New requirements for Road Transport safety

On 17 December 2013 the Road Safety Remuneration Tribunal handed down its first Order, which will have health and safety implications for businesses involved in, or engage truck drivers.

Orders of the Road Safety Remuneration Tribunal have the same practical effect as legislation, and there is the potential for substantial penalties if the requirements are not complied with.

In broad terms, the Order applies to Road Transport Drivers, and imposes requirements on employers, “hirers” and “participants in the supply chain“. If you employ truck drivers, or engage/contract them to deliver things to your business or move your product, then you should consider the application of the Order.

An important health and safety requirement is the need to develop a “safe driving plan” in relation to “long distance” operations (basically where the distance travelled exceeds 500 kilometres).  The plans also require that a “participant in the supply chain” witness the commencement and conclusion time of each pick up by signing the safe driving plan. Relevantly, a “participant” is:

a consignor or consignee, intermediary or operator of premises for loading and unloading.

The Order also specifies training requirements as well as the requirements for documented drug and alcohol policies covering road transport drivers. These requirements apply to both employers and hirers.

The orders take effect from 1 May 2014.

You can access a PDF version of the Order here. You can also review a copy of the Order in Lawstream:

www.lawstream.com.au

Username: Remuneration

Password: password

(Username and password are case sensitive)

For more information about using Lawstream to track and manage your legal and other compliance obligations just email me, gsmith@stegroup.com.au.

Paper Based Safety Systems in a Contract Environment

Two recent cases have highlighted the focus that is put on documented safety systems following a serious workplace incident. The cases have also shown that despite the mountains of paperwork deployed in the name of safety, organisations still struggle to understand if health and safety risks are being controlled.

The cases are also instructive because they both arose in the context of contractor safety management.

The first case, Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22, examined the perils of contractors creating safety management systems to meet the requirements of the client, rather than the risks of their work.

On 16 July 2010 a fatality occurred during lifting operations at the Adelaide desalination water plant. A rigger employed by Ferro Con (SA) Pty Ltd was killed when he was struck on the head by a 1.8 tonne steel beam.

The Company, Ferro Con, and its Director, Paolo Maione were prosecuted under South Australian health and safety legislation, and in June 2013 were handed fines of over $200,000.

The case has attracted a lot of attention because Mr Maione was able to call on an insurance policy to pay his penalty – effectively avoiding the punishment of the Court. However, the judgement also offers good insights into the weaknesses of “paper based” safety management systems, a compliance mentality and lack of assurance. The judgement also explores some issues in the Principal/Contractor relationship.

It seemed clear from the case that the “safety system”, such as it was, was designed to meet the need of the client, not manage the risk associated with the work:

No detailed JSA’s for different types of lifts, or lift plans, were required by Adelaide Aqua. Ferro Con took its cue for the level of safety planning it would use in its work from Adelaide Aqua, and not from the foreseeable hazards of its work activities. Ferro Con was more focussed on complying with contractual requirements than taking all reasonably practicable steps to minimise the foreseeable hazards its business created.

The inappropriate nature of safety documents in a contracting relationship was also looked at in Nash v Eastern Star Gas Ltd [2013] NSWIRComm 75, only this time, from a Principal’s perspective.

In August 2009, Bruce Austin a working director of a small business, The Saver Guys, died from head injuries after he was hit by a length of pipe that was being extracted from the ground.

There were many different entities involved in the contractual arrangements, and a number of parties were prosecuted. This case, however, looked at the safety arrangements in place between Eastern Star Gas Ltd (ESG) and Austerberry Directional Drilling Services Pty Ltd (ADD).

The case provides some useful insights into the expectations placed on businesses removed from the conduct of the physical work by a contractor. It also demonstrates how an organisations’ own, documented safety management systems (in this case a contractor safety management system) can be used to show that the organisation is not meeting its obligations.

The general “failure” in this case was that:

ADD did not have a documented safe work procedure or method (SWP) for the Activity and no job safety analysis or risk assessment for the Activity was conducted by ADD

However, the criticism of ESG, the defendant in the case, related to both ADD’s system, and ESG’s own system and conduct. The Court noted:

  • ADD OHS documents, including 42 SWPs, were from another job.
  • ESG did not require any documents specific to the job it was doing.
  • ESG did not check if the safety documents were appropriate.
  • No inquiries were made by ESG to check if the safety documents addressed the activities on this job.

