Just following on from the feedback from my last post about process v outcome in safety management, below if a short video I did a little while ago that explains some of the concepts further.
Enjoy.
Tag: Supervision
What are our obligations to careless workers?
When you survey the range of safety commentary online, it is hard to escape the view that workplace health and safety is still primarily concerned with the behaviour of individual workers, and incidents are the consequence of careless individuals.
In my experience, this thinking does not align with any credible safety management theory, and it is not consistent with an organisation’s obligations under health and safety legislation. At its simplest, a worker’s individual carelessness makes no difference to the obligations of their employer, other organisations or other individuals under health and safety legislation.
The fact that a careless, individual worker did not meet their obligations under health and safety legislation, is no answer to the question of whether you met yours.
In the recent NSW District Court decision, Inspector Nash v Perilya Broken Hill Limited [2018] NSWDC 28 (read decision) the Court canvassed the issue of careless and disobedient workers in detail.
By way of background, On 8 June 2012, an employee of Perilya Broken Hill Limited (PBHL), Mark Pollard suffered a traumatic amputation of his right leg and other injuries when he fell down a haulage shaft at a mine in Broken Hill (Mine). At the time of the incident Mr Pollard, was trying to hang some weights from the bottom of a weigh flask to calibrate an instrument a load cell which measured the weight of ore in the flask.
The weights were in a metal basket and the weight Mr Pollard was hanging was about 10 tonnes. The weights and basket were in the bucket of a loader. Mr Pollard was trying to hang the weights by working from the bucket of the loader, the bucket being located in the haulage shaft.
Mr Pollard was secured to the bucket by personal protective equipment (PPE), a fall arrest system comprising harness and lanyard. His lanyard was tied to the bucket.
While Mr Pollard was working, the weights and basket fell out of the bucket and so did Mr Pollard. His lanyard snapped, and he fell.
The Court said:
In view of the fact that the workers used the bucket of the loader contrary to the understood policy prohibiting it, it is appropriate to look at authorities involving cases of careless or disobedient workers.[my emphasis added]
Drawing on precedent cases, the Court made several observations:
- Health and safety legislation is designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry:
The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable…
- “Foreseeability” is relevant, and it is not generally practicable to take measures to guard against a “detriment to safety” that was not reasonably foreseeable:
It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.
- If there is a foreseeable risk of injury arising from the employee’s negligence while working then the employer must take this into account.
- The extent and standard of training an employer must give will depend upon the nature of, and circumstances under which, work is performed. It is not always necessary to have classroom-based instruction or work manuals. However, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training.
- It is not enough to simply give employees instructions about health and safety “an employer must also ensure that those instructions are carried out”.
- But, when an employer has established and implemented a proper system, then this can be an answer to the conduct of individual workers:
Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety.
In the PBHL case, the Court rejected any argument that carelessness by individual workers limited PBHL’s liability:
I do not see any scope for the application of a principle in this case that would limit the defendant’s liability where the very risk that is in issue is one that was foreseen by Mr Dally and by Mr Slade, where Mr Dally told Messrs Tavian, Harris, Ridley and Gauci that he did not want the workers working the bucket of the loader and where he expected that to be passed on to the workers, and where he expected that to be in the JSA.
Mr Dally and Mr Slade both expected the JSA to cover the risk of the use of the bucket and/or falling from height and it did not. [my emphasis added]
The Court found procedures and instructions for the work were incomplete and workers were directed to start work when the JSA process was deficient and the JSA document was inadequate. The employer should have known both those things.
A common misconception is that safety prosecutions are all about identifying “fault” – who was at fault, or most at fault, when an accident occurred. This is not the case.
Employees who breach known safety procedures may be at “fault”. Indeed, individual workers and supervisors are prosecuted following workplace accidents. But an employees fault is no answer to the question, “did the employer meet their obligations under health and safety legislation?”.
The fact an employee breached safety procedures – even procedures they were aware of, does not prove an employer provided adequate training and supervision, nor does it prove an employer diligently enforced its systems of work.
Safety leadership: enabler, excuse or doing harm?
