Tag: health and safety

What are our obligations to careless workers?

~ My safety thoughts ~ 2 Comments

When you survey the range of safety commentary online, it is hard to escape the view that workplace health and safety is still primarily concerned with the behaviour of individual workers, and incidents are the consequence of careless individuals.

In my experience, this thinking does not align with any credible safety management theory, and it is not consistent with an organisation’s obligations under health and safety legislation. At its simplest, a worker’s individual carelessness makes no difference to the obligations of their employer, other organisations or other individuals under health and safety legislation.

The fact that a careless, individual worker did not meet their obligations under health and safety legislation, is no answer to the question of whether you met yours.

In the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28 (read decision) the Court canvassed the issue of careless and disobedient workers in detail.

By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate an instrument a load cell which measured the weight of ore in the flask.

The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.

Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.

While Mr Pollard was working, the weights and basket fell out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.

The Court said:

In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers.[my emphasis added]

Drawing on precedent cases, the Court made several observations:

  • Health and safety legislation is designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry:

The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable…

  • “Foreseeability” is relevant, and it is not generally practicable to take measures to guard against a “detriment to safety” that was not reasonably foreseeable:

It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

  • If there is a foreseeable risk of injury arising from the employee’s negligence while working then the employer must take this into account.
  • The extent and standard of training an employer must give will depend upon the nature of, and circumstances under which, work is performed. It is not always necessary to have classroom-based instruction or work manuals. However, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training.
  • It is not enough to simply give employees instructions about health and safety “an employer must also ensure that those instructions are carried out”.
  • But, when an employer has established and implemented a proper system, then this can be an answer to the conduct of individual workers:

Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety.

In the PBHL case, the Court rejected any argument that carelessness by individual workers limited PBHL’s liability:

I do not see any scope for the application of a principle in this case that would limit the defendant’s liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA.

Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not. [my emphasis added]

The Court found procedures and instructions for the work were incomplete and workers were directed to start work when the JSA process was deficient and the JSA document was inadequate. The employer should have known both those things.

A common misconception is that safety prosecutions are all about identifying “fault” – who was at fault, or most at fault, when an accident occurred. This is not the case.

Employees who breach known safety procedures may be at “fault”. Indeed, individual workers and supervisors are prosecuted following workplace accidents. But an employees fault is no answer to the question, “did the employer meet their obligations under health and safety legislation?”.

The fact an employee breached safety procedures – even procedures they were aware of, does not prove an employer provided adequate training and supervision, nor does it prove an employer diligently enforced its systems of work.

What we say matters: Zero and other Aspirations

~ 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 Baker panel reviewoverloaded 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.

WHS Reporting and Due Diligence: Some practical thoughts

~ My safety thoughts ~ 4 Comments

My social media feeds have been abuzz recently following the release of Safe Work Australia’s report, Measuring and Reporting on Work Health & Safety. In part (or perhaps wholly) it is my fault for suggesting the report focussed on activity over assurance and could be problematic in that regard.  (see for example LinkedIn, Measuring and Reporting on Work Health & Safety, Everything is Green: The delusion of health and safety reporting).

In several comments and emails, I have been asked to provide some “practical” examples. While it is difficult to provide something that will satisfy everyone, below I offer a few questions that might be useful to interrogate the efficacy of health and safety reporting in your organisation.

I would preface the example below with an observation on due diligence.

Despite what several commentators and marketing campaigns might have you believe, due diligence cannot be satisfied with a checklist, or by attending a WHS training session. The concept of due diligence existed long before WHS legislation, and it has been examined by courts and tribunal in many areas of business. One of the underpinning concepts of due diligence is “independent thought”.

It is incumbent on an individual who is charged with exercising due diligence to exercise a level of independence to understand the “thing” they are required to be diligent about. If that thing is safety, due diligence requires more than passively accepting a monthly WHS report. Due diligence requires independent thought and challenge to understand what you need to know about health and safety and whether the report is informing you about what you need to know.

So, in the spirit of that inquiry, what questions might you ask?

What is the purpose of health and safety reporting?

It might seem trite, but I think it is a legitimate question to start with. After all, if we do not start with a purpose, how to we judge effectiveness?

