Tag: Nexus Lawyers

Work as it is actually performed: investigating when nothing happens

~ My safety thoughts ~ 1 Comment

There has been some discussions and commentary in various online forums recently looking at the issue of “positive” incident investigations.  Although there seems to be a variety of nuances in the description of positive investigations they focus on “what went right“.

Some of these investigation models have also incorporated a broader management technique of “appreciative enquiry“, which, as I understand it, came to prominence in the late 1980’s (see HERE for examples and information about appreciative enquiry).

The discussion about these frameworks describes the “what went right” philosophy as a positive view of investigations. It is a philosophy that does not focus on blame, but promotes discussion:

The benefit of that approach is that the conversation with witnesses is an entirely positive one. It is not about what could have happened. Not about the doom and gloom narrowly averted. Rather, it is about their heroic act, well designed process or lucky event that allowed us to avoid the adverse outcome. People love talking about positive things particularly if they had something to do with them. (https://www.linkedin.com/pulse/investigate-your-serious-near-misses-positive-way-michael-tooma?trk=prof-post)

 In my view, when organisations are not mature enough to talk about issues in a non-judgmental way, without attribution of blame, the “what went right” enquiry may present a risk.  It may be seen as a contrivance, with the facilitator spending a lot of their time saying things like “remember this is not about blame“.

In “mature” organisations the need to construct a system of enquiry to focus on the positive and avoid discussion of blame is largely redundant because the participants are aligned with and support the goals of the organisation.  Their desire to support the goals of the organisation overrides any petty, personal concerns about individual praise or blame.

If you have ever been privileged enough to work with high-performance sporting teams or elite military forces, you will understand this idea.

A precondition of belonging to these groups is the willingness to say and hear things that support the group’s objectives without personal agendas or taking personal affront.  The newest member of the team has a license to speak frankly about the performance of the most senior, and the most senior is expected to accept that conversation, not in the context of them personally, but in the context of the overall objectives of the team.

The extent to which organisations have to contrive a system whereby participants are corralled by a “what went right” narrative says a lot about the culture of an organisation and the “buy in” that people have to team objectives.

That is not to say that appreciative enquiry or investigating “what went right” does not have a place in organisations, nor that it could be an important building block along the way to developing something like an elite performing team.  But as a word of caution, you should also understand some of the paradoxes involved.

The Safety Paradox supposes that any initiative done in the name of health and safety has the potential to both improve and damage health and safety in a workplace.

Having sat through appreciative enquiry “management brainstorming sessions” and incident investigations there is a strong sense of “flavour of the month” initiative as well as an even stronger sense of avoiding accountability.  An overriding impression of a process delivered without context or explanation – why this and why now?  The end product is a wall of butcher’s paper populated with sweeping motherhood statements and management speak, completely absent any meaningful desire to manage known problems.

The pendulum, it seemed, had swung too far the other way.

Again, that is not to say it is not an idea that should not be explored and applied.  But it needs context.  It needs explanation; it needs skilful facilitation, and it needs, perhaps most importantly, dedicated and meaningful follow-up with implementation.  Otherwise?  Well, we have all been in “those” types of sessions.

Another aspect of the “what went right” investigations is the requirement for something to have occurred.  There needs to be an incident or near miss to trigger the enquiry.

A risk in the “what went right” enquiry (without more) is that it can contribute to the illusion of safety.

The illusion of safety is the gap between safety management as we imagine it in our organisation and what happens in practice.  Incident investigations can be a powerful tool in exposing the illusion of safety because they have the potential to illustrate the disconnect between what we think happens and what is happening.  By just focusing on “what went right“, particularly in near miss incidents, we may fuel the illusion of safety and create a narrative that our systems are working to protect us from these incidents – effectively papering over the cracks in the edifice.

While avoiding blame and promoting open discussion is important, so too is avoiding sugar-coating the situation.  Again, balance, transparency and genuine enquiry ought to be the goal.

I would like to suggest something different – investigating work as it is performed; investigating when nothing happens.

An investigation framework that I find useful uses systems as opposed to causal analysis.

It supposes that organisations have systems and processes in place to prevent certain things from happening and tries to understand:

  1. What should have happened: how should these are systems and processes have been applied in a particular case to prevent the particular thing from happening; and
  2.  What happened: how was the work performed in the particular case.

From there, we identify and try to explain the “gap” between what should have happened and what did happen.

This framework is not concerned with “causation“.  All identified gaps are given equal attention and analysis, regardless of their potential causal relationship with the incident.  They are all important because they all represent a potential systemic weakness in safety management which, given a different factual matrix, could be causal.

The attractiveness of this framework is that it can help you identify systemic weakness when nothing has happened.

