Due Diligence prosecutions under WHS Legislation (and other fairy stories)

August 15, 2017 ~ My safety thoughts ~ 3 Comments

Due diligence was supposed to be the health and safety “boogie man“, hiding under the beds of boards and CEOs – keeping them awake at night and focusing their minds on health and safety. The truth is the due diligence provisions in WHS legislation have made no practical change to the legal regulation of health and safety management at an executive level (whatever their theoretical legal effect might be) and continue the long-running lack of interest in health and safety at a boardroom level that Australian regulators have evidenced for years.

I am happy to be corrected on numbers, but as far as I can tell, since introduction of WHS legislation in about January 2012, there have been 819 workplace fatalities according to Safe Work Australia’s figures. I do not know how many of those resulted in prosecutions – it is extraordinarily difficult to draw the disparate data of health and safety regulators together to create a meaningful picture. But what does seem fairly clear, is that there have only been a handful of prosecutions under the due diligence provisions of WHS legislation. Moreover, every one of those has been against a small business and the person prosecuted has some hands-on, day-to-day involvement with the work being performed. There is no example as far as I can tell of a “company officer” who is removed from the day-to-day operations of the business.

Presumably, all of the boards and chief executive officers of large organisations who have suffered workplace fatalities are exercising effective due diligence. I think it is far more likely that the question has not even been asked and this level of executive management has not been subject to any scrutiny whatsoever about their oversight of health and safety management. Again, I stand to be corrected.

None of this should come as a surprise to anybody who has an understanding of health and safety prosecutions in Australia over the years. Nearly every example of “management” prosecutions have been against managers of small businesses with day to day involvement in the operations of the business.

A 2005 paper by Neil Foster found:

In cases involving formally appointed directors, almost every case involved a director who was heavily involved in decisions or actions “on the ground” which led directly to the incident concern (page 114).

and

Almost all the companies concerned (as far as can be judged from the reports examined) were either effectively “one-person” companies or at least small family companies with limited assets. … The directors concerned were almost all likely to have high personal knowledge of workplace procedures and, as noted above, many were heavily involved in the particular incident concern. There are no examples in these cases of a large company where a member of the board was held liable for failure to exercise “due diligence” in addressing the issue of safety (page 116).

(Personal Liability of Company Officers for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), (2005) 18 Australian Journal of Labour Law, 106)

Nothing, it seems has changed.

Measuring and Reporting on Work Health & Safety

March 15, 2017 ~ 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?

March 15, 2017 ~ My safety thoughts ~ 2 Comments

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

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

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

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

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

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

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

The Federal Court noted at [106]:

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

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

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

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

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

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

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

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

Welcome to the intellectual vacuum that is political comment on WHS

October 29, 2016 ~ 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.

Reflections on Safety: Reasonably Practicable

October 23, 2016 ~ My safety thoughts ~ 2 Comments

In August 2016, I wrote a WHS Update about the High Court decision, Deal v Father Pius Kodakkathanath [2016] HCA 31 which considered the legal test of Reasonably Practicable in the context of Australian health and safety legislation. Shortly after that, one of my connections on Linkedin posted an article about Reasonably Practicable. The article offered an engineering perspective on “As Low as Reasonably Practicable” (ALARP), stating:

… recent developments in Australian workplace health and safety law place proactive responsibilities on senior personnel in organisations, so they must be fully informed to make proper decisions

This sentiment seemed similar to an earlier engineering publication which argued that ALARP and “So Far as is Reasonably Practicable” (SFARP) were different and that this difference was, in part a least as result of “harmonised”, WHS legislation.

In both cases, I believed the articles were misaligned with the legal construct of Reasonably Practicable and misrepresented that there had been a change in the legal test of Reasonably Practicable prompted by changes to WHS legislation.

This background caused me to reflect again on the notion of Reasonably Practicable and what it means in the context of legal obligations for health and safety.

To start, I do take issue with the suggestion that changes to WHS legislation have resulted in a shift in what Reasonably Practicable means. The basis of this idea seems to be an apparent change in terminology from ALARP to SFARP.