To many, the purpose of health and safety reporting might seem obvious, but if the history of workplace health and safety has taught us nothing else in the last 30 years, it has taught us about the dangers of assumptions. Do not assume to know the purpose of anything in health and safety – actually know the purpose and test against that purpose.

In many organisations, health and safety reporting is sold as a legal requirement, so in keeping with that theme, perhaps the purpose of health and safety reporting might be

To demonstrate the extent to which our health and safety risks are managed so far as reasonably practicable.

But before the comments start flowing about legal expectations being our minimum standards (sigh!), perhaps we can agree on something like:

To demonstrate the extent to which our health and safety risks are managed.

For those of you who aspire to “zero”, I will leave it to you to come up with your own purpose statement for health and safety reporting. Good luck.

What is the purpose and relevance of an element of health and safety reporting?

Health and safety reports might be filled with all sorts of statements and data. But what purpose do they serve?

A very popular health and safety reporting metric is the number (or percentage) of corrective actions closed out following an incident investigation.

On its face, that statistic is nothing more than a measure of activity – how many things have been done against how many things should have been done. On its face, and at its highest, it might be a measure of “operating discipline” – we are good at doing the things we said we would.

But if the purpose of health and safety reporting is to demonstrate the extent to which our health and safety risks are managed, it does not seem to add much value at all.

Another way to think about a statistical set of action items being closed out is to consider them as an indicator of the effectiveness of incident investigations. After all, the quality of incident investigations is very important to the overall quality of health and safety management and something that inquiries are likely to look at in the event of an accident (See for example Everything is Green: The delusion of health and safety reporting)

Perhaps if people had spent more time asking this question about injury rate data over the past 25 years, it would not have pride of place in safety management today.

What assumption do we have to make if an element of health and safety reporting is going to have value?

If we argue that the number (or percentage) of corrective actions closed out following an incident investigation tells us something about the quality of incident investigations, what assumptions do we have to make?

If 100% of corrective actions from incident investigations have been closed out, and I have a sense of comfort from that, I am making several assumptions. I am making assumptions:

  • About the quality of the incident investigations;
  • About the strength of the reasoning and analysis leading to the findings;
  • That the corrective actions have a strong, logical relevance to the findings;
  • That the corrective actions will be effective to address the issues identified in the incident investigation;
  • That the corrective actions have been closed out, as opposed to ticked off in a data base;
  • That the corrective actions have been well implemented; and
  • That the corrective actions are effective to address the issues identified in the incident investigation.

None of these issues are revealed by the number (or percentage) of corrective actions closed out following an incident investigation.

Indeed, if a health and safety report could show 100% of corrective actions from incident investigations have been closed out without any of the assumptions above being true.

And if these assumptions are not valid, and if a major accident happens, and if it is found that incident have never been properly investigated[1], how can it be said that an organisation and its management was serious about health and safety and exercising due diligence?

I have always believed, at its core, health and safety management is about controlling health and safety hazards.

To some extent, I do not care how organisations say they manage health and safety – safety 1, safety 2, safety differently, visible felt leadership, rules, procedures, prescription, discretion, people are the problem, people are the solution etc., etc., etc. – prove to me that it works. Prove to me that what you do controls the health and safety hazards in your business.

If two people die in an electrical incident at your workplace, nobody cares what your last safety culture survey reveals. You need to demonstrate how the risk of electrocution was managed in your organisation, and whether it was managed effectively.

No one cares what your TRIFR rate is, no one cares how many action items have been closed out, no one cares how many safety interactions your managers have, no one cares how many hazards have been reported, no one cares how many pre-start meetings you have conducted ….

The relevant issue is whether health and safety hazards have been effectively managed.

The things we do in the name of health and safety only matter to the extent that they have a role to play in managing health and safety hazards.

If the number of action items closed out after an incident investigation is important to how hazards are managed, we should be able to explain how and demonstrate the relationship.

Health and safety reporting only matters if it gives us an insight into how well we manage health and safety.

What does your health and safety reporting really tell you?

 

[1] See for example the Royal Commission into the Pike River tragedy.

Measuring and Reporting on Work Health & Safety

~ My safety thoughts ~ 8 Comments

I approach this article with some trepidation.

