Tag: safety

Western Australia’s proposed WHS legislation

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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

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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.

 

 

 

 

 

 

Contractor Safety Management: Waco Kwikform Ltd v Perigo

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A recent NSW Court of Appeal decision has examined the very interesting (and vexed ) issue of how the actions of a Principal can create liability, by taking over responsibility for a Contractor’s safety system of work.

In Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140, the Court found, in part, that by developing a Safety Work Method Statement, Waco had taken primary responsibility for the safe system of work out of the contractor’s hands.

You can see a video presentation about the case by clicking here.

And apologies, but there has been a little bit of a glitch in the sound quality – there is sound but you might need to turn it up.

I also need to let you know that there is a new app available to make watching these video updates easier. You can find it by clicking here.

The app will allow you to watch the presentation, or download it so you can watch it offline later.

Best Regards.

Do we need to rethink safety prosecutions?

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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 4: The Queen v ACR Roofing

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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

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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

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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.

Safety risk and safety data: Exploring management line of sight

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I have recently done a video presentation on a fatality at the Adelaide Desalination plant, which you can find by following this link.

Recently, I was reading some of the transcript of the South Australian Senate Inquiry into the desalination plant (which you can find by following this link), and was struck by one manager’s description of all of the activity undertaken in the name of safety:

We start with the inductions when new staff join the project. So, at 6.30am, usually three times a week—I attend probably two of them; I was in one yesterday—we induct new staff onto the job. The first thing I point out is the list of non-negotiables. The second thing I point out is for each person to look after their mate. It starts there. We then have a standard list of documents. I will read from this list, because it’s quite a large list. There is the HSC risk register, task specific for each job. There is a construction execution plan. There is a JSA, task specific.

We have daily start cards for each area, which is another thing I introduced. I am not sure if we gave you a copy, but it’s a small easily-filled-in card where a work team can assess the risks of adjacent trades, etc. So, that is a specific thing. We have a pre-start meeting every day. There are SafeWork instruction notices posted at each of the work areas. We toolbox the job weekly, because the pace of this job changes. You can go out there in two-day gulps and the whole access can change, so we need to make sure people see that. We have the non-negotiables in place. We have site and work-front specific inductions, which is what I told you about. Again, I attended one yesterday.

I have regular safety walks. I have trained all of my management team and the two layers beneath that to go on safety walks. We have our OHSC risk register. There is a just culture model in place. So, if I need to address an incident and it turns out that this person needs retraining or perhaps needs to be disciplined or work outside the fence somewhere, we use this just culture model for that. We have all been trained in that. There are safety KPIs for management. There is a safety enhancement committee, which is a mixture of workers and staff. I actually chair a weekly safety leadership team, and that’s improving safety over and above. We are looking to refresh it all the time. And so it goes on. I have two pages of this stuff.

Now, there may have been far more information that sat behind all of this activity, but it seemed to me to be a typical approach to safety management – and one that typically gives no insight into whether the risks in the business are actually being managed.

One of my particular areas of interest in the context of safety management is “management obligations”, and more particularly how managers (at all levels) get assurance that the health and safety risks in their business are being effectively managed. It is a concept that I have referred to before and written about (Smith, 2012) as “management line of sight”.

An area of speciality for me is management obligations training; courses that are designed to help managers understand their legal obligations for safety and health, and how their behaviour – what they “do” – contributes to effective safety management.

Over the last 3 or 4 years I have put the following scenario to the various courses:

Who here knows about a risk in their business or area of responsibility that could kill someone?

Invariably, most hands go up.

Who has safety information that comes across their desk on a regular basis.

Again – most hands go up.

OK. What I would like you to do is to think about the risk. Then I want you to think about the data that you have looked at in the past 3 months.

Pause ……

What does that data tell you about how well the risk is being controlled?

And then the lights come on, with the realisation that their organisations spend inordinate amounts of time and resources producing volumes of information that tell them nothing about whether risks in the business are actually being controlled.