The term SFARP was in place in health and safety legislation before the introduction of WHS and jurisdictions that have not adopted WHS legislation still use the term. For example, the primary obligations under the Victorian Occupational Health and Safety Act 2004 are set out in section 20, and state:

To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person …

Indeed, the architects of WHS legislation[1] specifically retained the term Reasonably Practicable because it was a common and well-understood term in the context of Australian health and safety legislation:

5.51 Reasonably practicable is currently defined or explained in a number of jurisdictions. The definitions are generally consistent, with some containing more matters to be considered than others. The definitions ‘are consistent with the long settled interpretation by courts, ‘in Australia and elsewhere.

5.52 The provision of the Vic Act relating to reasonably practicable was often referred to in submissions (including those of governments) and consultations as either a preferred approach or a basis for a definition of reasonably practicable.

5.53 We recommend that a definition or section explaining the application of reasonably practicable be modelled on the Victorian provision. We consider that, with some modification, it most closely conforms to what would be suitable for the model Act. [My emphasis added]

In my view, it is unarguable that the concept of Reasonably Practicable has been well-settled in Australian law for a considerable period, and the concept has not changed with the introduction of WHS legislation.

If we accept that Reasonably Practicable has been consistently applied in Australia for some time, the next question is, what does it mean?

Reasonably Practicable is a defined term in most health and safety legislation in Australia. Section 20(2) of the Victorian Occupational Health and Safety Act 2004, for example, states:

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

In the High Court decision, Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, Justice Gaudron described Reasonably Practicable as follows:

The words “reasonably practicable” have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words “reasonably practicable” are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible”;
what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time;
to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[2] [my emphasis added]

Another High Court decision, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, emphasised similar ideas.

The case concerned that the death of a subcontracted worker during forklift operations. Baiada was the Principal who had engaged the various contractors to perform the operations and in an earlier decision the court had concluded:

it was entirely practicable for [Baiada] to required contractors to put loading and unloading safety measures in place and to check whether those safety managers were being observed from time to time ((2011) 203 IR 396 at 410)

On appeal, the High Court framed this finding differently. They observed:

As the reasons of the majority in the Court of Appeal reveal by their reference to Baiada checking compliance with directions it gave to [the contractors], the question presented by the statutory duty “so far as is reasonably practicable” to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada’s obligation “so far as is reasonably practicable” to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.[3] [my emphasis added]

In light of these, and other decided cases it is possible to form a practical test to consider what is Reasonably Practicable. In my view, it is necessary for an organisation to demonstrate that they:

Have “Proper Systems” to manage the health and safety risks in their business; and
Exercise “Adequate Supervision” to ensure that the Proper Systems are implemented and effective to manage the risks.

What constitutes Proper Systems and Adequate Supervision is a judgement call that needs to be determined with regard to the risks. It requires an organisation to balance the risk against the cost, time and trouble of managing it.[4]

It is also worth noting at this point, that Reasonably Practicable is, generally speaking, an organisational obligation. It is not an individual,[5] and in particular, it is not an employee obligation.

I often see, when working with clients, safety documents required be signed by employees that the state that risks have been controlled to “ALARP”. This is not the employee’s responsibility and the extent to which an employee does or does not control the risk to ALARP does not affect an employer’s obligations.

In broad terms, it is the organisation’s (PCBU or employer) obligation to manage risks as low as, or so far as is, Reasonably Practicable. The employee obligation is to do everything “reasonable”. This includes complying with the organisation’s systems.

It is the organisation’s obligation to identify the relevant health and safety risks and define how they will be controlled, ensuring that the level of control is “Reasonably Practicable. It is the employee’s obligation to comply with the organisation’s requirements.

So, what might Reasonably Practicable look like in practice?

I recently defended a case that involved a worker who was seriously injured at work. Although the injury did not result from a fall from height, the prosecution case against my client was based on failure to meet its obligations about working at heights.

