For years Australian OHS legislation has focused on establishing a “safe system of work”. This focus is inclusive and is an understandable approach to safety regulation but it has also generated a fair share of confusion. If a business does not have a documented safety management system, does it have a system of work? Yes it does but the lack of documentation makes it very difficult to describe, particularly if there is a performance benchmark such as “compliance”. Humans like to have a clean line of cause and effect or a linear, causative management process. So vague concepts like “system of work” can be challenging.
Prescriptive rules used to be the way that safety compliance could be met but that world is long gone. Its distance can be seen by looking at the Australian Government’s new model Work Health and Safety Act which compounds the vagueness by including “as far as reasonably practicable” wherever possible. All of this vagueness makes the lot of the business operator more complex and more costly as the business operator seeks clarity from others such as lawyers, OHS consultants, auditors and Standards organizations. Is it any wonder that safety is seen as an exorbitant cost? In essence, OHS regulators have outsourced the responsibility, and the cost, to employers. Under new OHS laws the government aims to reduce business costs by harmonizing the laws but has written the laws in such a way that business costs stay the same or are allocated to a different cost centre.
This was always going to be the risk in a review process that looked at safety laws rather than safety management.
The old days of prescriptive legislation and OHS inspectors who are experts in pressure vessels and scaffolding are not going to return because OHS regulators, in Australia at least, were convinced that by being prescriptive and by certifying equipment, employers and injured parties would “go” the regulator. The argument would be “you said it was safe and this incident proves it wasn’t, here’s the law suit”. That attitude persists in OHS regulators and regulations where the enforcers of the rules are increasing their distance from the application of the rules. They are enlarging the OHS management gap that is, understandably, being filled by expensive advisers and trying to address the increasing costs by increasing the need for advisers. It is an absurd process and one that displays a remarkable shortsightedness by the politicians and the labour lawyers who have become politicians.
Corporate Responsibility and Government Responsibility
Although this situation has manifested in Australia there are echoes in the American safety industry. The current oil spill in the Gulf of Mexico has generated much criticism of President Obama over his failure to fix the problem. Why was it his problem? It is claimed that inadequate regulation on offshore oil drilling somehow allowed BP and Transocean to mismanage the emergency procedures and equipment on the oil rig. This seems unfair as BP had a level of engineering expertise in this area that was likely to be beyond that of the local regulators and, perhaps, those in Washington and elsewhere. BP is still claiming to have adequate resources and finances to deal with the impacts of the oil leak that has been gushing for well over a month. The President should not be held responsible for the management decisions of these companies.
He does have a responsibility to assist in the clean-up and preserving the integrity and health of the coastline as he has a public responsibility to his citizens but he can be expected to seek financial recompense from BP for the unnecessary costs to the government. Obama also has a responsibility over the efficiency and effectiveness of government agencies and has already taken action on that front.
What is happening in the US is a refinement of the line of government responsibility and corporate responsibility. This is an essential process in any safety regulatory system that has relied on self-regulation, a concept that remains in place even though there are dozens of examples where such a system has consistently failed.
BP has been criticized publicly in the past for not learning from the mistakes of its own operations. A range of industries around the globe have also be criticized for not learning from the mistakes of others in similar industries, and it is not as if these mistakes have a low profile – Bhopal, Three Mile Island, Esso Longford, Piper Alpha……..
Corporations all have their own systems of work, they all have safety management systems and they all struggle to understand how their safety management system fails. They struggle because they have come to believe in the infallibility of their safety management system, be it one they developed or one they bought off-the-shelf, perhaps they were sucked in by the smooth-talking salesperson. OHS and environmental regulators have given corporations plenty of regulatory rope and now corporations are beginning to hang themselves.
All indications are that Australia will continue to redirect safety regulation to employers and business. The consequences of this is that the likelihood of derailments, oil spills, energy supply failures, structural collapse and other incidents will increase. Blaming the failures on a corporate safety culture is unproductive when the safety culture was allowed to develop with government support and encouragement through self-regulation and vague compliance levels. Failed corporate safety culture reflects a failed regulatory safety culture. The Australian debacle over home insulation installation is an example. Policy makers need to realize that self-regulation is a dead-end policy and that government erred by relinquishing its control over safety management.
We now live in a safety culture where society seeks compensation for incidents rather than refining the social system of work in order to prevent incidents. Corporations wanted flexibility to achieve compliance in their own way. Governments granted it and continue to do so. The question that always needs answering is who will accept the responsibility when the system fails.