Tag: safety

Transpacific Industries: Disciplinary action as a safety control

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This is a case I have looked at before, and often use in management training to help explain the concept of reasonably practicable, and the relationship between reasonably practicable and the hierarchy of controls.

I was prompted to post it following the release of Safe Work Australia’s guidance material on reasonably practicable.

The case involved the prosecution of Transpacific Industries following a fatality in 2009. In an earlier, almost identical  incident, Transpacific had responded to a breach of its procedures with what the Court described as “robust disciplinary action“. When the repeat incident occurred in 2009 the question that was argued was whether the earlier disciplinary action was a “sufficient response“: Was it reasonably practicable? You can access the video discussion of the case here, and a copy of the case here.

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Regards.

Greg Smith

Unfair dismissal, delphic motherhood statements and other observations on safety documentation

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Delphic adj. ambiguous, enigmatic, obscure. Also Delphian [L Delphicius, from Gk Delphikos of Delpji (the ancient city in central Greece, famed for its oracle of Apollo, which was noted for giving ambiguous answers.) (The Macquarie Dictionary)

Let me apologise for the somewhat ‘delphic’ nature of the title for this blog, but it is an accurate description of a recent case and other findings, which has led to the observation on safety documentation. Although I might say less of an observation and more an update on, or restatement of, a long running concern that I have had about how safety documentation continues to actively undermine our efforts to create safer workplaces.

First are the recent unfair dismissal proceedings in Paul McGrath and Maitland Hayward v Sydney Water Corporation t/as Sydney Water [2013] FWC 793.

The case involved two workers who had their employment terminated after apparently breaching their company’s ‘lock out/tag out’ (LOTO) procedures. In the end, the termination was overturned and they were reinstated to their original positions. A number of the reasons for the decision turned on matters particular to Australian unfair dismissal laws, and included things such as:

• The long period of service of the two workers.

• The long and unblemished safety records of the two workers.

• The workers’ age and work history.

• The impact of the termination on the workers.

• The workers’ remorse.

However, the quality of the LOTO procedure was also a factor. The tribunal dealing with the claim noted:

• The LOTO procedure did not expressly detail the steps required to be taken to isolate power sources.

• The LOTO procedure requires formal training every two years, which did not occur.

The tribunal noted that there was “some attraction” in a submission that Sydney Water was itself in breach of its own policy.

• Evidence of experienced electricians was that the LOTO procedure was, at best, unclear, and at worst, confusing.

The tribunal noted that Sydney Water seemed to acknowledge this problem by undertaking extensive retraining of its employees on the procedure, because employees were concerned that they could also be subject to disciplinary action for a breach of the procedure.

The issue of the quality of safety documents in a safety context was also explored in the Royal Commission into the Pike River Coal disaster. The Commission noted in that case:

By November 2010 there were over 398 documents in the electronic system. Of these 227 were in draft as they were not signed off by two managers, although they were still used in the meantime. The number, and length, of the documents posed a challenge to the credibility of the system.

Although many of the documents were helpful, there were problems, not only with the sheer volume of material, but also with some of its content. For example, in 2010 two consultants and a Pike manager assessed the ventilation management plan and concluded it needed a complete review. (Volume 1, page 73)

Unfortunately, there is nothing surprising in this. The quality of safety documentation has been implicated in most major disasters for the past 25 years. And again, unfortunately, the response of the safety profession (and others) seems to be to keep doing the same thing and expect a different result. A few examples should suffice to make the point:

Longford Royal Commission: Fire and explosion at Esso’s gas plant in Longford, Australia. Two fatalities.

Esso’s [safety management system], together with all the supporting manuals, comprised a complex management system. It was repetitive, circular, and contained unnecessary cross referencing. Much of his language was impenetrable. These characteristics made this system difficult to comprehend both by management and buy operations personnel. (Page 200)

Montara Commission of Inquiry: Uncontrolled release of hydrocarbons off the north-west coast of Australia on 21 August 2009. No fatalities.

A number of aspects of PTTEPAA’s Well Construction Standards were at best ambiguous and open to different interpretations. The fact that a number of PTTEPAA employees and contractors interpreted aspects of the Well Construction Standards differently illustrates the ambiguity and inappropriateness of the Well Construction Standards. (Page 9)

The Deepwater Horizon: Fire, explosion and uncontrolled release of hydrocarbons in the Gulf of Mexico in April 2010. 11 fatalities.