My client had, on any measure, a Proper System for managing the risk of work at heights. They had a documented working at height Standard and Procedure both of which were consistent with industry best practice and regulator guidance material. All work at height above 1.8 m required a permit to work and a JHA. The documented procedures prescribed appropriate levels of supervision and training.

In the three years before the relevant incident, my client had not had a working at height incident of any sort nor had they had a health and safety incident at all. Based on all of our investigations as part of preparing the case, there was nothing to suggest that the incident information was not legitimate.

The activity which was being performed at the time of the incident was conducted routinely, at least weekly, at the workplace.

In looking to construct a Reasonably Practicable argument to defend the case what would we be trying to do? In essence, I would be trying to establish that the incident was an aberration, a “one off departure” from an otherwise well understood, consistently applied system of work that was wholly appropriate to manage the risk of working at heights.

In practice, that would mean:

Producing statements from all of the workers who performed this task describing how it was performed in practice, and demonstrating that their understanding of the way the work was performed in practice was consistent with the requirements of the organisation’s documented systems;
Producing completed documentation from when the job had been performed previously, and demonstrating that the documentation was consistent with the organisation’s requirements, and completed correctly;
Producing statements from supervisors who approved the documentation and oversaw the performance of the work and demonstrating that their understanding of the way that the work was performed in practice was consistent with the requirements of the organisation’s documented systems;
Producing completed documentation from when the injured worker had performed the work previously and demonstrating that the documentation was consistent with the organisation’s requirements and completed correctly.

There may be other information that we would seek, but in broad terms, the information outlined above helps to build a case that there was a proper system that was effectively implemented and that:

All the workers understood the system,
All the workers understood how it ought to have been applied, and
It was applied in practice.

What happened?

Rather than be able to demonstrate that the incident was a one-off departure from an otherwise effective system, the evidence revealed a complete systemic failure. While the documented system was a Proper System and complied with all relevant industry standards and guidelines, it was not implemented in practice.

Most compelling was the fact that, despite this being a weekly task, there was not a single instance of the working at height Standard and Procedure been complied with. We could not produce a single example where either the injured worker or indeed any worker who had performed the task had done so under an approved permit to work with an authorised JHA.

All of the workers gave evidence that the primary risk control tool on site was a Take 5. The Take 5 is a preliminary risk assessment tool, and only if that risk assessment scored 22 or above was a JHA required. The task in question was always assessed as 21. The requirement for a JHA, in the minds of the workforce, was never triggered and none of them understood the requirements of the Standard or Procedure.

To me, this case is entirely indicative of the fundamental failure of Reasonably Practicable in most workplaces. In the vast majority of cases that I have been involved in the last 25 years, organisations have systems that would classify as Proper Systems. They are appropriate to manage the risk that they were designed to manage.

Equally, organisations cannot demonstrate Adequate Supervision. While there may be audits, inspections, checking and checklists – there is no targeted process specifically designed to test and understand whether the systems in place to manage health and safety risks in the business are in fact implemented and are effective to manage those risks.

In my experience, most organisations spend far too much time trying to devise the “perfect” Proper System. We spend far too little time understanding what needs to be done to confirm that the System works, and then leading the confirmation process.

Reasonably Practicable has not changed.

Reasonably Practicable is not a numeric equation.

Reasonably Practicable changes over time.

Reasonably Practicable is an intellectual exercise and a judgement call to decide how an organisation will manage the health and safety risks in its business.

Reasonably Practicable requires an organisation to demonstrate that they:

Have “Proper Systems” to manage the health and safety risks in their business; and
Exercise “Adequate Supervision” to ensure that the Proper Systems are implemented and effective to manage the risks.

[1] See the National Review into Model Occupational Health and Safety Laws: First Report, October 2008.

[2] Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 [53].

[3] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 [33].

[4] See also: Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58 and Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209.

[5] There are some exceptions to this where an individual, usually a manager or statutory officeholder will be required to undertake some action that is Reasonably Practicable.

This article is a general discussion about Reasonably Practicable and related concepts. it should not be relied on, and is not intended to be specific legal advice.

