Rethinking safety prosecutions part 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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.

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Comcare v Transpacific Industries

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

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.

Western Australia’s proposed WHS legislation

On 23 October 2014 the Western Australian State Government released a draft or “Green” Bill, the Work Health and Safety Bill 2014 (see: https://www.commerce.wa.gov.au/worksafe/work-health-and-safety-bill-2014)

The Work Health and Safety Bill 2014 is Western Australia’s version of harmonised health and safety legislation. The Bill is open for public comment until 30 January 2015, and details on how to submit a comment can be found at https://www.commerce.wa.gov.au/worksafe/work-health-and-safety-bill-2014

You can access a copy of the Bill from the websites above, however, we have also added a copy to Lawstream (www.lawstream.com.au) and access to the Lawstream database it is available for access at no charge. Simply log on at:

www.lawstream.com.au

Username:           Trial User

Password:            LStrial123

When you click on the “login” button you will see two options, “client” and “trial“. Click on “client” to access your account.

Over the next few weeks we will be adding commentary about sections of the proposed Bill in the “mapping” section of the Lawstream database; simple follow the blog for more information about when updates and commentary are added.

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

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.

 

 

 

 

 

 

How safety regulation undermines safety

There is an interesting paradox in safety management, in so much as a lot of what we do in the name of safety and health actively undermines our safety efforts.

This week I was confronted with another, recurring example.

I was speaking at a conference and talking, in part, about the relationship between “safety” risk management and “legal” risk management, and the relationship between them.

After the presentation a manager that I know well and have worked with in the past spoke to me about a a significant problem that he was grappling with. They had recently been prosecuted in relation to a workplace injury. He was not complaining about the prosecution, in so far as the nature of the incident most likely warranted some form of sanction.

What irritated him was that they were prosecuted, essentially, based on evidence drawn from their own, internal, incident investigation.

To make matters worse, some of the charges did not relate to the incident. They did not allege that the safety failures “caused” the incident – they were simple “breaches” of their safety obligations in the broader sense.

As this manager described it, they did not need to identify these “non-causal factors” in the incident investigation. They did it in the spirit of trying to learn and improve, yet to his mind they had been punished for trying to do the right thing.

What this meant, somewhat understandably, was that the approach to incident investigations had changed: Narrowly focussed, only considering objective, immediate causes and not examining safety management more broadly and all investigations are sanitised by lawyers.

A good outcome for safety?

I recall a number of years ago working with an industry group that used to regularly share members’ incident investigations on their web site and at regular forums – again, in the spirit of learning and improving.

Unfortunately, the practice has all but ceased as companies refused to have potentially “harmful” information made public. Those that did make information available had sanitised it to the extent that it was effectively meaningless.

There is also a seemingly common practice among safety regulators, whereby rather than do their job and investigate incidents, they simply require a company to provide them with a copy of their internal investigation. Again, hardly an incentive for an organisation to undertake any meaningful interrogation of their safety management.

When we look back at the harmonisation process in Australia it is clear that it was a terrible opportunity lost to address how we legislate to provide better safety outcomes. Unfortunately, it was only ever intended to provide a better “administrative” outcome.

As Western Australia embarks on a process of “modernising” its safety legislation, perhaps there is an opportunity to genuinely think differently.

For example, as an individual I have a right to protection against self incrimination, so that if an Inspector compels me to give a statement, that statement cannot be used against me in a subsequent prosecution. Why couldn’t that same right be extended to a company’s incident investigation?

Surely, the interests of improving workplace safety and health through a fearless examination of safety management following an incident should take priority over arming regulators with the information that they need to mount a prosecution?