If you look at the [Transocean’s safety] manual, you’re really impressed by it. It’s a safety expert’s dream. Everything anybody could ever imagine is in there. …because as one looks at it, everything under the sun is covered. It’s hard to see at a particular place somebody saying symptoms of that or this. If you see that, do this. This is not said by way of criticism. People have tried like hell in this manual to get it right. But it may be that when time is short, there might have been different ways to make clear exactly what should have been done in a short period of time. (Page 168-169)

I do not have any firm evidence about why this continues to be a problem, but I do have a number of observations based on my experiences over the past couple of decades.

Some of the issues appear to be systemic, for example, it does not seem to me that many health and safety professionals receive training in writing quasi-legal documents – which is ultimately, what safety management documentation is.

Another issue is the continuous “layering” of the safety documentation. This is often evident after an incident where the automatic response appears to be to amend or write a new procedure. More often than not, this is done without actually understanding why the initial procedure failed. Over time, this builds a volume of safety documentation incapable of being implemented.

However, the biggest concern I have observed in the last three or four years in particular is the ubiquitous “thumb drive” or USB stick. More and more we are observing safety documentation that has not been developed for a business or a particular risk, but rather has been cut and paste from some other organisation with no real regard for its application.

When you consider the quality of safety documentation in a general sense, it is not unreasonable to conclude that nobody is really reading these documents with any care or attention. I find it extraordinary how often I have to deal with safety management plans and other documents that contain the name of a totally unrelated company. Clearly the document is nothing more than a cut and paste from some other plan, but has been signed off by four, five or move different managers – yet even something as basic as the wrong company in the documentation is not being picked up. If the people responsible for developing and approving these documents were not reading them, why on earth would we expect the workforce to?

OK. So what does this have to do with the oracle of Apollo? It is taken from the Montara Commission of Inquiry:

The Inquiry also considers that (i) the Hazard Identification (HAZID) workshops which were conducted between PTTEPAA and Atlas to identify and manage risks at Montara; and (ii) the Safety Case Revisions/SIMOPS Plans which were produced by both entities, were pitched at far too great a level of generality. For instance, the workshops and documents did not deal in any specific way with management of barriers. Moreover, the SIMOPS documents were replete with delphic ‘motherhood’ statements, such as the following:

Safety management in the field is primarily the responsibility of the Vessel Masters/Superintendents, FPSO OIM, Rig OIM and WHP Person In Charge (PIC). The prioritisation of all activities in the Montara field is the responsibility of the PTTEPAA Project Manager. However, control of the individual activities during the field development remains with the relevant supervisors.

…

All parties in the Montara field development shall have clear structuring of HSE interfaces to ensure that there is no confusion as to: approval authority; roles and responsibilities of personnel; organisational structures, management of HSE; operating procedures; reporting structures; and SIMOPS. (page 135)

In the end, if our safety documentation does not provide good guidance about how the health and safety risks in the business are to be managed, what value does it add? And if it cannot be understood by the people expected to implement it, if it creates ambiguity and confusion, it is not overly pessimistic to think that it could be undermining our efforts to create safer workplaces.

Directors conviction in relation to workplace fatality upheld

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On 23 April 2013 , the Western Australian Supreme Court confirmed the conviction and increased the penalties of two Company directors charged in relation to a workplace fatality.  The charges against the Directors aleged “neglect” undr section 55(1) of the Occupational Safety & Health Act 1984 (WA).

You can access a copy of the case at the following link:

Fry v Keating [2013] WASCA 109

or see a short presentation about the case here.

What should your health and safety manager know?

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In November 2012, the Pike River Royal Commission[1] (Commission) published its report into the underground coalmine explosion in New Zealand in which 29 the miners were killed.

The Commission made some very clear and unambiguous observations about the sort of information that senior executive management, up to and including the board, should receive about health and safety.  The Commission (2012, volume 2, p. 53) stated:

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).

I do not know how long the safety profession has understood that statistical information about injury rates provides no meaningful insight into the effectiveness of safety management systems, yet it persists as a fundamental measure of performance.

What major accident inquiries of the past 25 years, and the Commission make clear, is that effective health and safety management requires more.