Risky Conversations, The Law, Social Psychology and Risk

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

New book by Dr Rob Long, Greg Smith and Craig Ashhurst

It is with pleasure I can announce the publication of my new book, Risky Conversations, The Law, Social Psychology and Risk which has been produced in conjunction with Dr Robert Long and Craig Ashurst.

The book is also the 5th in Dr Long’s series on the Social Psychology of Risk.

Risky Conversations

The book is the result of three days of conversations between myself, Dr Long and Craig in February 2016 when we gathered together with Rick Long of InVision Pictures and recorded conversations on twenty three topics in risk and safety. The recorded conversations were transcribed by Max and Sylvia Geyer and then we wrote commentary into the margins of the book (see an example below).

The book is 160 pages and included in the $49.95 price is access to all the videos. In addition a talking book of all the conversations can be purchased for $10.

The book can be purchased here: http://cart.humandymensions.com/?product_cat=books&paged=1

A sample of the Introduction and Chapter 1 can be downloaded here: Risky Conversations Chapter 1

You can see a sample of one of the videos here: https://vimeo.com/162034157

Perth Book Launch: A full launch will be held in Perth on 11 August where all three authors will be present in conjunction with a training day on the Social Psychology of Risk. Details to be announced soon in conjunction with a training day in the Social Psychology of Risk in Perth (to be held in conjunction with IFAP).

Melbourne Book Launch: Kevin Jones (safetyatworkblog) will be launching the book in Melbourne on 27 July (lunch time on day two of the SEEK program). Places for the launch are strictly limited to 30 and can be secured by email toadmin@humandymensions.com Download the SEEK flyer here: http://cart.humandymensions.com/wp-content/uploads/2016/05/SEEK-Program-Human-Dymensions.pdf). All people participating in the SEEK program receive a complimentary copy of the new book.

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

May 19, 2016 ~ My safety thoughts ~ 8 Comments

I have written on the topic of safety prosecutions before (Do we need to rethink safety prosecutions?, Rethinking safety prosecutions part 2 and Is this really what due diligence was designed for?), and a recent article posted online by the Safety Institute of Australia Ltd (VIC: Company fined $450,000 after teenager dies in forklift rollover) has prompted me to write on the topic again, and ask the safety industry to really question what it expects from health and safety prosecutions, and whether the current system delivers against those expectations.

In brief, the prosecution arose out of a fatality on a farm in Victoria.

The owner of a labour hire company, who was engaged to provide workers to pick snow peas on the farm, bought his 15-year-old son and two friends, aged 16 and 17 to help with the work. The owner left the property and soon after the boys began driving a forklift, which had been left unattended and with keys in the ignition, in an unsafe manner. The driving was described as driving fast around corners, skidding and drifting and not wearing seat belt.

Several hours later the owner’s son was killed driving the forklift when it tipped over.

The boys, who had been left unsupervised, had not been provided with any safety induction or instructions at all, none of them were licensed to drive a forklift and two of them had no prior experience working on a farm.

The farming company was prosecuted for failing to ensure a safe workplace and pleaded guilty. They were fined $450,000

At this point, it is appropriate that I add a little bit of information about myself. I am a lawyer, so I have a vested interest in the prosecution process. I am a farmer’s son and have engaged in exactly the type of activity that led to the fatality – and worse. I have a son, and continually walk a fine line between introducing him to more and more responsibility and keeping him safe. I work in the safety industry and have spent the last 25 years of my working career trying to help organisations improve safety in their workplaces.

I should also say at this point that on the face of the summary of the case, there was an abject failure by a number of parties to properly consider and implement processes to manage health and safety risks in the workplace. A failure which, in my view, required a response.

My question is whether the “prosecution” response does anything for safety.

The legal profession talks about the penalties in legal proceedings in terms of general and specific deterrence. The idea that a penalty is designed to stop the individual or organisation from offending again, as well as sending a message to the broader community about refraining from unlawful conduct.

Even from a narrow, legalistic perspective, it is difficult to see how this type of prosecution is helpful.