I do not think that there is any serious view suggesting that “leadership” is not an important, if not the most important driver of safety performance. One of the main findings from a 2002 review of Safety Culture was:
… management was the key influence of an organisation’s safety culture. A review of the safety climate literature revealed that employees’ perceptions of management’s attitudes and behaviours towards safety, production and issues such as planning, discipline etc. was the most useful measurement of an organisation’s safety climate. The research indicated that different levels of management may influence health and safety in different ways, for example managers through communication and supervisors by how fairly they interact with workers (Thompson, 1998). Thus, the key area for any intervention of an organisation’s health and safety policy should be management’s commitment and actions towards safety (Safety Culture: A review of the literature).
In the wake of findings like these, and numerous others, it is unsurprising that safety leadership often dominates discussions about safety management.
But are there conversations about safety leadership that we are not having and should be?
To my mind, the hard work in health and safety management is understanding if, or the extent to which, health and safety risks in our business are being controlled. All too often, however, in my experience “leadership” is an excuse to avoid the hard work of health and safety management.
The “psychology” (and I use that term as a complete layperson) of safety leadership seems to be that if I can convince my workforce that I genuinely care for them and that safety is genuinely important, then safety will take care of itself.
If I “care“, if I am a “safety leader” I do not need to do the hard work to critically challenge incident investigations, I do not need to analyse, understand and challenge audits. If I am a “safety leader” then I can accept declining personal injury rates and green traffic lights on my corporate scorecard as evidence that my safety management system is working, without ever having to challenge the assumptions that underpinned that information. Assumptions that have been shown time and again to be wrong.
This is the same discourse that threaded its way through safety culture: It doesn’t matter how bad our management systems are because we have a good “culture“. It is also the same discourse that is starting to creep into the next wave of safety thinking, concepts like “safety differently” and “appreciative enquiry“.
I make no comment on the efficacy of leadership, culture, safety differently, appreciative enquiry or whatever the next trend will be but I do question where, in any of these concepts, we do the hard work of confirming that our risks are being controlled.
I recall many years ago reviewing a matter where a worker sent a hazardous substance through the internal mail using a yellow into office envelope (back when they existed). The worker broke every one of the organisations procedures and protocols for managing hazardous substances, yet the organisation viewed this dangerous event as a triumph of their “culture“, because the worker “cared“.
The twisted logic where organisations use leadership or culture to wallpaper over the cracks of ineffective safety management systems, and actively avoid the hard work of understanding if their risks are being controlled, is very often bought into stark relief following a disaster.
The next time you are in a meeting discussing safety management listen to see if leadership or culture is being used as an avoidance strategy. Are the difficult topics such as improving the quality of incident investigation or clarifying complex and bureaucratic safety management systems or improving risk assessments bypassed with comments like:
we just need to get out and be seen more
or
we just need to spend more time in the field talking to the blokes
Is this leadership or an excuse to avoid the hard work?
Over and above avoiding what really needs to be done, is it possible that the things we do in the name of “leadership” have the potential to actively undermine safety in our organisations?
Whatever your “leadership” objective might be, whether it is to demonstrate commitment, to understand the work being performed in your organisation, to appreciate what might be preventing people from complying with safety procedures or any other objective, how do you know that your actions in the name of leadership are achieving those objectives? Because for all your good intentions there is a real risk that your presence in the field talking about safety might have the opposite effect. It might promote cynicism amongst your workforce, it might disengage them from your safety message.
You may be seen as a leader whose only concern is to cover their own backside and who obsesses over safety issues important to you, without really listening to the concerns of the workforce.
How do you know if your safety leadership works?
I think that much of what is done in the name of safety and health has, consciously or unconsciously, devolved into “window dressing“. Much of what we do is held up to the public or to our workforce as evidence of our commitment to safety, yet the substantive hard work necessary to understand if our health and safety risks are being managed remains undone – the façade of health and safety management is attractive but the building is crumbling.
Safety leadership and related concepts of care and culture have a place. More than that, they are critically important. But they are not buzzwords to be lightly tossed around and as a critical process, leadership deserves the same level of scrutiny and analysis as any of your other critical processes.
Welcome to the intellectual vacuum that is political comment on WHS
Today (29 October 2016) the ABC had an article on the ongoing coverage of the tragic loss of lives at Dreamworld in Queensland.
