What we say matters: Zero and other Aspirations

April 6, 2017 ~ My safety thoughts ~ 1 Comment

It seems hardly a day goes by without social media raising a new discussion about the merits or otherwise of “Zero Harm”.

As I understand the various arguments “for” and “against”, there seemed to be three broad categories of argument (although I do not discount further or additional arguments).

One argument says that Zero Harm is not a target, or a goal, rather it is an aspiration – something to pursue. If I may be so bold as to paraphrase Prof Andrew Hopkins, it is like a state of grace – something to be striven for, but never truly achieved.

Another argument, more of a middle ground, articulates that Zero Harm is “okay”, but may have an unintended consequence of driving adverse behaviour. In particular, it is argued that Zero Harm causes individuals and organisations to hide incidents or manipulate injury data in support of an organisation’s “zero” targets.

Yet another argument says that the language of zero is totally corrosive and destructive. It argues the language of zero – amongst other things – primes a discourse that is anti-learning and anti-community (See, For the Love of Zero by Dr Robert Long).

I would like to use this article to discuss two matters. First, the Safety Paradox in the context of aspirational statements, only using “zero” as a starting example. Second, to demonstrate how aspirational statements can be used against organisations. Both these points are closely related but ultimately, I want to argue whatever your “aspirations” you need to have “assurance” about the effect they have on your business.

The Safety Paradox is a concept I have been exploring for some time now. The Safety Paradox supposes that our safety initiatives have within them the potential to improve safety and cause harm.

In my view, the single biggest weakness in modern safety management is the assumption that safety management initiatives are “good“. I have no doubt that the proponents of Zero Harm suffer from this assumption.

The question of whether Zero Harm is good or bad is, on one view, totally irrelevant. If you are a Zero Harm organisation the only thing that really matters is the impact Zero Harm has in your workplace.

What is the purpose of Zero Harm in your organisation?
How do you demonstrate that Zero Harm achieves this purpose?
How do you evidence that Zero Harm does not undermine safety in the way that many commentators suggest?

My personal experience with Zero Harm means that I remain unconvinced of its benefits, but I do not feel I am closed to being persuaded otherwise, it is just that I have never worked with an organisation that has been able to address the three questions proposed above. Moreover, in my experience, there is usually a significant disconnect between corporate intentions and operational reality: What management think is going on is often very different from what the workforce believes.

Considering all the published criticism of Zero Harm as a concept, I do not think it is unfair that the onus should be on Zero Harm organisations – including government regulators – to demonstrate that Zero Harm achieves its intended purpose and does not have a negative impact on safety.

Now, this is more than a matter of semantics. Aspirational statements can, and are used against individuals and organisations.

On 21 August 2009 and uncontrolled release of hydrocarbons occurred on the West Atlas drilling rig operating off the North-West coast of Australia. The incident reawakened the Australian Public to the dangers of offshore oil and gas production, leading to a Commission of Inquiry into the event.

During the Commission the aspirational statements of one organisation was used against an individual. The criticism was that a contractor had removed a piece of safety critical hardware, but not replaced it, and had not been directed by the relevant individual to replace it.

There was some discussion about a presentation provided by the organisation, and that resulted in the following exchange.

Montara slide

Q: All right. If the operator could go to page 0004 of this document, that overhead, which is part of the induction training of drilling supervisors, is entitled “Standards”. Do you see that?

A: Yes.

Q: If you could read what is said there, you would agree it captures, if you like, a profound truth?

A: Yes.

Q: Do you agree that that is a truth not simply applicable to drilling supervisors but also applicable to PTT management onshore?

A: Yes.

Q: I want to suggest to you, sir, that your decision not to instruct Mr O’Shea or Mr Wishart to reinstall the 9-5/8″ PCC represents a very significant departure from what is described on that screen.

A: Yes, I can concede that.

Q: Without wishing to labour the point, your decision not to insist upon the reinstallation of the 9-5/8″ PCC was a failure in both leadership and management on your part?

A: Yes, that’s what it seems now.

Q: With respect, sir, I’m suggesting to you that, faced with the circumstances you were, your deference, as it were, to not treading on the toes of the rig personnel and insisting on the reinstallation was, at that point in time, a failure in leadership and management on your part.

A: I will accept that.

How many of these untested platitudes infect organisations, waiting for the opportunity to expose the business to ridicule and criticism?

Or consider if you will, the following scenario. An employee is dismissed for breaching mobile phone requirements when his mobile phone was found in the cabin of the truck he had been operating.

The employee bought an unfair dismissal claim and the presiding tribunal found that there was a valid reason to terminate his employment. However, the tribunal also found that the termination was unfair for several procedural reasons. In part, the tribunal relied on the level of training and information that the employee had been provided about the relevant procedure.

