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

I am not a fan of the language of “zero“, either as an aspiration or as a stated goal. It has never sat well with me, and seems so disconnected from day to day reality in both society and a workplace that people cannot help but become disconnected from, or dismissive of, the message behind the term. My view has always been that the language of zero actually often undermines the objectives it is trying to achieve (see this case for example).

If you are interested in this topic (and if you are involved in safety you should be) there are far more passionate, learned and articulate critics of the language of zero than me – See for example, anything by Dr. Robert Long.

However, recently I have been asked to do quite a bit of work around psychological harm in the context of occupational safety and health. In particular, how the legal risk management of psychological harm in the context of safety and health might differ from the Human Resources (HR)/employee relations context.

WHS legislation around Australia expressly includes “psychological” health within its remit and the Western Australian Department of Mines and Petroleum has acknowledged that they regard “health” as including “psychological” health, even though it is not expressly described in the State’s mining legislation.

What has emerged, at least to my mind, is the extent to which our policy, procedure and policing approach to safety and health, far from alleviating psychological harm in the workplace, might be contributing to it.

Safety management might be part of the problem.

In an ongoing Western Australian inquiry into the possible impact of fly in/fly out work on “mental health” the Australian Medical Association identified that the way health and safety is managed can contribute to a “distinct sense of entrapment” (page 43):

The AMA also expressed its concerns about this issue, noting that “[o]nerous rules, safety procedures and focus on achievement of production levels have been shown to create a distinct sense of entrapment in FIFO workers.”

The inquiry drew, in some measure, on an earlier report, the Lifeline WA FIFO/DIDO Mental Health Research Report 2013 which also appeared to note the adverse impact of safety and health management on psychological well-being. For example “[a]dhering to on-site safety rules” was identified as a workplace stress (page 77). Interestingly, the Lifeline report noted a sense of “intimidation” brought on by the number of rules and regulations associated with work on a mine, and :

This sense of intimidation was further mirrored in the outcomes of mining safety regulations which in theory were designed to care for workers but in practice led to inflexible regulation over genuine safety concerns (page 81).

Examples from the Lifeline report include:

… a participant recalled a situation in which a worker handling heavy loads required an adhesive bandage but was unable to ask someone to get them for him because he had to fill out an accident report first (which he was unable to do mid-job); hence he had to carry on working without attending to his cuts. Alternatively, another example of the application of safety rules in an inflexible manner was illustrated when a group of workers were reprimanded for not wearing safety glasses on a 40 degree day even though they could not see from them due to excessive sweating. Hence, safety rules themselves were accepted as a necessary part of work but their implementation in an inflexible uniform manner created stress as workers felt their impact hindered their ability to conduct basic work tasks safely and/or without attracting rebuke. Hence, site rules and regulations could translate into arbitrary and punitive forms of punishment, which undermined participants’ ability to fulfil jobs to their satisfaction and left them feeling insecure with their positions (page 81).

It seems, then, that we need to think beyond our own perceptions of what might contribute to workplace stress and understand the impact that our efforts to manage health and safety might actually be having. Again, as the Lifeline research noted:

… although past research has shown that site conditions and cultures, such as isolation and excessive drinking are problematic, this research shows that the regimented nature of working and living on-site also takes a toll on mental health and wellbeing. From the responses of many participants, it was apparent that following site safety rules (either under pressure of internal monitoring or in the perceived absence of adequate safety precautions by co-workers and supervisors) was a significant stressor. Participants felt unable to apply self-perceived common-sense judgments and also reported feeling vulnerable to intensive scrutinising, intimidation and threats of job loss (page 82) [my emphasis added].

The common criticisms of the language of “zero” seem to me to go directly to the factors that have been identified in this research as contributing to psychological harm in the workplace. The pressure to comply with rules, fear about reporting incidents, the inability to exercise individual judgement on how to manage risk and the inflexible application of process are all side-effects of the language of “zero“.

Up until this point the debate around “zero harm” and its utility (or otherwise) as the headline for safety management has been relatively benign. Apart from the advocacy of people like Dr Robert Long “zero harm” seems to have been perceived as a relatively neutral strategy, insofar as people believe that it “does no harm“, and “what’s the alternative?”.

It seems, in fact, that much harm may be perpetuated in the name of “zero“, and at some point the behaviours that it drives will be found to be unlawful.

It is also going to be interesting to see how health and safety regulators, often the champions of “zero harm” oversee its potential impacts on psychological harm in the workplace. Indeed, it would be very useful to see what risk assessments, research or other measures were taken by regulators prior to introducing “zero harm” style campaigns or messages to understand the potential effects of their interventions, or any subsequent research to understand the potential harm they may have done.

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How safety regulation undermines safety

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

This week I was confronted with another, recurring example.

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

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

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

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

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

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

A good outcome for safety?

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

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

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

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

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

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

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

Contractor Safety Management: Waco Kwikform Ltd v Perigo

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.

Paper Based Safety Systems in a Contract Environment

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

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

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

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

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

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

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

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

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

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

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

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

The general “failure” in this case was that:

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

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

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

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

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

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

The Court found that the:

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

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

Do we need to rethink safety prosecutions?

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

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

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

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

The value of safety prosecutions in Western Australia

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

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

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

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

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

The psychology here is also interesting.

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

  • Certain;
  • Immediate; and
  • Positive.

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

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

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

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

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

The incident occurred in August 2008

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

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

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

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

Contractor safety management series Part 5: KCGM v Hanekom

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

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

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

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

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

You can access a video presentation about the case here.

Lead indicators: Reinforcing the illusion of safety

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

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

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

The statistical information provided to the board on health and safety comprised mainly personal injury rates and time lost through accidents.  … The information gave the board some insight but was not much help in assessing the risks of a catastrophic event faced by high hazard industries.  … The board appears to have received no information proving the effectiveness of crucial systems such as gas monitoring and ventilation.

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

Nothing suspiring there!

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

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

And so on.

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

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

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

Nonsense.

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

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

What are the crucial systems in your business?

How do you prove that they are effective?