I have commented before about the disconnect between the loss of life in this workplace accident and the near weekly loss of life in Australian workplaces that the coverage of this incident highlights. That disconnect was underscored by a picture of the Federal Opposition Leader, Bill Shorten, laying flowers outside Dreamworld. I do not begrudge Mr Shorten the opportunity to express his condolences (or advance his political position depending on your level of cynicism), but I cannot recall too many times political leaders have given similar public displays of solidarity when people die at our construction, mining, agricultural or any other workplaces.
But what has prompted this article is the simplistic, reactive, leaderless response that politicians trot out in the face of these types of events.
The ABC Article reports Queensland Premier Annastacia Palaszczuk as saying:
“It is simply not enough for us to be compliant with our current laws, we need to be sure our laws keep pace with international research and new technologies,”
“The audit will also consider whether existing penalties are sufficient to act as deterrents, and whether these should be strengthened to contain provisions relating to gross negligence causing death.
“Because we all know how important workplace safety is and how important it is to have strong deterrents.
“That’s why Queensland has the best record in Australia at prosecuting employers for negligence – and we are now examining current regulations to see if there are any further measures we can take to discourage unsafe practices.”
The idea that we “should not be compliant with our current laws” is both a nonsense and a failure of policy makers to properly accept the findings of the Robens Report published in the mid-1970’s. The reason our laws cannot keep pace with “international research and new technologies”, is because governments continue to insist on producing highly prescriptive suites of regulation which in most cases are adopted by organisations as the benchmark for “reasonably practicable”.
For most businesses, particularly small and medium-sized businesses, technical compliance with regulation is the high-water mark of safety management – an approach reinforced by the “checkbox” compliance mentality of many regulators.
WHS legislation is a leading example of this failure of policy, in so far as it increased the number of regulations in most of the jurisdictions where it has been implemented.
Flexible, innovative safety management requires a regulatory framework that promotes it, not limits or discourages it. How can a regulator have any credibility when it calls on industry to keep pace with “international research”, when it continues to define safety performance through the publication of lost time and other lag injury rates?
Ms Palaszczuk then adopts the standard “tough on safety” call to arms, without taking the time to recognise inherent contradictions in what she is saying. She boasts that “Queensland has the best record in Australia at prosecuting employers for negligence”, but hints at tougher penalties still.
If the considerable penalties under the WHS Legislation and the “best record” of prosecuting employers are not a sufficient deterrent, why would “tougher” and “better” be any different?
I have written about these types of matters before, and would just ask that before policymakers go charging off in pursuit of higher penalties and more prosecutions, we stop and take the time to see if this tragedy can provide the opportunity lost during harmonisation and introduction of WHS legislation.
That lost opportunity was a chance to stop and consider the way that we regulate and manage health and safety in this country.
And can we start with the question of whether criminalising health and safety breaches and managing safety through a culture of fear driven by high fines and penalties is the best way to achieve the safety outcomes we want?
What is the evidence proving high penalties and prosecutions improve safety outcomes?
Are there ways that we can regulate safety to provide significant deterrents and consequences for people who disregard health and safety in the workplace, but at the same time foster a culture of openness, sharing and a willingness to learn and improve?
Can we redirect the time, money, expertise and resources that are poured into enforcement, prosecution and defending legal proceedings in a way that adds genuine value as opposed to headline value?
This is a chance to stop and think. This is a chance for the health and safety industry to stand up, intervene and take a leadership role in health and safety.
If we do not, the intellectual vacuum will continue to be filled by the historical approaches that have brought us to where we are today.
Reflections on Safety: Reasonably Practicable
In August 2016, I wrote a WHS Update about the High Court decision, Deal v Father Pius Kodakkathanath [2016] HCA 31 which considered the legal test of Reasonably Practicable in the context of Australian health and safety legislation. Shortly after that, one of my connections on Linkedin posted an article about Reasonably Practicable. The article offered an engineering perspective on “As Low as Reasonably Practicable” (ALARP), stating:
… recent developments in Australian workplace health and safety law place proactive responsibilities on senior personnel in organisations, so they must be fully informed to make proper decisions
This sentiment seemed similar to an earlier engineering publication which argued that ALARP and “So Far as is Reasonably Practicable” (SFARP) were different and that this difference was, in part a least as result of “harmonised”, WHS legislation.