This “gap” was most recently highlighted in the Royal Commission into the Pike River Coal Mine Disaster (Pankhurst et.al, 2012), in which 29 men died in an underground coal mine explosion in New Zealand. The Royal Commission noted the following:

The statistical information provided to the board on health and safety comprised mainly [LTI rates]. 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. (My emphasis).

Typically, in a training course discussion there is no meaningful consensus on  what the “crucial systems” are in a business, much less how we prove that they are effective.

What we can say with a high degree of certainty is that traditional measures of safety performance do not prove the effectiveness of crucial systems – certainly LTI and other personal injury rates do not, and we have known that for at least 25 years. However, other indicators are equally poor in creating insight into the control of crucial systems. The number of management site visits do not enlighten us, nor do the number of audit actions that have been closed out, the number of “behavioural observations” don’t help, the number of people trained, the number of corrective actions completed, the number of JHAs or “take 5s” done and on it goes.

These things are all indicators of activity, which are designed to ensure that the safety management systems are effective, but ultimately, they leave us in no better position as far as understanding the effectiveness of crucial systems.

There is another interesting challenge that falls out of exploring management line of sight, and that is, what should I be looking at?

Historically, and as I touched on above, we typically consider safety in the context of harm and risk: what can hurt people and how likely is it that they will be hurt? But line of sight and assurance demands a wider gaze than hazards and risks.

The Royal Commission (2012, volume 2, p. 176) also stated:

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. (my emphasis)

“Crucial Systems” mean more than gas monitoring or ventilation. They are more than the control of physical risks. They incorporate broader organisation systems around hazard identification and risk assessment, contractor safety management, management of change, incident investigation and so on. All elements that are designed to work together so that the “system” as a whole is effective to manage risk.

If organisations are weak insofar as they cannot “prove” that physical risks are being controlled, the reporting, assurance and line of sight to prove that these other “crucial” systems are effective is almost non existent.

When was the last time you received a report “proving the effectiveness” of your incident investigations, for example?

What are the “crucial systems” in your business, and how would you “prove” that they were effective. Food for thought.

References

Pankhurst, G., Bell, S., Henry, D (2012). Royal Commission on the Pike River Coal Mine Tragedy. Wellington, New Zealand

Smith , G. (2012). Management Obligations for Health and Safety. CRC Press, Boca Raton

25 Years on: Remembering Piper Alpha

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In the past few weeks I have been asked to do presentations and share my views about the legacy of Piper Alpha in this, the 25th anniversary year of the disaster.

For me, the positive legacy is the advancement in safety regulation, engineering and “safety in design” that has seen the improvement of the physical safety of high hazard workplaces. Safety in design has also improved the “survivability” of disasters so that when accidents to occur, their consequences are better mitigated.

The ongoing disappointment, however, is the persistent failure of management oversight and assurance to properly understand if health and safety risks are being managed. This is a failure that has played out in every major accident inquiry since Piper Alpha and continues to undermine effective safety management.

You can see a video presentation of these ideas and concepts here.

Fatalities, Insurance and failed paper systems: Hillman v Ferro Con (SA) [2013] SAIRC 22

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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 some attention because Mr Maione was able to call on an insurance policy to pay his penalty – effectively avoiding the punishment of the Court. It has long been thought, in my view correctly, that insurance to pay for effectively criminal penalties is counter to public policy and unlawful and it will be interesting to see if there is any “public policy” response to the decision.

Over and above the insurance aspects of the case, the judgement offers some 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.

You can see a video presentation about the case here.

Also, set out below are links to various references and materials referred to in the discussion if you would like to explore some of the concepts further.

Links to material referred to in the presentation.

Video presentation – case review: Capon v BHP Billiton Iron Ore Charge No. 1917/11

Video presentation – case review: Fry v Keating [2013] WASCA 109

Court judgement: Silent Vector v Shepherd & Anor [2003] WASCA 315

Court judgement: Hillman v Ferro Con (SA) Pty Ltd (in Liquidation) & Anor [2013] SAIRC 22

Article: Borys, D. (2009). Exploring risk-awareness as a cultural approach to safety: Exposing the gap between work as imagined and work as actually performed. Safety Science Monitor, 13(2), Article 3.