I was recently sent a copy of Safe Work Australia’s report, Measuring and Reporting on Work Health & Safety, and subsequently saw a post on LinkedIn dealing with the same.  I made some observations on the report in response to the original post which drew the ire of some commentators (although I may be overstating it and I apologise in advance if I have), but I did promise a more fulsome response, and in the spirit of a heartfelt desire to contribute to the improvement of health and safety in Australia – here it is.

I want to start by saying, that I have the utmost respect for the authors of the report and nothing is intended to diminish the work they have produced.  I also accept that I am writing from a perspective heavily influenced by my engagement with health and safety through the legal process.

I also need to emphasise that I am not dismissing what is said in the report, nor saying that some of the structures and processes proposed by the report are not valid and valuable.  But I do think the emphasis in the report on numerical and graphical information has the potential to blind organisations to the effectiveness of crucial systems.

I also want to say that I have witnessed over many years – and many fatalities – organisations that can point to health and safety accreditations, health and safety awards, good personal injury rate data, good audit scores and “traffic lights” all in the green.  At the same time, a serious accident or workplace fatalities exposes that the same “good” safety management systems are riddled with systemic failure – long term systemic departures from the requirements of the system that had not been picked up by any of the health and safety measures or performance indicators.

I am not sure how many ways I can express my frustration when executive leadership hold a sincere belief that they have excellent safety management systems in place, only to realise that those systems do not even begin to stand up to the level of scrutiny they come under in a serious legal process.

In my view, there is a clarity to health and safety assurance that has been borne out in every major accident enquiry, a clarity that was overlooked by the drafters of WHS Legislation and a clarity which is all too often overlooked when it comes to developing assurance programs.  With the greatest respect, possible to the authors of this report, I fear this has been overlooked again.

In my view, the report perpetuates activity over assurance, and reinforces that assumptions can be drawn from the measure of activity when those assumptions are simply not valid.

Before I expand on these issues, I want to draw attention to another point in the report.  At page 38 the report states:

“Each injury represents a breach of the duty to ensure WHS”

To the extent that this comment is meant to represent in some way the “legal” duty, I must take issue with it.  There is no duty to prevent all injuries, and injury does not represent, in and of itself, a breach of any duty to “ensure WHS”.  The Full Court of the Western Australia Supreme Court made this clear in Laing O’Rourke (BMC) Pty Ltd v Kiwin [2011] WASCA 117 [31], citing with approval the Victorian decision, Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 – 124:

“The Act does not require employers to ensure that accidents never happen.  It requires them to take such steps as are practicable to provide and maintain a safe working environment.”

But to return to the main point of this article.

In my view, the objects of health and safety assurance can best be understood from comments of the Pike River Royal Commission:

“The statistical information provided to the board on health and safety comprised mainly personal injury rates and time lost through accidents … The information gave the board some insight but was not much help in assessing the risks of a catastrophic event faced by high hazard industries. …  The board appears to have received no information proving the effectiveness of crucial systems such as gas monitoring and ventilation.”

I have written about this recently, and do not want to repeat those observations again (See: Everything is Green: The delusion of health and safety reporting), so let me try and explain this in another way.

Whenever I run obligations training for supervisors and managers we inevitably come to the question of JHAs – and I am assuming that readers will be familiar with that “tool” so will not explain it further.

I then ask a question about how important people think the JHA is.  On a scale of 1 to 10, with 1 being the least important and 10 being the most, how important is the JHA?

Inevitably, the group settles on a score of somewhere between 8 and 10.  They all agree that the JHA is “critically important” to managing health and safety risk in their business.  They all agree that every high hazard activity they undertake requires a JHA.

I then ask, what is the purpose of the JHA.  Almost universally groups agree that the purpose of the JHA is something like:

  • To identify the job steps
  • To identify hazards associated with those job steps
  • To identify controls to manage the hazards; and
  • To help ensure that the work is performed having regard to those hazards and the controls.

So, my question is, if the JHA is a “crucial system” or “critically important” and a key tool for managing every high-risk hazard in the workplace, is it unreasonable to expect that the organisation would have some overarching view about whether the JHA is achieving its purpose?

They agree it is not unreasonable, but such a view does not exist.