However, I think that there is a legitimate question mark over the health and safety profession’s capacity to deliver truly effective health and safety management.

I have been doing a lot of executive level assurance work lately: Working with senior managers and boards to help give them insight into whether or not the health and safety management system is operating effectively. Often, the starting point for this work is to sit down with the most senior health and safety manager of the organisation and asked the question:

What are the key things that I should be concerned about, and how do we know that they are being properly managed?

More often than not, the senior health and safety manager cannot answer those questions and they are often very reluctant to give an opinion about whether or not the safety management system is operating effectively. In a number of cases, the health and safety manager believes that it is not their job to know if the health and safety management system is working effectively – that is the job of line management.

For what it is worth, in my view this is a complete misinterpretation of the notion of line management responsibility, and a complete abrogation of the obligations of a health and safety professional.

I believe that health and safety professionals are responsible for building a system that is effective to control the health and safety risks in a business. It is not the job of the health and safety professionals to ensure that that system is implemented; that is the responsibility of line management. However, it must be the obligations of the health and safety professionals to know whether that system is effectively implemented and to be able to advise the organisation one way or the other.

The 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.

Typically, the senior executives in the organisations that I work with have never received a report or a presentation from anyone that gives them assurance that critical health and safety system elements are working. True, they have never asked for it but they did not know they needed to and nobody has ever told them otherwise.

They are not given advice that elements like incident investigation, hazard identification, risk assessment and so on are actually being implemented in accordance with the requirements of the documented system and are operating effectively (or not) to control the risks that they were designed to control.

The fundamentals of safety management have not changed:

  • Do you know what the hazards in your business are?
  • Do you know the risks that arise from those hazards?
  • Have you developed controls to manage those risks?
  • Are the controls implemented and effective?

What we cannot hide from, is that effective safety management and governance requires that we provide honest and accurate information to the most senior levels of an organisation about the crucial safety system elements and critical risks in our business – whether those elements are effective, and those risks are controlled.

Currently, it appears that as a “profession”, we do not, and we may not even be equipped to.

As a health and safety professional, ask yourself:

  • What information does your board get?
  • Is health and safety taken seriously enough in your organisation?

And most importantly, how do you know that the safety management system is operating effectively and the risks in your business are being controlled?

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

Does safety culture undermine safety?

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Like all safety initiatives “safety culture” has within it the capacity to be both an enabler and “underminer” of safety management and good safety performance. It seems to me that more and more of the initiatives undertaken in the name of safety culture far from enabling our safety objectives are actively undermining them.

It is perhaps worth starting the discussion with some definition of safety culture. Interestingly, it is a term bandied around in safety circles quite freely but without much evidence that everybody is talking about the same thing. For this discussion I will use the term safety culture in the context described by Hopkins (2005, p. 11), that is a “culture of safety” or an organisation that is focused on safety.

In this context, not all organisations have a safety culture; it is a conscious decision and something that you strive for.

This can be distinguished from “safety climate“. All organisations have a safety climate, and the safety climate may be weak or strong, good or bad and so on.

If we go back to the source, the term safety culture was first used in the International Nuclear Safety Advisory Group’s (1986) Summary Report on the Post-Accident Review Meeting on the Chernobyl Accident. There, safety culture was described as:

“That assembly of characteristics and attitudes in organizations and individuals which establishes that, as an overriding priority, nuclear plant safety issues receive the attention warranted by their significance.”

This is at the heart of what Lord Cullen (1990, p. 300) described in his inquiry into the Piper Alpha disaster:

“it is essential to create a corporate atmosphere or culture in which safety is understood to be and is accepted as, the number one priority”

Most recently, this notion of safety culture is implicit in the Royal Commission into the Pike River Coal Mine Disaster in New Zealand (Pankhurst et.al, 2012, Volume 2, p. 176):

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.

It does seem however, that when many organisations talk about safety culture, in fact they are talking about safety climate, and whether the “environment” of the organisation is conducive to good safety performance.

What I have observed over the past 20 or so years is that initiatives bundled under the heading safety culture do not contribute to safety receiving the attention it warrants by its significance. Rather, they often divert attention away from giving sufficient attention to safety and in many cases are excuses for not paying proper attention to serious health and safety risks.

