Is this really what due diligence was designed for?

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

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

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

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

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

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

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

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

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

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

 

 

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.

Gallifreyan_20150512223239

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?

Delphic motherhood statements part 2 – safety documents that nobody can understand

A little while ago I did a post looking at the complexity of documented safety management systems, and the role that documentation has played in undermining effective safety management. You can review the post here.

I was recently sent an article (you can access it here) which underscores the potential negative impact safety documentation has on safety performance.

The New Zealand research found that:

  • Two thirds of employees did not fully understand information contained in health and safety documents , including safety procedures;
  • 80% of employees were not able to accurately complete hazard report forms; and
  • Safety documents were highly complex and used vocabulary that employees did not understand.

A fascinating aspect of the research is that it provides a list of words that were unfamiliar and confused employees. Some of those words included “significant hazards” , “competence”, “accountabilities” and “not adversely affect”. All words that reflect the requirements of legislation and guidance material but have little place in the day to day comprehension of workers.

From my own perspective, I have to say that this research is entirely consistent with my study of major accident events going back 30 years. Every major accident events enquiry that I have ever researched has identified that in some way the documented safety management systems undermine effective safety performance. Typically they are too complex for the people who have to implement them to understand.

Based on my experience I would add two further phrases to the list of unfamiliar words: ” reasonably practicable” and “root cause”. These two phrases are ubiquitous throughout safety management documents in Australia, yet universally whenever I am conducting obligations or investigation training there is no common (much less “correct”) understanding of what these things mean.

There are two things that I find professionally embarrassing as a person who has spent the last two decades specialising in safety and health management . The first is our continued reliance on lost time injury data as a measure of safety performance in light of the overwhelming evidence that they add no value to our understanding of the management of risk.

The second is , despite at least 30 years of “reminders” that out documented safety processes add little to the management of safety risks, almost universally we continue to do the same thing, in the same way but somehow expect a different. I think Einstein had something to say about that.

I have recently been working with a senior executive in an organisation who confronted a safety consultant with the following:

“if you can’t explain it to me easily, then you don’t understand it yourself “

An interesting test to apply to our safety documents?

Safety risk and safety data: Exploring management line of sight

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

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

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

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

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

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

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

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

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

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

Invariably, most hands go up.

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

Again – most hands go up.

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

Pause ……

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

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

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

The statistical information provided to the board on health and safety comprised mainly [LTI rates]. The information gave the board some insight but was not much help in assessing the risks of a catastrophic event faced by high hazard industries.

… The board appears to have received no information proving the effectiveness of crucial systems such as gas monitoring and ventilation. (My emphasis).

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

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

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

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

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

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

Ultimately, the worth of a system depends on whether health and safety is taken seriously by everyone throughout an organisation; that it is accorded the attention that the Health and Safety in Employment Act 1992 demands. Problems in relation to risk assessment, incident investigation, information evaluation and reporting, among others, indicate to the commission that health and safety management was not taken seriously enough at Pike. (my emphasis)

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

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

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

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

References

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

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

25 Years on: Remembering Piper Alpha

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

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

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

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

Transpacific Industries: Disciplinary action as a safety control

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