The training documentation provided did not clearly demonstrate that employees were trained in this new procedure and signed accordingly, or that it was given a significant roll-out to employees commensurate with their ‘zero tolerance’ attitude to incidents of breaches, given how this case has been pursued (my emphasis added).

If you are going to have a “Zero” aspiration, that has to be reflected in your business practices. It seldom is.

What I think these examples illustrate is an inherent weakness in the way health and safety is managed. We, as an industry, are overwhelmingly concerned with “how” we manage health and safety risks without paying anything like enough attention to whether the “how” works.

Do all of our aspirations and activities actually manage health and safety risks, or are we just keep keeping people busy or worse, wasting their time? As importantly, how do we know our initiatives are not part of the problem?

BP’s corporate management mandated numerous initiatives that applied to the U.S. refineries and that, while well-intentioned, have overloaded personnel at BP’s U.S. refineries. This “initiative overload” may have undermined process safety performance at the U.S. refineries. (The Report of the BP US Refineries Independent Safety Review Panel (Baker Panel Review), page xii).

There is no doubt that safety is not the only management discipline that suffers from these deficiencies: “style over substance” and “window dressing”. But if we claim the high moral ground of protecting human health and life, then perhaps the onus on us to show what we do works, is also higher.

Self incrimination in internal investigations: Is this really a thing?

March 15, 2017 ~ My safety thoughts ~ 2 Comments

If you have followed my thoughts over the past few years, you will know that one of my concerns about the increasing emphasis on legal sanctions and penalties for health and safety breaches is the likely increase in legal risk management strategies at the expense of health and safety management. (See for example: $450,000: Is this what we want from prosecutions?; Is this really what due diligence was designed for?; Rethinking safety prosecutions part 2)

This concern has poked its head up again in the recent Federal Court decision, Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. The case dealt with important issues about the rights of an employer to insist employees undertake a medical assessment with a doctor of the employer’s choice, a topic that has pervaded the management of injured workers for many years.

This topic is important and serious, and it has implications for both employees and employers. But the case also touched on another, far less well understood issue – the rights of employees to claim to self incrimination and refuse to answer questions in a company’s internal safety investigation.

Does an employee have a legal right refuse to participate in your internal incident investigations on the basis that in doing so, they may expose themselves to the threat of prosecution?

The protection against self incrimination has long been recognised in health and safety legislation. Legislation recognises the difference between “voluntary” interviews and “compelled” interviews. In the latter case, information provided to a regulator during a compelled interview cannot be used against the person providing the information, except in very limited circumstances, such as perjury.

In the Grant case, the employee had been terminated following a long running dispute over his capacity to return to work. As part of that process, Mr Grant attended an interview about his refusal to attend a medical appointment with a company nominated doctor. During that interview, Mr Grant refused to answer questions unless they were put to him in writing.

During the various appeal stages of his case, Mr Grant asserted that he has refused to cooperate in the investigation on the basis of his privilege against self incrimination.

The Federal Court noted at [106]:

Privilege against self-incrimination means that a witness cannot be compelled to answer questions that may show the witness has committed a crime with which the witness may be charged if the answers may place the witness in real and appreciable danger of conviction: Sorby v The Commonwealth (1983) 152 CLR 281 at 294.

The Federal Court went on to confirm the privilege against self incrimination :

Can apply to questions asked by an employer [108]; and
Can apply to questions asked during a workplace interview that have implications for a persons liability under health and safety legislation [108].

Unfortunately the Federal Court said that they could not decide the issue on the facts of the case. Or more eloquently, they said they could not decide it in “such a vacuum of facts” [110].

The Court did not need to decide the question of self incrimination to decide the case, but clearly reinforced its relevance in workplaces.

Of course, the next question that follows, is what is an employers rights in relation to an employee who refuses to participate in an investigation on the basis of self incrimination? Can they discipline them? Can they terminate their employment?

I do not want to try and give a definitive answer here, but it is at least arguable that any “adverse action” taken against an employee because they were exercising a legal right could amount to a breach of the General Protection provisions of the Fair Work Act, and leave the employer liable to penalties.

If the purpose of health and safety legislation is to help ensure safer workplaces, in my view, there is a need for constant vigilance to understand when the legislation undermines, as opposed to promotes, better safety management. If the legal risks have become so acute that employees no longer need to cooperate with safety investigations, it may at least be time for a discussion on the merits of penalties and prosecutions.

Systems as Imagined v Systems in Practice

October 20, 2016 ~ My safety thoughts ~ 1 Comment

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;

Be completed correctly; and
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.

Post incident conduct: Is it relevant?