While I am sure that a $450,000 fine had a reasonable punitive effect, I am not sure how much of a specific deterrent it was, over and above the death of a 15 year old boy. And I am certain that there are more productive ways to invest $450,000 in safety than injecting it into the Victorian Government coffers.

A $450,000 education campaign? Creating some dedicated “farm safety” inspectors?

Let’s get creative.

If all we want from safety prosecutions is to punish people and organisations who do not meet their legal obligations, then the current approach and increasing fines is probably appropriate.

But every safety conference I attend has regulators and consultants spruiking that we must learn from incidents and the only way to move safety forward is with a “no blame” culture, both of which are completely undermined by a system focused on prosecutions.

The fatality occurred in November 2014. The findings from the Court, the Wangaratta County Court did not emerge until April 2016. There is no written judgement, only press article summaries and media releases from the regulator.

the case is about proving the particulars of the charge. It is not about improving safety or making recommendations to address safety shortfalls.

And what did we learn? That teenage boys should not be left to drive forklifts unsupervised because they might do something silly? That people need to be told about hazards in the workplace? That access to equipment and machinery should be controlled?

Really?

What did we need to learn?

We need to understand why organisations like the farming company and the labour hire company had no systems in place to manage obvious risks.

How is it, that despite all of the regulators and all of the regulation, most organisations do not have anything remotely resembling a reasonable safety management process?

What if, rather than prosecutions, organisations who have had accidents could opt in to a safety learning program. In this case, for example, a detailed investigation and research project to understand all of the factors influencing the incident. Not just the role of the employers and workers, but also the regulator, the way safety information is made available and the best ways to help small and medium sized businesses implement a safety program.

The project would be paid for by the employer – so there is still a financial penalty.
Both the incident and the research could be highly publicised to add to the deterrent value.
Valuable lessons would be available within months, as opposed to meaningless factual statements after years.

Prosecutions can, and should still be reserved for the worst classes of offence but these would be very limited.

This is different from the current enforceable undertakings approach, because it is not designed to respond to the incident per se, but to understand the incident and create wider learnings.

And just a word on regulators – every major accident inquiry in recent times (think, Pike River, Montara, Macondo) has found serious failings in the performance of the regulator in the discharge of their duties.

What, if anything have we learned about the regulation and enforcement of safety in this case?

So, returning to my initial question: What do we it expect from health and safety prosecutions, and does the current system delivers against those expectations?

New guidance material for lifting and related operations

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

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

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

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

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

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

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

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

Comcare v Transpacific Industries

May 29, 2015 ~ My safety thoughts ~ Leave a comment

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

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

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

A short video presentation about the case is available here.

You can access a copy of the case here.

More consultation on safety legislation in Western Australia

November 5, 2014November 5, 2014 ~ My safety thoughts ~ 1 Comment

At some point, someone will make a decision, but hot on the heels of the “Green” WHS Bill seeking comment on WA’s general health and safety legislation, stakeholders are now being asked to comment on options for “modernising” health and safety laws for mining, petroleum and major hazard facilities.

To the extent that it matters, you can find out more here:

http://www.marsdenjacob.com.au/wp-content/uploads/2014/10/Consultation-RIS-Resource-Safety-WebVersion.pdf

and submit comments here:

http://www.marsdenjacob.com.au/structural-reform-resources-safety-legislation-wa/

You have until the 19th of December.

If the history of harmonisation across the country is any measure, there will be a fair amount of administrative juggling within businesses and the usual parade of lawyers and safety consultants telling us that the sky is falling and we are all going to jail (no one ever has in Australia by the way!) – and then we will just get on doing what we are doing today, tomorrow.

Oh, (and again for what it is worth), Safe Work Australia’s own research (Safe Work Australia. (2013). The effectiveness of work health and safety interventions by regulators: A literature review. Canberra, ACT: Safe Work Australia) has found:

We do not know whether many of the strategies used on a regular basis by work health and safety regulators, such as introducing regulations, conducting inspections, imposing penalties for non-compliance and running industry campaigns are effective in achieving the desired policy outcome of reducing work related deaths, injuries and disease.

Seems to me to be a lot of fuss and nonsense for very little return.