The Court also noted that ESG operated in breach of its own contractor safety management system, for example:

  • ESG’s contract representative did not ensure the work was subject to Hazard identification and risk assessment, including that a safe work procedure approved and JSAs were done.
  • There was a requirement to assess contractor performance, but there was no program for that assessment, and no assessment was in fact done.

These were not things that the Court thought were a good idea – these were requirements set out in ESG’s own system.

The Court found that the:

… defendant had, in its paper systems, a roll (sic) for auditing and for checking. However, what it did not do was to comply with its own systems and that included a failure to carry out any checking of safety issues at the site.  If documented safety systems are not complied with, then that failure creates a significantly legal risk. More importantly, however, if the documented safety systems represents what should be done to create a safe workplace, non-compliance far from being a legal risk, means that our workplaces are not safe.

If documented safety systems are not complied with, then that failure creates a significantly legal risk. More importantly, however, if the documented safety systems represents what should be done to create a safe workplace, non-compliance far from being a legal risk, means that our workplaces are not safe.

Do we need to rethink safety prosecutions?

I have seen a number of recent posts and comments on various sites, noting where company executives have been prosecuted and jailed for health and safety breaches. The general tone of the observations has been that this is an approach that should be adopted in Australia, and that the relevant authorities should be far more active in pursuing these types of prosecutions.

Set out below is an article that I did for IFAP in Western Australia. It appears in the December issue of SafetyWA.

The article suggests that there might be more to a prosecution approach than meets the eye, and perhaps even an argument that safety prosecutions could undermine the end goal of trying to achieve “safe” workplaces.

I am not trying to suggest a “correct” approach, but like so much that we do in safety, we should not just assume that a prosecution approach is right. Perhaps it is time for the genuine debate and critical thinking that was missed during the harmonization process.

The value of safety prosecutions in Western Australia

Criminal prosecutions for safety and health breaches are generally regarded as an important element of effective regulation of safety and health behaviour. Part of that is the commonly accepted belief that the higher the penalties for health and safety breach, the more effective the deterrent effect of prosecution is likely to be.

I, for one, am not entirely convinced that prosecutions are in fact an effective measure for improved safety performance (ironic from a lawyer, I know).

Some studies have suggested that criminalising safety breaches can have an adverse effect on safety (See for example, International Journal of Applied Aviation Studies, Volume 10, Number 1, 2010, page 31 on).

Australian studies have shown that the vast majority of prosecutions of “Company Officers”, have been of small businesses – directors who are “hands on” in the business (see for example Foster, N. (2005) Personal Liability of Company officers for Corporate Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW). 18 Australian Journal of Labour Law, 107). This obviously calls into question the equity of offences aimed at Company Officers.

Anecdotally, my own experience is that the response of many organisations to increased legal liability for safety and health breaches is not improved safety risk management, but improved legal risk management. Just witness the harmonisation debate over the last 5 years – a debate that has been lead almost entirely by legal commentators, not the safety profession.

The psychology here is also interesting.

A number of years ago, while working as principal safety advisor at Woodside Energy, some people far cleverer than me in the area of safety culture advised that to change human behaviour, the best strategies were to ensure that consequences for individuals were:

  • Certain;
  • Immediate; and
  • Positive.

If people always got immediate, positive feedback whenever they did the right thing for safety, then this would drive the right behaviour.

The least effective way to drive change? Consequences that are uncertain, delayed and negative (think safety prosecutions!)

Leaving aside for one moment broader philosophies about safety prosecution in general, what value do they provide to the understanding of safety management

In October 2013, BHP Billiton Iron Ore and HWE Newman Services were convicted and ordered to pay a total of $363,000 in safety fines and costs, after a mobile maintenance supervisor was killed while working on the tyre of a heavy earth mover in Western Australia.

The worker was fatally struck by a tyre handler device, which sprung off the tyre when it was overinflated.

The incident occurred in August 2008

There is a well-worn saying that justice delayed is justice denied. Similarly, safety lessons delayed are safety lessons lost, and in this case the lessons learned are not available to us until 5 years after the event? Except that they aren’t.