In both cases, I believed the articles were misaligned with the legal construct of Reasonably Practicable and misrepresented that there had been a change in the legal test of Reasonably Practicable prompted by changes to WHS legislation.
This background caused me to reflect again on the notion of Reasonably Practicable and what it means in the context of legal obligations for health and safety.
To start, I do take issue with the suggestion that changes to WHS legislation have resulted in a shift in what Reasonably Practicable means. The basis of this idea seems to be an apparent change in terminology from ALARP to SFARP.
The term SFARP was in place in health and safety legislation before the introduction of WHS and jurisdictions that have not adopted WHS legislation still use the term. For example, the primary obligations under the Victorian Occupational Health and Safety Act 2004 are set out in section 20, and state:
To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person …
Indeed, the architects of WHS legislation[1] specifically retained the term Reasonably Practicable because it was a common and well-understood term in the context of Australian health and safety legislation:
5.51 Reasonably practicable is currently defined or explained in a number of jurisdictions. The definitions are generally consistent, with some containing more matters to be considered than others. The definitions ‘are consistent with the long settled interpretation by courts, ‘in Australia and elsewhere.
5.52 The provision of the Vic Act relating to reasonably practicable was often referred to in submissions (including those of governments) and consultations as either a preferred approach or a basis for a definition of reasonably practicable.
5.53 We recommend that a definition or section explaining the application of reasonably practicable be modelled on the Victorian provision. We consider that, with some modification, it most closely conforms to what would be suitable for the model Act. [My emphasis added]
In my view, it is unarguable that the concept of Reasonably Practicable has been well-settled in Australian law for a considerable period, and the concept has not changed with the introduction of WHS legislation.
If we accept that Reasonably Practicable has been consistently applied in Australia for some time, the next question is, what does it mean?
Reasonably Practicable is a defined term in most health and safety legislation in Australia. Section 20(2) of the Victorian Occupational Health and Safety Act 2004, for example, states:
(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
In the High Court decision, Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, Justice Gaudron described Reasonably Practicable as follows:
The words “reasonably practicable” have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words “reasonably practicable” are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
- the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible”;
- what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time;
- to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[2] [my emphasis added]
Another High Court decision, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, emphasised similar ideas.
The case concerned that the death of a subcontracted worker during forklift operations. Baiada was the Principal who had engaged the various contractors to perform the operations and in an earlier decision the court had concluded:
it was entirely practicable for [Baiada] to required contractors to put loading and unloading safety measures in place and to check whether those safety managers were being observed from time to time ((2011) 203 IR 396 at 410)
On appeal, the High Court framed this finding differently. They observed:
As the reasons of the majority in the Court of Appeal reveal by their reference to Baiada checking compliance with directions it gave to [the contractors], the question presented by the statutory duty “so far as is reasonably practicable” to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada’s obligation “so far as is reasonably practicable” to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.[3] [my emphasis added]
In light of these, and other decided cases it is possible to form a practical test to consider what is Reasonably Practicable. In my view, it is necessary for an organisation to demonstrate that they:
- Have “Proper Systems” to manage the health and safety risks in their business; and
- Exercise “Adequate Supervision” to ensure that the Proper Systems are implemented and effective to manage the risks.
What constitutes Proper Systems and Adequate Supervision is a judgement call that needs to be determined with regard to the risks. It requires an organisation to balance the risk against the cost, time and trouble of managing it.[4]
It is also worth noting at this point, that Reasonably Practicable is, generally speaking, an organisational obligation. It is not an individual,[5] and in particular, it is not an employee obligation.
I often see, when working with clients, safety documents required be signed by employees that the state that risks have been controlled to “ALARP”. This is not the employee’s responsibility and the extent to which an employee does or does not control the risk to ALARP does not affect an employer’s obligations.
In broad terms, it is the organisation’s (PCBU or employer) obligation to manage risks as low as, or so far as is, Reasonably Practicable. The employee obligation is to do everything “reasonable”. This includes complying with the organisation’s systems.
It is the organisation’s obligation to identify the relevant health and safety risks and define how they will be controlled, ensuring that the level of control is “Reasonably Practicable. It is the employee’s obligation to comply with the organisation’s requirements.
So, what might Reasonably Practicable look like in practice?
I recently defended a case that involved a worker who was seriously injured at work. Although the injury did not result from a fall from height, the prosecution case against my client was based on failure to meet its obligations about working at heights.