I think the same question could be asked of every other potentially crucial safety management system including contractor safety management, training and competence, supervision, risk assessments and so on. If we look again to the comments in the Pike River Royal Commission, we can see how important these system elements are:

“Ultimately, the worth of a system depends on whether health and safety is taken seriously by everyone throughout an organisation; that it is accorded the attention that the Health and Safety in Employment Act 1992 demands.  Problems in relation to risk assessment, incident investigation, information evaluation and reporting, among others, indicate to the commission that health and safety management was not taken seriously enough at Pike.”

But equally, the same question can be asked of high-risk “hazards” – working at heights, fatigue, psychological wellbeing etc.

What is the process to manage the hazard, and does it achieve the purpose it was designed to achieve?

The fact that I have 100% compliance with closing out corrective actions tells me no more about the effectiveness of my crucial systems than the absence of accidents.

The risk of performance measures that are really measures of activity is tha they can create an illusion of safety.  The fact that we have 100% compliance with JHA training, a JHA was done every time it was required to be done, or that a supervisor signed off every JHA that was required to be signed off – these are all measures of activity, they do not tell us whether the JHA process has achieved its intended purpose.

So, what might a different type of “assurance” look like?

First, it would make a very conscious decision about the crucial systems or critical risks in the organisation and focus on those. Before I get called out for ignoring everything else, I do not advocate ignoring everything else – by all means, continue to use numerical and similar statistical measures for the bulk of your safety, but when you want to know that something works – you want to prove the effectiveness of your crucial systems – make a conscious decision to focus on them.

I thought that the JHA process was a crucial system, I would want to know how that process was supposed to work? If it is “crucial”, I should understand it to some extent.

I would want a system of reporting that told me whether the process was being managed the way it was supposed to be. And whether it worked. I would like to know, for example:

  • How many JHAs were done;
  • How many were reviewed;
  • How many were checked for technical compliance and what was the level of technical compliance? Were they done when they were meant to be done, were they completed correctly etc.
  • How many were checked for “quality”, and what the quality of the documents like? Did they identify appropriate hazards? Did they identify appropriate controls? Were people working in accordance with the controls?

I would also want to know what triggers were in place to review the quality of the JHA process – was our documented process a good process? Have we ever reviewed it internally? Do we ever get it reviewed externally? Are there any triggers for us to review our process and was it reviewed during the reporting period – if we get alerted to a case where an organisation was prosecuted for failing to implement its JHA process, does that cause us to go and do extra checks of our systems?

We could ask the same questions about our JHA training.

I would want someone to validate the reporting. If I am being told that our JHA process is working well – that it is achieving the purpose it was designed for – I would like someone (from time to time) to validate that. To tell me, “Greg, I have gone and looked at operations and I am comfortable that what you are being told about JHAs is accurate. You can trust that information – and this is why …”.

As part of my personal due dilligence, if I thought JHA were crucial, when I went into the field, that is what I would check too. I would validate the reporting for myself.

I would want some red flags – most importantly, I would want a mandatory term of reference in every investigation requiring the JHA process to be reviewed for every incident – not whether the JHA for the job was a good JHA, but whether our JHA process achieved its purpose in this case, and if not, why not.

If my reporting is telling me that the JHA process is good, but all my incidents are showing that the process did not achieve its intended purpose, then we may have systemic issues that need to be addressed.

I would want to create as many touch points as possible with this crucial system to understand if it was achieving the purpose it was intended to achieve.

My overarching concern, personally and professionally, is to structure processes to ensure that organisations can prove the effectiveness of their crucial systems. I have had to sit in too many little conference rooms, with too many managers who have audits, accreditations, awards and health and safety reports that made them think everything was OK when they have a dead body to deal with.

I appreciate the attraction of traffic lights and graphs. I understand the desire to find statistical and numerical measures to assure safety.

I just do not think they achieve the outcomes we ascribe to them.

They do not prove the effectiveness of crucial systems.

 

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

~ 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.

 

 

 

 

Safety leadership: enabler, excuse or doing harm?

~ My safety thoughts ~ 1 Comment

I do not think that there is any serious view suggesting that “leadership” is not an important, if not the most important driver of safety performance.  One of the main findings from a 2002 review of Safety Culture was:

…  management was the key influence of an organisation’s safety culture. A review of the safety climate literature revealed that employees’ perceptions of management’s attitudes and behaviours towards safety, production and issues such as planning, discipline etc. was the most useful measurement of an organisation’s safety climate. The research indicated that different levels of management may influence health and safety in different ways, for example managers through communication and supervisors by how fairly they interact with workers (Thompson, 1998). Thus, the key area for any intervention of an organisation’s health and safety policy should be management’s commitment and actions towards safety (Safety Culture: A review of the literature).