A few years ago I was involved in an incident leading to the prosecution of a client following a working at heights incident.  The incident and the various investigations that followed revealed the usual list of suspects:

  •  Training not followed;
  •  Procedures not followed;
  •  Risks not identified;
  •  Lack of supervision;
  •  Documentation not completed properly, and so on.

As part of working with that client, we applied the systems analysis framework to a range of other, similar high-risk work, including:

  •  Examples where the same task had been performed;
  •  Examples of different working at heights tasks; and
  •  Examples of other high-risk work tasks, including lifting operations and confined space entry.

In every case, the work had been performed “successfully“, without incident or near miss.

However, the analysis of the gap between how the work should have been performed and how it was performed demonstrated the same types of “failures” in the way that work was ordinarily performed as when the incident occurred.

In other words, even when work was “successful”, procedures were not followed, risks were not identified as well as they could have been, training was not complied with, documentation was not completed and so on.

The systemic weaknesses were not just present at the time of the incident.  They were characteristic of the way work was performed in the days and months previously.

The incident was not a one-off departure from an otherwise “good” system – it was simply evidence of otherwise broader, systemic failures.

Moreover, this system analysis approach highlighted weaknesses hidden by the traditional safety metrics – injury rates, action items closed out, hazards reported, management site visits, etc. – all of which were “green“.

I have applied this method of review from time to time over the years where I have been able to convince clients of its value.  On every occasion it brings to light the gap between the safety as imagined and safety in practice, lifting the veil on the illusion of safety.

In the Pike River Royal Commission, the Commission carefully examined Pike River’s system of incident investigation to understand if it “worked“.  They reviewed 1083 incident investigations and did a detailed examination of 436 of them.  Managers were subject to examination of their understanding of the investigation process, and ultimately the Commission found that “incidents were never properly investigated“.

You can see an example of the examination of management HERE.

Weakness in incident investigations, amongst other important systems elements, formed the basis of significant criticism of Pike River and its management:

 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 the health and safety management was not taken seriously enough at Pike.

 What do your philosophy and implementation of incident investigations say about you?

Post incident conduct: Is it relevant?

~ My safety thoughts ~ Leave a comment

You can download a PDF version of this update HERE

A recent Victorian decision, Australian Box Recycling , received some attention on health and safety social media sites because of comments about the lack of remorse by the company.

The case involved a workplace fatality, but prior to the prosecution, the company applied to deregister and did not take part in the proceedings. Deregistration was unsuccessful, although the owners of Australian Box Recycling had started a new company doing similar things, and the case against the company proceeded.

The prosecution argued that the actions by Australian Box Recycling showed a lack of remorse for the incident, and the court agreed describing their conduct as “contemptible“, imposing an $800,000 fine:

“Their attempt to wash their hands of their responsibilities by shutting down the company once charges were laid, refusing to take part in court proceedings, and starting up a similar company just nine months after their employee died is utterly contemptible and should be condemned”

The conduct of a company after a workplace accident can have a significant bearing on the outcome of legal proceedings. Very often, the actions taken by a company can be used to argue mitigation and reduce any penalty the Court might otherwise impose.

A notable example is when a company pleads guilty at the earliest opportunity. Although there are no hard and fast rules about the value of an early guilty plea, it is often associated with discounts on penalties of up to 25%.

Other “post-accident” factors include:

  • The steps taken by the company to improve health and safety;
  • The level of support shown for any injured personnel and their families; and
  • The level of remorse shown by an organisation – often evidence by the factors above.

Conduct that evidences a lack of remorse or a lack of cooperation can have significant, adverse consequences for a company.

One case where this played out was the prosecution of Esso Australia Pty Ltd
following the Longford Gas Plant Explosion in 1998.

In the sentencing hearing following prosecution, the Court was very critical of Esso’s ongoing failure to accept responsibility for the accident:

“However, before imposing sentence on Esso it is unfortunately necessary to examine the litigious conduct of Esso in these proceedings. It is necessary both of itself and as an incident of sentencing – remorse and rehabilitation being relevant to that end.

…

Esso and its senior officers have expressed remorse for the tragic loss of life and injury … I have no doubt that that personal remorse is genuine … I acknowledge that genuine remorse. However, personal expressions of remorse need to be translated into reality. In the present case, they have not been. here are three matters which militate against corporate remorse.” [40 – 43]

The factors that mitigated against that remorse were:

  • The litigious treatment of the employees;
  • The conduct of the defence in the trial, which was described as “one of obfuscation – designed not to clarify, but to obscure” [45]; and
  • The “lamentable failure of Esso to accept its responsibility for these tragic events“. [46]

In another example, a company, Ferro Con (SA) Pty Ltd was heavily criticised following a workplace fatality when it relied on an insurance policy:

“In my opinion Mr Maione and Ferro Con have taken positive steps to avoid having to accept most of the legal consequences of their criminal conduct as determined by the course of justice. This has occurred through Mr Maione successfully calling on an insurer to pay his fine .” [78]

“In my opinion Mr Maione’s actions are so contrary to a genuine acceptance of the legal consequences of his criminal offending that they dramatically outweigh the benefits to the justice system of the early guilty plea and statement of remorse. Accordingly it would be entirely inappropriate to grant any reduction of penalty to Mr Maione or Ferro Con in these circumstances .” [81]

But it is not just prosecutions where post incident behaviour by a company and its officer can influence the outcome of a legal process, or lead to criticism.