July 29, 2016July 29, 2016 ~ My safety thoughts ~ Leave a comment

You can download a PDF version of this update HERE

A recent Victorian decision, Australian Box Recycling , received some attention on health and safety social media sites because of comments about the lack of remorse by the company.

The case involved a workplace fatality, but prior to the prosecution, the company applied to deregister and did not take part in the proceedings. Deregistration was unsuccessful, although the owners of Australian Box Recycling had started a new company doing similar things, and the case against the company proceeded.

The prosecution argued that the actions by Australian Box Recycling showed a lack of remorse for the incident, and the court agreed describing their conduct as “contemptible“, imposing an $800,000 fine:

“Their attempt to wash their hands of their responsibilities by shutting down the company once charges were laid, refusing to take part in court proceedings, and starting up a similar company just nine months after their employee died is utterly contemptible and should be condemned”

The conduct of a company after a workplace accident can have a significant bearing on the outcome of legal proceedings. Very often, the actions taken by a company can be used to argue mitigation and reduce any penalty the Court might otherwise impose.

A notable example is when a company pleads guilty at the earliest opportunity. Although there are no hard and fast rules about the value of an early guilty plea, it is often associated with discounts on penalties of up to 25%.

Other “post-accident” factors include:

The steps taken by the company to improve health and safety;
The level of support shown for any injured personnel and their families; and
The level of remorse shown by an organisation – often evidence by the factors above.

Conduct that evidences a lack of remorse or a lack of cooperation can have significant, adverse consequences for a company.

One case where this played out was the prosecution of Esso Australia Pty Ltd
following the Longford Gas Plant Explosion in 1998.

In the sentencing hearing following prosecution, the Court was very critical of Esso’s ongoing failure to accept responsibility for the accident:

“However, before imposing sentence on Esso it is unfortunately necessary to examine the litigious conduct of Esso in these proceedings. It is necessary both of itself and as an incident of sentencing – remorse and rehabilitation being relevant to that end.

…

Esso and its senior officers have expressed remorse for the tragic loss of life and injury … I have no doubt that that personal remorse is genuine … I acknowledge that genuine remorse. However, personal expressions of remorse need to be translated into reality. In the present case, they have not been. here are three matters which militate against corporate remorse.” [40 – 43]

The factors that mitigated against that remorse were:

The litigious treatment of the employees;
The conduct of the defence in the trial, which was described as “one of obfuscation – designed not to clarify, but to obscure” [45]; and
The “lamentable failure of Esso to accept its responsibility for these tragic events“. [46]

In another example, a company, Ferro Con (SA) Pty Ltd was heavily criticised following a workplace fatality when it relied on an insurance policy:

“In my opinion Mr Maione and Ferro Con have taken positive steps to avoid having to accept most of the legal consequences of their criminal conduct as determined by the course of justice. This has occurred through Mr Maione successfully calling on an insurer to pay his fine .” [78]

“In my opinion Mr Maione’s actions are so contrary to a genuine acceptance of the legal consequences of his criminal offending that they dramatically outweigh the benefits to the justice system of the early guilty plea and statement of remorse. Accordingly it would be entirely inappropriate to grant any reduction of penalty to Mr Maione or Ferro Con in these circumstances .” [81]

But it is not just prosecutions where post incident behaviour by a company and its officer can influence the outcome of a legal process, or lead to criticism.

A striking example comes from the Montara Commission of Inquiry.

The Inquiry was established following the uncontrolled release of hydrocarbons from an offshore drilling platform off the coast of North West Australia in August 2009.

During the Inquiry, one of the key participants. PTTEPAA was heavily criticised for its conduct, to the point that the Inquiry recommended that the Australian Government review PTTEPAA’s licence to operate in Australia:

“The Inquiry considers that the manner in which PTTEPAA approached the National Offshore Petroleum Authority (NOPSA), the NT DoR and the Inquiry itself provides further evidence of the company’s poor governance. PTTEPAA did not seek to properly inform itself as to the circumstances and the causes of the Blowout. The information that it provided to the regulators was consequently incomplete and apt to mislead. Its dealings with this Inquiry followed a similar pattern.

The Inquiry recommends that the Minister for Resources and Energy review PTTEPAA’s licence to operate at the Montara Oilfield. At this juncture the Inquiry has little confidence in PTTEPAA’s capacity to apply principles of sensible oilfield practice ” (page 12)

There is nothing in these cases that should discourage a business from understanding and acting on any legal rights they have following a workplace accident. However, these rights and any legal strategy need to be carefully balanced as part of an overall response.

Risky Conversations, The Law, Social Psychology and Risk

June 14, 2016June 14, 2016 ~ My safety thoughts ~ 4 Comments

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?

May 19, 2016 ~ My safety thoughts ~ 8 Comments

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?

March 2, 2016 ~ My safety thoughts ~ 3 Comments

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.