My client had, on any measure, a Proper System for managing the risk of work at heights. They had a documented working at height Standard and Procedure both of which were consistent with industry best practice and regulator guidance material. All work at height above 1.8 m required a permit to work and a JHA. The documented procedures prescribed appropriate levels of supervision and training.
In the three years before the relevant incident, my client had not had a working at height incident of any sort nor had they had a health and safety incident at all. Based on all of our investigations as part of preparing the case, there was nothing to suggest that the incident information was not legitimate.
The activity which was being performed at the time of the incident was conducted routinely, at least weekly, at the workplace.
In looking to construct a Reasonably Practicable argument to defend the case what would we be trying to do? In essence, I would be trying to establish that the incident was an aberration, a “one off departure” from an otherwise well understood, consistently applied system of work that was wholly appropriate to manage the risk of working at heights.
In practice, that would mean:
- Producing statements from all of the workers who performed this task describing how it was performed in practice, and demonstrating that their understanding of the way the work was performed in practice was consistent with the requirements of the organisation’s documented systems;
- Producing completed documentation from when the job had been performed previously, and demonstrating that the documentation was consistent with the organisation’s requirements, and completed correctly;
- Producing statements from supervisors who approved the documentation and oversaw the performance of the work and demonstrating that their understanding of the way that the work was performed in practice was consistent with the requirements of the organisation’s documented systems;
- Producing completed documentation from when the injured worker had performed the work previously and demonstrating that the documentation was consistent with the organisation’s requirements and completed correctly.
There may be other information that we would seek, but in broad terms, the information outlined above helps to build a case that there was a proper system that was effectively implemented and that:
- All the workers understood the system,
- All the workers understood how it ought to have been applied, and
- It was applied in practice.
What happened?
Rather than be able to demonstrate that the incident was a one-off departure from an otherwise effective system, the evidence revealed a complete systemic failure. While the documented system was a Proper System and complied with all relevant industry standards and guidelines, it was not implemented in practice.
Most compelling was the fact that, despite this being a weekly task, there was not a single instance of the working at height Standard and Procedure been complied with. We could not produce a single example where either the injured worker or indeed any worker who had performed the task had done so under an approved permit to work with an authorised JHA.
All of the workers gave evidence that the primary risk control tool on site was a Take 5. The Take 5 is a preliminary risk assessment tool, and only if that risk assessment scored 22 or above was a JHA required. The task in question was always assessed as 21. The requirement for a JHA, in the minds of the workforce, was never triggered and none of them understood the requirements of the Standard or Procedure.
To me, this case is entirely indicative of the fundamental failure of Reasonably Practicable in most workplaces. In the vast majority of cases that I have been involved in the last 25 years, organisations have systems that would classify as Proper Systems. They are appropriate to manage the risk that they were designed to manage.
Equally, organisations cannot demonstrate Adequate Supervision. While there may be audits, inspections, checking and checklists – there is no targeted process specifically designed to test and understand whether the systems in place to manage health and safety risks in the business are in fact implemented and are effective to manage those risks.
In my experience, most organisations spend far too much time trying to devise the “perfect” Proper System. We spend far too little time understanding what needs to be done to confirm that the System works, and then leading the confirmation process.
Reasonably Practicable has not changed.
Reasonably Practicable is not a numeric equation.
Reasonably Practicable changes over time.
Reasonably Practicable is an intellectual exercise and a judgement call to decide how an organisation will manage the health and safety risks in its business.
Reasonably Practicable requires an organisation to demonstrate that they:
- Have “Proper Systems” to manage the health and safety risks in their business; and
- Exercise “Adequate Supervision” to ensure that the Proper Systems are implemented and effective to manage the risks.
What constitutes Proper Systems and Adequate Supervision is a judgement call that needs to be determined with regard to the risks. It requires an organisation to balance the risk against the cost, time and trouble of managing it.
[1] See the National Review into Model Occupational Health and Safety Laws: First Report, October 2008.
[2] Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 [53].
[3] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 [33].
[4] See also: Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58 and Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209.
[5] There are some exceptions to this where an individual, usually a manager or statutory officeholder will be required to undertake some action that is Reasonably Practicable.