A striking example comes from the Montara Commission of Inquiry.

The Inquiry was established following the uncontrolled release of hydrocarbons from an offshore drilling platform off the coast of North West Australia in August 2009.

During the Inquiry, one of the key participants. PTTEPAA was heavily criticised for its conduct, to the point that the Inquiry recommended that the Australian Government review PTTEPAA’s licence to operate in Australia:

“The Inquiry considers that the manner in which PTTEPAA approached the National Offshore Petroleum Authority (NOPSA), the NT DoR and the Inquiry itself provides further evidence of the company’s poor governance. PTTEPAA did not seek to properly inform itself as to the circumstances and the causes of the Blowout. The information that it provided to the regulators was consequently incomplete and apt to mislead. Its dealings with this Inquiry followed a similar pattern.

The Inquiry recommends that the Minister for Resources and Energy review PTTEPAA’s licence to operate at the Montara Oilfield. At this juncture the Inquiry has little confidence in PTTEPAA’s capacity to apply principles of sensible oilfield practice ” (page 12)

There is nothing in these cases that should discourage a business from understanding and acting on any legal rights they have following a workplace accident. However, these rights and any legal strategy need to be carefully balanced as part of an overall response.

 

The Safety Paradox and the challenge of health and safety assurance

~ My safety thoughts ~ 14 Comments

I am currently working on a new book on practical health and safety assurance, which I hope to have out by the end of the year, but I recently came across an article published through LinkedIn entitled Six Mistakes H&S Managers Make with Occupational Health & Safety.

I do not want to comment on the article itself, although it is worth a read. It was the following paragraph that caught my attention, and goes to the heart of what I am trying to explore in the context of health and safety assurance.

Habits are what save us when our mind is not consciously on the job. Many of the health and safety systems we use (such as Take-5s, prestart talks, and health and safety observations) are aimed at creating habits in people’s minds so that they are constantly aware of hazards in the work environment, and can react when they see something that is about to hurt them. Each little action and health and safety discussion might not prevent an incident itself, but they all add together to create valuable health and safety habits. Do not think that you are repeating this training or talk for the millionth time and that you are wasting time and money. When the crisis hits it will probably be these repetitive sessions that will prevent great harm or loss.

First, let me explain what I mean by the Safety Paradox. The Safety Paradox is my theory that all health and safety initiatives have within them the potential to both improve and undermine safety, and one of the significant ways that safety initiatives undermine safety is by contributing to the Illusion of Safety.

The Illusion of Safety is characterised by the Gap between the safety system as we imagine it, and the system in practice, and it is often caused by activity: Because we are doing a lot of stuff for safety, it must all be good and positive and lead to a good safety outcome.

We know that not all safety initiatives are always good, and that safety initiatives can undermine safety.

Research into JHAs and other frontline risk assessment tools shows how they can disengage the workforce from the organisation’s health and safety message, but at the same time create an unfounded sense of comfort in management that workers have – and are using – appropriate tools to manage risk (See for example: D. Borys, Exploring risk awareness as a cultural approach to safety: Exposing the gap between work as imagined and work as actually performed).

The Baker Panel Review into the BP Texas City Refinery Explosion referred to “initiative overload”, identifying that many well intentioned safety initiatives may have overloaded refinery personnel to the detriment of safety.

To my mind, the assumption that we are doing something in the name of health and safety, and therefore it must be good and it must be achieving the purpose for which it is intended is one of the foundational building blocks for the Illusion of Safety, and must be challenged.

So, in this case when the author says:

Many of the health and safety systems we use (such as Take-5s, prestart talks, and health and safety observations) are aimed at creating habits in people’s minds so that they are constantly aware of hazards in the work environment, and can react when they see something that is about to hurt them

Health and safety assurance requires us to understand that this outcome, this purpose – creating habits in people’s minds so that they are constantly aware of hazards in the work environment – is actually being achieved. The assumption that the purpose is being achieved flies in the face of the Safety Paradox, contributes to the Illusion of Safety and undermines safety and health in the workplace.

Health and safety assurance requires us to understand the potential negative outcomes of these safety activities. For example, to what extent does the constant requirement to fill out a piece of paper before every job (i.e. a Take – 5) desensitise the workforce to risk, trivialise risk or make the workforce think that management doesn’t trust them? To what extent does the workforce believe that these pre-job processes and signature collections are management’s attempt to, adopting the language of the Borys article above, “cover their arse”?