Over and above this, the “window dressing” that often masquerades as safety culture contributes significantly to the “illusion of safety” (see for example Borys, 2009), creating an impression that health and safety risks are being controlled, when in fact there is no evidence to support that. Executive management see significant time and resources committed to initiatives branded as “safety culture”, and they see shifts in perception surveys which are somehow interpreted as indicators of safety culture, and more dishonestly as indicators of good safety performance.

This, unsurprisingly, creates the impression that safety is being effectively managed. The reality is seldom the case, with no effective assurance that the health and safety risks in the business are actually being controlled.

Unfortunately, like many safety concept, safety culture has:

  1. Become commercialised, as something that organisations have to purchase;
  2. Become commoditised, as a product that organisations can buy off the shelf;
  3. Been perceived as a silver bullet for all of our safety concerns. This is particularly apparent in the safety profession where the use of the term safety culture to describe underlying problems in safety management has become ubiquitous to the point of being embarrassing.

In the result, I have increasingly seen organisations, led by their safety managers, blindly pursuing the holy grail of safety culture (with no clear picture of what it even looks like) while significant health and safety risk remain unchecked.

Some key themes that I have seen emerge in the pursuit of safety culture are:

Safety culture as a product of perception surveys: The relentless pursuit of perception surveys in no way represents safety culture, nor does it represent an organisation giving safety the serious attention that it deserves.

The difficulty that I have with perception surveys as a measure of safety culture is that they provide no insight into whether or not risks are being controlled – they are after all no more than perceptions. Yet, somehow they are sold as an indication of a good safety culture and then, by some extraordinary leap of logic, proof of an effective safety management system.

They are neither. At best, they may give an insight into an organisation’s safety climate.

Perceptions can change (and can be changed) but this does not mean that the organisation is doing anything differently; it does not mean that the organisation has a culture focussed on safety, and it in no way means that an organisation’s health and safety risks are being controlled.

I am reminded of a lesson that I was taught by a very wise academic about 6 years ago. At the time, I was teaching a University program on accident prevention and had got my first report from my students on the amount of “feedback” I had provided to them during the semester. To my surprise, I had been marked very low in this area.

My friend asked me what I wrote to students when I sent back their papers, and I showed her. It was generally something like:

Please find attached a copy of your paper marked up with my comments ……

Her suggestion? Change it to:

Please find attached a copy of your paper marked up with my comments and feedback……

I did. Nothing else changed but my “rating” for providing feedback moved to over 90% approval.

The power of perception over action.

Glorified behavioural based safety programs as safety culture: The majority of programs that I have seen in the past that purport to be safety culture programs are nothing more than trumped up behavioural based safety programs. Whatever your view on the efficacy of these programs or their place in a good safety management program (and in my view they do have one), they do not represent safety culture.

One of the clearest indicators that these programs have nothing to do with safety culture is that they are directed almost exclusively at the workforce. Very seldom are middle management involved, much less senior management or executive management – and not a board member to be seen. To borrow from Carolyn Merritt[1]:

Thus when we talk about safety culture, we are talking first and foremost about how managerial decisions are made…

When these programs are described as something that they are not (safety culture) rather than what they are (targeted modification of workers’ behaviour), it is my view that they actively disengage the workforce from the organisation’s safety effort, and undermine any perception that might have existed that management was committed to safety.

An excuse or distraction from the real work of safety management – understanding that risks are being controlled: This is perhaps the most disconcerting aspect of the way that safety culture is being touted in organisations. It is held out as a safety catchall while the difficult work of understanding whether risks are actually being controlled is lost amid the management speak and motherhood statements that now define safety culture in practice.

Two examples spring to mind.

In the first, a worker discovered some fibrous materials at a worksite and was concerned that they were asbestos. In breach of all documented policies and procedures, the worker put the fibres into an empty plastic Coke bottle, put the Coke bottle into a yellow inter-office envelope and dropped it into the internal mail. To describe the investigation into the incident as superficial would be generous, but the ultimate conclusion was that despite all of these policy and procedure breaches the outcome was a good one because the worker, by raising his concerns, had acted in accordance with the expectations of the [insert name of commercial program] which demonstrated a good safety culture.