The prosecution occurred in the Magistrate’s court, and decisions are not freely available or published. There is no published judgement that we can look to, to understand the safety management failures behind the event. It seems that the sum total of information that might have generated valuable insights into important safety management failures around risk management, contractor safety management or other critical safety management elements is – zero

I have been involved in safety law and safety management for the best part of 24 years. There are some things I know, and an enormous number of things that I do not know. But one thing that I do know to an absolute certainty is that organisations do not examine their safety management systems with anywhere near the level of rigour that they are subject to in legal proceedings. For all its faults, the legal process has the potential to offer some genuine insights into the failure of safety management, but clearly, that potential cannot be realised where cases take years to finalise, and there is no record of the findings to review.

Perhaps it is time to re-examine the role of prosecution and inquiry in safety management and to think differently about what the response to safety failures ought to be. Certainly, the current approach cannot be blindly accepted as adding value.

Contractor safety management series Part 5: KCGM v Hanekom

Hi again everyone. Apologies for the break in posting over the last month, but all is explained in the video presentation below.

Today I  am looking at another case in our contractor safety management series.

KCGM v Hanekom involved a fatality on a mine site, and looks at the very interesting question of the extent of a Principal’s obligations when they impose safety obligations on a contractor. There is also the vexing question of what “liability” does a principal take on when they “approve” a contractor’s systems?

The upshot of the case is, I think, that If we impose health and safety obligations on our contractors we are responsible for:

  1. The “quality” of those obligations;
  2. Ensuring that those obligations are complied with

You can access a video presentation about the case here.

Lead indicators: Reinforcing the illusion of safety

One of my biggest gripes about safety management over the past 20 plus years is the lemming like fascination with “indicators“.

Notoriously, major inquiries around the globe have found that when organisations focus on “lag” indicators (typically personal injury rates) they miss, or become blinded to, more significant risks and catastrophic events often result.

Most recently, this was succinctly articulated by the Pike River Royal Commission which stated:

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 long feared, and it appears that we are heading down the same path under the guise of “lead” indicators. A recent study described in the Queensland Government’s eSafe newsletter found serious shortcomings in using traditional lag indicators for measuring safety.

Nothing suspiring there!

Apparently, the study went on to note a range of leading indicators that helped to deliver good personal injury performance. These indicators included fairly common place practices such as:

  • subcontractors being selected based (in part) on safety criteria.
  • subcontractors submitting approve, site-specific safety programs.
  • the percentage of toolbox meetings attended by supervisors and managers.
  • the percentage of planning meetings attended by jobsite supervisors and managers.
  • the percentage of negative test results on random drug tests.
  • the percentage of safety compliance on jobsite safety audits (inspections).

And so on.

I am not saying that any of these indicators are not good safety practices. They are. They should be measured as a measure of good safety practice – but they are not a measure of a safe workplace. They are not an indicator of risks being controlled.

The problem with any general “indicator” approach, lead or lag, is it does not actually give us any insight into whether the risks in the business are being controlled. It simply perpetuates the illusion of safety.

In other words, I have a bunch of indicators. The indicators are being met. Therefore, the risks in my business are being controlled.

Nonsense.

Think of a potential fatal risk in your business. Take confined spaces as an example.

What do any of the indicators described above tell you about whether that risk is being controlled? Typically nothing.

What are the crucial systems in your business?

How do you prove that they are effective?

Contractor safety management series Part 4: The Queen v ACR Roofing

The Queen v ACR Roofing involved a fatality at a construction site, when a worker was electrocuted after a crane contacted overhead power lines. The worker was employed by a sub-contractor engaged by a 3rd party, and did not have any contractual relationship with ACR, the company that was prosecuted.

The case explores a number of interesting concepts, including whether a sub-contractor can be “engaged” when there is no contractual relationship. The case also explores the ongoing issue of “control” in a contracting relationship, and considers what role the relative “expertise” of the parties has in determining who has control.

You can access a video presentation about the case here.

Contractor safety management series Part 3: Nicholson v Pymble No 1

Nicholson v Pymble No 1 (Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) is not strictly speaking a contractor safety management case. However, it does involve a contracting relationship, but more importantly, it builds on the issues of “control” that we looked at in the last presentations.

Pymble had engaged a contractor to carry out construction work at the premises, and there were a number of allegations that the construction site was unsafe. Mr Molinara was a director of Pymble and lived in South Australia.