It is wholly insufficient for the safety industry to say that these safety initiatives are theoretically good processes, but not understand the potential negative outcomes nor to invest the time and energy to understand whether the safety initiatives are achieving their intended purposes.

And when the author goes on to say:

Do not think that you are repeating this training or talk for the millionth time and that you are wasting time and money. When the crisis hits it will probably be these repetitive sessions that will prevent great harm or loss.

surely there must be some onus to understand whether this thing that has been done for the “millionth time” is not having a negative effect? I can think of nothing more damaging for health and safety in the workplace than doing something for the “millionth time” and not knowing if it is achieving its purpose, or more damaging, undermining its intended purpose.

The safety industry must be accountable for its initiatives, and management must hold the safety industry accountable. It is simply unacceptable to continue to pump initiatives and processes into organisations on the theoretical assumption that they are “good” for safety without being able to demonstrate that those initiatives and processes are achieving the purpose which they were designed.

By the way, your injury rate performance is not a measure of whether your health and safety initiatives are achieving the purpose.

 

 

 

Due diligence: understanding performance or measuring activity?

~ My safety thoughts ~ 3 Comments

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

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

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

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

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

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

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

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

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

Is it?

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

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

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

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

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

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

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

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

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

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

What do you know about your safety initiatives?

 

Risky Conversations, The Law, Social Psychology and Risk

~ My safety thoughts ~ 4 Comments

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

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

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

Risky Conversations

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

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

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

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

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

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

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

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

~ My safety thoughts ~ 8 Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

Let’s get creative.

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

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

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

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

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

Really?

What did we need to learn?

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

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

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

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

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

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

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

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

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

Due diligence master class

~ My safety thoughts ~ Leave a comment

On 6 April 2016 I will be facilitating a due diligence masterclass in conjunction with IFAP from 8.00am until 3.00pm at the Esplanade Hotel in Fremantle, Western Australia.

The program is suitable for all industries and size of business.

Drawing on legal precedents and major accident investigations from all around the world, I will consider due diligence in the context of health and safety legislation including harmonised, WHS legislation and “accessorial liability” provisions  in Western Australia, Victoria and the offshore oil and gas industry.

The program will focus on the practical and legal expectations on mangers to control health and safety risks in their business, and what day-to-day application of those principles might look like.

Places are limited and the program is already 50% subscribed.

You can access information about the program here, book here, or contact me – gws@nexuslawyers.com.au if you would like to know more.

Is this really what due diligence was designed for?

~ My safety thoughts ~ 3 Comments

On 24 February 2016 findings were handed down in the prosecution of another company officer under the due diligence provisions of the WHS legislation.

In WorkCover Authority of NSW (Inspector Moore) E&T Bricklaying Pty Ltd [2015] NSWDC 369, Mr Kose, a company officer and on site representative of E&T Bricklaying was prosecuted for failing to exercise due diligence in breach of the New South Wales WHS Act.

It is not clear in what “capacity” Mr Kose was a company officer, whether he was a director, CEO or performed some other role. It also seems implicit in the judgement that Mr Kose was involved in the day-to-day work. At paragraph 10, the judgement states:

There were five personnel involved in the laying of the blocks. They were Mr Kose, Mr Rahimi …..

There is nothing particularly instructive about the case, and it certainly does not add anything to the body of knowledge about who is or is not a “company officer”. However, the case does raise an interesting question about whether these were the sorts of cases that changes under WHS legislation to create positive obligations of due diligence on company offices were designed to address.

It appears clear that in whatever capacity Mr Kose was acting, he was a hands-on company officer involved in the day-to-day operations of the business. A typical, small business working director.

Safety and health legislation around Australia has always had provisions enabling the prosecution, and the reasonably easy prosecution, of people in that position. In his excellent paper Personal Liability of Company Offices for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), Neil Foster points out that the vast majority of prosecutions against directors and managers involved officers who were directly involved in making specific decisions that led to the injury or fatality, and that the majority of companies whose offices were prosecuted were small (page 114).

This pattern seems to be repeating itself given the short history of due diligence prosecutions to date, and that despite all of the hoopla and razzmatazz attached to WHS legislation, in practical terms absolutely nothing has changed.

To the extent that due diligence provisions make it easier to prosecute company offices and increases the penalties against them, those provisions  continue to be used against hands-on, working directors in small businesses. Senior executives and boards of large organisations who are not involved in the day-to-day operations of their businesses have nothing personal to fear from health and safety prosecutions.

I am not sure that was the point of the changes to WHS legislation, and it is certainly not what was sold – and continues to be sold – by the safety industry.

 

 

Rethinking safety prosecutions part 2

~ My safety thoughts ~ 7 Comments

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.