In an organisation with anything even remotely approaching a safety culture, I cannot imagine this incident being viewed as anything but an unmitigated failure of the safety management system and a failure of management to properly supervise and oversee that system in every important regard: incident investigation, hazard identification, training and competence, supervision and communication.

The mere fact that safety culture can be used to paper over such a fragile safety management system shows how far we have managed to move away from its original intention.

In the second case, a review of a contractor’s safety performance identified that the principal did not have a traffic management plan for vehicle movement in an open pit mine. This was described by the principal’s safety manager as a problem of safety culture. How absurd.

Rather than dress this failure up in some amorphous notion of culture (for which he offered no solution) the safety manager should have faced the reality that it was a complete failure by him to identify a significant risk, and then asked the obvious question: What other risks have I missed?

For such a fundamental control to be missing in a high hazard environment can only be regarded as a complete breakdown of the safety management system. It should also call into question the competence of the safety manager, but once again, safety culture was used as an excuse to avoid doing the hard work of understanding how the safety management system came to be in such a state of disrepair.

I have no doubt that safety culture properly understood by the highest levels of executive management and pursued at that level will help drive excellence in safety performance. The nonsense that we dress up as safety culture will not. It undermines our aspirational statements about health and safety, it disengages the workforce from the safety message of the organisation, it contributes to the illusion of safety and distracts us from the genuine hard work that needs to be done to understand whether the risks in our businesses are being controlled.

References:

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, Issue 2, Volume 13.

Cullen, Lord. 1990. The public inquiry into the Piper Alpha disaster. Department of Energy. London: HMSO.

Hopkins, A. 2005. Safety, culture and risk: The organisational causes of disasters. Australia: CCH.

International Nuclear Safety Advisory Group. 1986. Summary report on the post-accident review meeting on the Chernobyl accident. Vienna: International Atomic Energy Agency. (see Also http://www-pub.iaea.org/books/IAEABooks/3598/Summary-Report-on-the-Post-accident-Review-Meeting-on-the-Chernobyl-Accident)

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

[1] Chairman and CEO of the US Chemical Safety and Hazard Investigation Board. Statement for the BP Independent Safety Review Panel on 10 November 2005, into the Texas City Refinery Explosion.

Zero harm and reasonably practicable: Inherently contradictory?

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There is a lot of discussion in safety circles around the concept of zero harm and its place in safety management (see the following example).

On one side of the debate proponents of zero harm say that it is an “aspiration” rather than a hard target, and that aiming to prevent all injuries is the right thing to do.

On the other side, the argument suggests that the use of zero harm actively disengages the workforce from safety: “They” do not believe in zero harm and it is just another corporate slogan used as a substitute for addressing the workforce’s genuine safety concerns.

My personal view is that slogans like zero harm probably do undermine safety, at least insofar as the organisations’ conduct is inconsistent with their statements.

I might leave that part of the debate to people far better placed to argue it than me, but recently I was involved in a discussion with a client about zero harm in a slightly different, but related context.

Under the safety management system the client strove to achieve Zero Harm by managing all risks as far as “Reasonable Practicable”. This seems to be the stated aim of most organisations to a greater or lesser degree.

What the client did not understand was that reasonably practicable is a legal concept that inherently recognises that accidents do happen.

The law is clear that it is not the responsibility of the employer to ensure that accidents never happen, rather an employer must do everything practicable to ensure that its employees are not exposed to hazards.

So, if we genuinely believe in zero harm, and want to do more than the minimum “legal” requirements, then surely we should adopt a philosophy or measure of safety performance that is consistent with what we want to achieve? Surely there is no place for the concept of reasonably practicable in an organisation that believes in zero harm?

Managing spontaneous stupidity

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This is an older case study that I put together a few years ago when I was working at STE, but in light of a number of recent discussions about workers making “mistakes“, I thought it might be worth revisiting.

The looks at the implications of asking a person to put in place controls to manage risks, but not ensuring that those controls are actually implemented. What are the consequences if some one is injured? And what if the injured person is the same person you asked to put the controls in place? Does it make a difference?

You can see a discussion about the case at the following link:

http://ste-safety-legal.ispringonline.com/view/4890-veh4g-72lSi

Please note that my contact details at the end of the presentation are not my current contact details, but you can contact me on gws@nexuslawyers.com.au or through our website, http://www.nexuslawyers.com.au