Pymble and Molinara were effectively charged on the basis that they were both (relevantly) “persons” with control of a premises being used by people as a place of work, and they failed to ensure that the premises were safe and without risk to health.

The case turned on whether Pymble and/or Molinara had relevant control.

You can see a short video presentation about the case here.

Contractor safety management series Part 2: Stratton V Van Driel Limited

Stratton v Van Driel Limited is the second case in our contractor safety management series.

It is a somewhat older decision, having been handed down in 1998, but useful in that it looks at a narrow issue that is very important in the context of contractor safety management: Control.

In 1995 Mr Baum, a roof plumber was seriously injured when he fell down a ladder. Mr Baum was employed by Signal & Hobbs, who in turn had been engaged by Van Driel Limited, to do work on the new Dandenong Club in Dandenong, Victoria.

The essence of the charges against Van Driel was that it had not done everything Reasonably Practicable to provide a safe system of work, in that it had not managed the risks associated with working on the roof.

Van Driel defended the charges on the basis that they did not have relevant control over the way an independent contractor did their work.

You can access the video presentation of the case here.

Conactor safety managment series Part 1: Nash v Eastern Star Gas

In August 2009, Bruce Austin a working director of a small business, The Saver Guys, died from head injuries after he was hit by a length of pipe that was being extracted from the ground.

Mr Austin’s business had been contracted by another entity, Applied Soil Technology Pty Ltd. The relevant work was being overseen by Austerberry Directional Drilling Services Pty Ltd, who had in turn been engaged by Eastern Energy Australia Ltd on behalf of a related corporation, Eastern Star Gas Ltd.

At the time of the accident, Mr Austin and others were trying to recover a blocked pipeline from under the ground.

Although a number of entities were prosecuted and convicted in relation to the fatality, this case looked at the safety management arrangements in place between Eastern Star Gas and Austerberry Directional Drilling. The case provides some useful insights into the expectations placed on businesses removed to an extent from the conduct of the physical work by a contractor. It also demonstrates how an organisations’ own, documented safety management systems (in this case a contractor safety management system) can be used to demonstrate that the organisation is not meeting its obligations.

You can access a copy of the decision here, and the video presentation here.

References in the Presentation:

Hillman v Ferro Con (SA)

Delphic motherhood statements part 2 – safety documents that nobody can understand

A little while ago I did a post looking at the complexity of documented safety management systems, and the role that documentation has played in undermining effective safety management. You can review the post here.

I was recently sent an article (you can access it here) which underscores the potential negative impact safety documentation has on safety performance.

The New Zealand research found that:

  • Two thirds of employees did not fully understand information contained in health and safety documents , including safety procedures;
  • 80% of employees were not able to accurately complete hazard report forms; and
  • Safety documents were highly complex and used vocabulary that employees did not understand.

A fascinating aspect of the research is that it provides a list of words that were unfamiliar and confused employees. Some of those words included “significant hazards” , “competence”, “accountabilities” and “not adversely affect”. All words that reflect the requirements of legislation and guidance material but have little place in the day to day comprehension of workers.

From my own perspective, I have to say that this research is entirely consistent with my study of major accident events going back 30 years. Every major accident events enquiry that I have ever researched has identified that in some way the documented safety management systems undermine effective safety performance. Typically they are too complex for the people who have to implement them to understand.

Based on my experience I would add two further phrases to the list of unfamiliar words: ” reasonably practicable” and “root cause”. These two phrases are ubiquitous throughout safety management documents in Australia, yet universally whenever I am conducting obligations or investigation training there is no common (much less “correct”) understanding of what these things mean.

There are two things that I find professionally embarrassing as a person who has spent the last two decades specialising in safety and health management . The first is our continued reliance on lost time injury data as a measure of safety performance in light of the overwhelming evidence that they add no value to our understanding of the management of risk.

The second is , despite at least 30 years of “reminders” that out documented safety processes add little to the management of safety risks, almost universally we continue to do the same thing, in the same way but somehow expect a different. I think Einstein had something to say about that.

I have recently been working with a senior executive in an organisation who confronted a safety consultant with the following:

“if you can’t explain it to me easily, then you don’t understand it yourself “

An interesting test to apply to our safety documents?