial, the impact on your career, lour experience of the legal process and anything else that people are willing to share.

There are any number of excellent, tragic but excellent, stories from wives, husbands, parents, workmates, friends and others who tell of the devastation caused by workplace fatalities. But there is another story – the story of the managers who have to respond to the devistation. They are often the ones blamed by the families and  accused by the media. At the same time they have to deal with the regulators, lawyers and the glacial journey through the bureaucracy of health and safety enforcement and the legal process.

This is not to suggest that the impact on “mangers” is greater or lesser than the impact on others caught in the tragedy of workplace death, but it is real.

As importantly, understanding the impact of workplace tragedies on managers may drive us to question what we do to manage health and safety risks; a small change that could make an immeasurable difference.

If you have a story to tell that might help others avoid the experience that you have had to endure  and would be willing to share it, please let me know (gsmith@stegroup.com.au). I am happy to to tell your story in a way that will protect you anonymity, but the lessons of your journey will be invaluable.