In the wake of findings like these, and numerous others, it is unsurprising that safety leadership often dominates discussions about safety management.

But are there conversations about safety leadership that we are not having and should be?

To my mind, the hard work in health and safety management is understanding if, or the extent to which, health and safety risks in our business are being controlled.  All too often, however, in my experience “leadership” is an excuse to avoid the hard work of health and safety management.

The “psychology” (and I use that term as a complete layperson) of safety leadership seems to be that if I can convince my workforce that I genuinely care for them and that safety is genuinely important, then safety will take care of itself.

If I “care“, if I am a “safety leader” I do not need to do the hard work to critically challenge incident investigations, I do not need to analyse, understand and challenge audits.  If I am a “safety leader” then I can accept declining personal injury rates and green traffic lights on my corporate scorecard as evidence that my safety management system is working, without ever having to challenge the assumptions that underpinned that information.  Assumptions that have been shown time and again to be wrong.

This is the same discourse that threaded its way through safety culture: It doesn’t matter how bad our management systems are because we have a good “culture“.   It is also the same discourse that is starting to creep into the next wave of safety thinking, concepts like “safety differently” and “appreciative enquiry“.

I make no comment on the efficacy of leadership, culture, safety differently, appreciative enquiry or whatever the next trend will be but I do question where, in any of these concepts, we do the hard work of confirming that our risks are being controlled.

I recall many years ago reviewing a matter where a worker sent a hazardous substance through the internal mail using a yellow into office envelope (back when they existed).  The worker broke every one of the organisations procedures and protocols for managing hazardous substances, yet the organisation viewed this dangerous  event as a triumph of their “culture“, because the worker “cared“.

The twisted logic where organisations use leadership or culture to wallpaper over the cracks of ineffective safety management systems, and actively avoid the hard work of understanding if their risks are being controlled,  is very often bought into stark relief following a disaster.

The next time you are in a meeting discussing safety management  listen to see if leadership or culture is being used as an avoidance strategy.  Are the difficult topics such as improving the quality of incident investigation or clarifying complex and bureaucratic safety management systems  or improving risk assessments bypassed with comments like:

we just need to get out and be seen more

or

we just need to spend more time in the field talking to the blokes

 Is this leadership or an excuse to avoid the hard work?

Over and above  avoiding what really needs to be done, is it possible that the things we do in the name of “leadership” have the potential to actively undermine safety in our organisations?

Whatever your “leadership” objective might be, whether it is to demonstrate commitment, to understand the work being performed in your organisation, to appreciate what might be preventing people from complying with safety procedures or any other objective, how do you know that your actions in the name of leadership are achieving those objectives?   Because for all your good intentions there is a real risk that your presence in the field talking about safety might have the opposite effect.  It might promote cynicism amongst your workforce, it might disengage them from your safety message.

You may be seen as a leader whose only concern is to cover their own backside and who obsesses over safety issues important to you, without really listening to the concerns of the workforce.

How do you know if your safety leadership works?

I think that much of what is done in the name of safety and health has, consciously or unconsciously, devolved into “window dressing“.   Much of what we do is held up to the public or to our workforce as evidence of our commitment to safety, yet the substantive hard work necessary to understand if our health and safety risks are being managed remains undone – the façade of health and safety management is attractive but the building is crumbling.

Safety leadership and related concepts of care and culture have a place.  More than that, they are critically important.  But they are not buzzwords to be lightly tossed around and as a critical process, leadership deserves the same level of scrutiny and analysis as any of your other critical processes.

Welcome to the intellectual vacuum that is political comment on WHS

~ My safety thoughts ~ 7 Comments

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.

Systems as Imagined v Systems in Practice

~ 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;

  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.

 

Post incident conduct: Is it relevant?

~ 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.

 

The Safety Paradox and the challenge of health and safety assurance

~ My safety thoughts ~ 14 Comments

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 purpose – creating habits in people’s minds so that they are constantly aware of hazards in the work environment – is 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.