Rethinking safety prosecutions part 2

March 1, 2016 ~ My safety thoughts ~ 7 Comments

Some time ago I wrote a post about the value of criminal prosecutions for safety breaches as part of effective safety management. The post is available HERE.

A discussion about the nature of “safety prosecutions” was recently held on LinkedIn following an article I posted about the acquittal of engineers involved in the Deepwater Horizon disaster in the Gulf of Mexico (see for example the CSB Report). You can see the LinkedIn discussion HERE.

Given the limited scope to expand a discussion in LinkedIn comments, I promised to write a more fulsome article, which I have attempted to do below.

The starting point for discussion about safety prosecutions is, I think, to understand what prosecutions are designed to achieve.

Inevitably in any discussion about safety prosecutions there is a multiplicity of views about what people perceive the process is designed to achieve. These include, compensation, punishment, deterrence and the opportunity to “learn lessons“.

In Australia at least, it seems unlikely that the current prosecution regime would fulfill any of these perceptions.

First, occupational safety and health prosecutions are not designed to compensate anyone. The workers compensation regime and/or civil proceedings (i.e. claims in negligence) are designed to compensate people for loss caused by workplace accidents and incidents. They are an entirely separate legal process, and compensation does not form part of the consideration of a criminal occupational safety and health prosecution.

Neither are occupational safety and health prosecutions designed as an opportunity to learn lessons. Prosecutions are typically run in relation to a very narrow set of charges and “particulars“. For example, if it is alleged that an employer failed to do everything reasonably practicable in that it failed to enforce its JHA procedure then the prosecutions about whether:

The alleged failure occurred; and
It was reasonably practicable for the employer to enforce that procedure.

There are no lessons about what might constitute a good JHA procedure, or a good process for ensuring that the procedure is followed.

As a more practical matter, prosecutions are very limited in their ability to teach us lessons because inevitably any decisions are made several years after the event occurred. In many cases decisions are not even published so that even if there were lessons that could be learned, they are not available to us.

Theoretically, prosecutions are designed to punish wrongdoers and provide both specific and general deterrence, that is, deter the guilty party from offending again and act as a warning to all other parties not to offend in the future.

Again, the evidence is far from clear that occupational safety and health prosecutions achieve this outcome, insofar as there does not appear to be evidence that a robust prosecution regime decreases the number of health and safety incidents.

For example, the ninth edition of the Workplace Relations Ministers’ Council Comparative Performance Monitoring Report issued in February 2008 show that Victoria and Western Australia, who had the lowest rate of prosecutions resulting in conviction at the time, also had the lowest incidence rates of injury and disease and enjoy the greatest reduction in average workers’ compensation premium rates over the three years to June 2006.

Of course, as with all statistical information, there could be any number of reasons for this finding. My point is not whether the finding is right or wrong. My point is we do not have the evidence and we have not had the discussion.

Although, the limited efficacy of criminal proceeding should not come as a surprise. The Robens Report published in the 1970s, an on which modern Australian health and safety legislation is based, identified:

The character of criminal proceedings against employers is inappropriate to the majority of situations which arise and the processes involved make little positive contribution towards the real objective of improving future standards and performance.

One of the ironies inherent in this discussion is that it is often the safety industry that is at the vanguard of the charge calling for significant prosecutions and directors to be sent to jail in the event of workplace accidents. This is the same industry that thrives on selling poor quality incident investigation processes based on a “no blame” culture.

It is interesting that the industry can say on one hand that we can only achieve effective safety outcomes where we don’t seek to blame, but that if something serious happens (i.e. someone dies) then there must be someone to blame and they should be prosecuted with the full force and effect of the law.

To me, this discussion is another example of the opportunity lost during the “harmonisation” of Australia’s health and safety legislation.

Rather than an informed discussion about how health and safety legislation could achieve the best health and safety outcomes, there seemed to be a broad assumption – not argued at best, unproven at worst – that, notwithstanding 20 or more years of history, prosecutions, large fines and personal liability was the best approach to improving health and safety outcomes in Australia.

I have personal views about what might be a better process to deal with those workplace accidents that are serious enough to warrant a “public response”, but this article is not the place to describe them. Rather, I hope that this article might prompt the safety industry to think more carefully about what it wants from its regulations and regulator and not use every workplace tragedy as an opportunity to promote the language of blame as an appropriate response to workplace accidents.

We cannot continue to promote safety using the message of fear and blame and then be surprised by how difficult it is to shift culture in an organisation.

New guidance material for lifting and related operations

December 10, 2015December 10, 2015 ~ My safety thoughts ~ Leave a comment

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

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

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

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

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

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

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

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

June 16, 2015June 16, 2015 ~ My safety thoughts ~ 10 Comments

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.