Tag: health and safety

Due diligence: understanding performance or measuring activity?

~ My safety thoughts ~ 3 Comments

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

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

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

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

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

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

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

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

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

Is it?

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

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

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

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

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

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

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

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

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

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

What do you know about your safety initiatives?

 

Risky Conversations, The Law, Social Psychology and Risk

~ 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?

~ 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?

Dangerous Goods amendments in Western Australia

~ My safety thoughts ~ 1 Comment

Amendments to the Western Australian Dangerous Goods Safety (Road and Rail Transport of Non-explosives) Regulations 2007 will take effect from 1 January 2016.

The amendments clarify the duties of parties in the transport chain, such as consignors, loaders and prime contractors and rail operators. For example, a new regulation 114(5) provides:

(5) A prime contractor or rail operator must not transport a load of dangerous goods (other than a placard load) in or on a cargo transport unit if —  

(a) the load is placarded; and  

(b) the person knows, or ought reasonably to know, that the placarding is false or misleading in a material particular.  

Penalty for this subregulation: a fine of $10 000. 

You can access a copy of the amending legislation HERE.

The amending regulations also refer specifically to the  Australian Code for the Transport of Dangerous Goods by Road and Rail, and include the following definition:

ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail (also called the Australian Dangerous Goods Code) published by the National Transport Commission, Edition 7.4 (ISBN 978-1-921604-69-0), as in effect on 1 January 2016, including (for the avoidance of doubt) its appendices;

Importantly,  a new ADG Code was published on 18 December 2015.

You can access the ADG Code and further information about it HERE.

New guidance material for lifting and related operations

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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?

~ 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.

Gallifreyan_20150512223239

I have read and understood ….. What is the value of providing safety documents to employees?

~ My safety thoughts ~ 3 Comments

A recent NSW Industrial Relations Court decision has agitated the question of whether an employer needs to provide written safe work procedures to its employees as part of their duty to provide a safe workplace.

In Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd [2015] NSWDC 15 a company and its director were prosecuted after an employee suffered severe burns while filling a burning pot used to heat food trays for a buffet style meal. The pots were filled using methylated spirits.

One of the allegations in the case was that the employer had not provided the employee with a “written safe work method” for the task. The Court found that the failure to provide the written information was not a breach of the employers obligations:

I do not think that the case for providing her with a written safe work method is made good. The written document for an immigrant such as Anisha may be difficult to comprehend and follow and may not necessarily be effective. A spoken direction is more likely to be effective.

This is not unprecedented, or unsurprising. In a 2013 South Australian decision, Moore v SD Tillett Memorials Pty Ltd [2013] SAIRC 47 it was alleged by the prosecution that the employer should have kept a record of a training document, and who that document was provided to. In relation to that allegation the Court said:

This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees …

Another instructive case is Inspector Shepherd v Desiya Pty Ltd [2013] NSWIRComm 9. In that case workers were provided with “on the job” training in relation to operating machinery and traffic management in a work yard. An employee was killed when he was hit by a truck.

One of the allegations against the company (which was ultimately convicted) was:

The training and assessment of drivers of yard trucks was done via ‘on the job training’ and assessment.

One the job training is a legitimate training method, indeed, as illustrated by the Siva & Jeya Pty Ltd case, may be the appropriate method. In the case of Desiya, on the job training was a deliberate and legitimate strategy:

Verbal instructions were commonly used … as a control measure against employees with poor literacy skills not understanding the written instructions contained within training documentation.

The difficulty lay, not in the strategy, but the execution.

The competence of the trainee or trainer was not assessed against any documented objective criteria. After this ‘training’ process, if the driver was assessed as competent by the supervisor they were then permitted to operate the truck.

There are many appropriate and legitimate ways that an employer can discharge their obligations to ensure that employees are trained and competent to perform their work safely. These might include formal class room training, on the job training, computer based training, the use of written work instructions and so on.

The lessons from these, and similar cases, is that simply providing safe work procedures to employees is not sufficient to discharge and employers obligations. In all likelihood, simply providing training, no matter what its purported “quality” will not be sufficient either.

Documented safe work procedures should be developed and maintained, but they are not an end in themselves – they are simply the evidence of the “objective criteria” against which workplace safety will be judged.

To discharge obligations to ensure relevant training and competency in the workplace, employers need to be able to demonstrate that:

  1. Workers have been provided with the relevant information about how to do their job safely;
  2. Workers understand that information;
  3. Work is actually performed in accordance with the training; and
  4. There is ongoing supervision and enforcement of the training.

Equally importantly, this does not require dumbing everything down and treating workers like fools. Give workers the information they need to do their job safely, trust them and supervise them with respect – you might just be surprised by the results.

Boal V BHP – Zero Tolerance: Are your “systems” commensurate to your attitudes?

~ My safety thoughts ~ 1 Comment

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 undermines the objectives it is trying to achieve.

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, as a lawyer who specialises in workplace safety and health, I was very interested in a recent decision by the Fair Work Commission that demonstrates how an employers attitude of zero can be used against them.

In Mr Shannon Boal v BHP Coal Pty Ltd (U2014/5272), Mr Boal was dismissed for breaching mobile phone usage requirements when his mobile phone was found in the cabin of the truck he had been operating.

While the Fair Work Commission found that there was a valid reason to terminate Mr Boal’s employment, it found that the termination was unfair for a number of procedural reasons. In part, the Fair Work Commission relied on the level of training and information that Mr Boal 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).

Whatever your view about zero as appropriate language for managing workplace health and safety issues, there is no doubt that it is strong, absolutist language. If you are going to frame your approach to safety in the rhetoric of zero, you need to be sure that your actions at work match the rhetoric. If you don’t, your workers will see your safety messages as nothing but “window dressing“, designed to look good but basically meaningless, and lawyers will use the term to undermine the efficacy of your systems.

Case discussion: Capon v BHP Billiton – Part 2 the appeal

~ My safety thoughts ~ 4 Comments

Early in 2013 BHP Billiton was convicted and fined $130,000 following a fatality at one of its facilities in Port Hedland. They were also ordered to pay $300,000 in legal costs.

Amongst the reasons for the conviction was BHP’s apparent failure to implement and enforce its own requirements for supervision and risk assessments by workers.

A video presentation and discussion about the case is available by following the link below:

Capon v BHP Billiton Iron Ore PH 1917/11

On 28 July 2014, the Western Australian Supreme Court allowed, in part, an appeal by BHP against the conviction. A key finding was that, while BHP did not enforce or supervise its own processes in relation to JHAs or Take 5s, that failure did not “cause” the fatality.

You can access a copy of the case here:

BHP Billiton Iron Ore Pty Ltd v Capon [2104] WASC 267

You can also see a video presentation and discussion about the case by following this link:

BHP Billiton Iron Ore Pty Ltd v Capon [2104] WASC 267 – discussion

(There is also an App available if you want to download the presentation to your device and view it later – iSpring Mobile Player)

A key question that comes out of the case – and one that I think has had some relevance for a number of years now is, what value does the JHA process add to our safety management system, and is there a case for removing them from our day to day processes?

At least, it seems that there is an arguable case that the JHA process should not be adopted with such lemming like dogma, and we can consider front line risk assessment processes that actually add value to our business.