This article is a general discussion about Reasonably Practicable and related concepts. it should not be relied on, and is not intended to be specific legal advice.
Systems as Imagined v Systems in Practice
The recent NSW Supreme Court decision, Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221 is another in a long line of decisions that highlight the disconnect between safety management systems as they are documented, and what occurs in practice.
Documented safety processes are important. They provide guidance on how safety is managed and evidence that an organisation is meeting its obligations. However, where an accident reveals long-term, systemic non-compliance with obvious safety expectations documented safety processes do not provide a defence, often they do not provide mitigation, and in cases such as this they are an aggravating circumstance. As the Court noted:
The vast range of induction and supervising protocols adopted by the respondent or in force at its premises serves not to relieve the respondent of its responsibility for safety but on the contrary powerfully reinforces the extent to which the respondent failed to put them into practical effect.
For documented safety processes to add value they must:
Be consistent with the organisations risks and obligations;
- Be completed correctly; and
- Reflect what actually happens in practice.
All too often, documented safety management systems are one of the biggest contributors to the illusion of safety: the gap between the management of health and safety risk as we imagine it and what actually occurs in practice.
These are concepts that I have explored in my recent book, Risky Conversations: The Law, Social Psychology and Risk, and its accompanying video.
You can access a more detailed article about the case here.
I have read and understood ….. What is the value of providing safety documents to employees?
A recent NSW Industrial Relations Court decision has agitated the question of whether an employer needs to provide written safe work procedures to its employees as part of their duty to provide a safe workplace.
In Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd [2015] NSWDC 15 a company and its director were prosecuted after an employee suffered severe burns while filling a burning pot used to heat food trays for a buffet style meal. The pots were filled using methylated spirits.
One of the allegations in the case was that the employer had not provided the employee with a “written safe work method” for the task. The Court found that the failure to provide the written information was not a breach of the employers obligations:
I do not think that the case for providing her with a written safe work method is made good. The written document for an immigrant such as Anisha may be difficult to comprehend and follow and may not necessarily be effective. A spoken direction is more likely to be effective.
This is not unprecedented, or unsurprising. In a 2013 South Australian decision, Moore v SD Tillett Memorials Pty Ltd [2013] SAIRC 47 it was alleged by the prosecution that the employer should have kept a record of a training document, and who that document was provided to. In relation to that allegation the Court said:
This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees …
Another instructive case is Inspector Shepherd v Desiya Pty Ltd [2013] NSWIRComm 9. In that case workers were provided with “on the job” training in relation to operating machinery and traffic management in a work yard. An employee was killed when he was hit by a truck.
One of the allegations against the company (which was ultimately convicted) was:
The training and assessment of drivers of yard trucks was done via ‘on the job training’ and assessment.
One the job training is a legitimate training method, indeed, as illustrated by the Siva & Jeya Pty Ltd case, may be the appropriate method. In the case of Desiya, on the job training was a deliberate and legitimate strategy:
Verbal instructions were commonly used … as a control measure against employees with poor literacy skills not understanding the written instructions contained within training documentation.
The difficulty lay, not in the strategy, but the execution.
The competence of the trainee or trainer was not assessed against any documented objective criteria. After this ‘training’ process, if the driver was assessed as competent by the supervisor they were then permitted to operate the truck.
There are many appropriate and legitimate ways that an employer can discharge their obligations to ensure that employees are trained and competent to perform their work safely. These might include formal class room training, on the job training, computer based training, the use of written work instructions and so on.
The lessons from these, and similar cases, is that simply providing safe work procedures to employees is not sufficient to discharge and employers obligations. In all likelihood, simply providing training, no matter what its purported “quality” will not be sufficient either.
Documented safe work procedures should be developed and maintained, but they are not an end in themselves – they are simply the evidence of the “objective criteria” against which workplace safety will be judged.
To discharge obligations to ensure relevant training and competency in the workplace, employers need to be able to demonstrate that:
- Workers have been provided with the relevant information about how to do their job safely;
- Workers understand that information;
- Work is actually performed in accordance with the training; and
- There is ongoing supervision and enforcement of the training.
Equally importantly, this does not require dumbing everything down and treating workers like fools. Give workers the information they need to do their job safely, trust them and supervise them with respect – you might just be surprised by the results.
My Safety Thoughts 