Compliance or Confidence?

A reader has been inspired by recent articles discussing OHS compliance to contribute their own article on some of the issues raised:

“Compliance”, while being a way forward in OHS, misses the mark. We should ask the question: Why do regulators want compliance anyway?

Compliance, or conformance as is alternatively used, is a means to an end. Not an end in itself. In haste to improve the world via compliance we sometimes forget that.

Compliance presumes that rules laid down by regulators are a “good enough” way to achieve safety. Compliance’s foundation is the minimum-standard. Foundations cannot be anything like the maximum-standard because best practice regulation knowledge backs up our common sense that maximum standards would be bad and expensive. But wouldn’t it be comforting to be able to encourage and get more than just the minimum?

Some who have felt the stick end of compliance might think some regulators believe their rules and guides are the only path to safety. But the fact is that even the best codes & regulations have flaws; they do change. Furthermore, exemptions get provided, position papers and codes of practice get written to fill the gaps. And they get re-written. Sometimes the reasons for a rule are lost in time. Shamefully, sometimes valid reasons never existed. Sometimes rules are written to serve the purposes of some over others or to empower authority. We can know this because COAG and the OBPR have to warn against it.

Regulations are very rightly constrained by good regulation requirements. They should be evidence based and not exist ‘just in case’ and when there is not even a problem for it to solve. Compliance, based on properly constrained regulation will be fair for the complier, but possibly unsatisfying for regulators that can see scope for better. Regulation can provide a useful and even inspiring framework but it never sets out the optimal path for everyone to maximise safety. And regulations and codes can hardly contain the latest state of knowledge.

But if people are driven by regulators, overtly or subtly, to have a “compliance” culture then a tendency can grow to do only what the regulators instruct and grudgingly. Compliance risks closing minds and making us lazy because when we comply there can be tendencies to subcontract much of our thinking to someone else. We naturally presume rules, codes and standards are good, fair and wisely constructed and that can be wrong and dangerous.

My experience is that when compliance culture is too strong, many act as if regulations, codes and standards are akin to gospel; they presume that the authors (i.e. an unseen committee, the government, the brains-trust and so forth) have already worked out the path to optimal safety. The strong and caring personalities, brought up in a culture of compliance, step up to the plate and see to it that we shall all do what that authority instructs – and no less. Sometimes battles of will erupt that supersede sensibility and proper understanding of outcomes. And we might, due to laziness, ignorance or quiet resistance, fall into the unfortunate habit of doing not a millimetre more than instructed.

At the heart of compliance is mistrust. Like working with a bad subcontractor, when a counterpart can not be trusted the relationship tends toward dispute and micro-management and it gets expensive, time consuming and acrimonious for all. It is right to mistrust some people sometimes – but regulators sometimes give the impression they mistrust whole industries and the public all the time.

When there can be trust, better and freer and more productive relationships can develop and that can yield an important commodity; confidence. The heart of confidence is trust. Counterparties to a trusting relationship can more freely cooperate and within reason let each other get on with business in their own way. This has to be more efficient and productive. So how can we truly build more confidence and sensible, genuine trust regarding safety?

Can OHS regulation be built on the premise of inspiring and building trusting relationships for the majority? And when someone spoils the trust can the same regulation ramp up the micro-management and cost?

When we can get past the concept of just compliance; what the more enlightened regulators really seem to want; what the public, the employers and workers really want is “CONFIDENCE”. We are too accustomed to getting it through just compliance.

Regulators want to be confident that plant providers will provide the safest plant and that businesses and people use the safest practices. And they’d like to be confident that they all keep improving. Wouldn’t it be great to have that trust without having to check so often that people are complying? Or to flip that thought, given a regulator’s limited resources, wouldn’t it be great if they could maximise the safety bang for buck?

We all want to have more confidence that everyone we rely on for goods and services and safety are doing all they can practically do to maximise safety. We want others to go beyond mere compliance and we want them to maximise safety but we also don’t want it to cost too much. And we’d like to be more confident that we ourselves are doing all we can practically do to maximise safety.

We’d be naïve not to recognise there will be some that can not be inspired to do better let alone be trusted to do enough – and for them, harsh and costly compliance regimes that fairly contain or return their externalisations would be appropriate.

Confidence is the real outcome. Compliance is only the superficial part of it.

Compliance is a limited, often defensive reaction to an external prompt. Confidence building on the other hand involves reaction to external prompts but the response is less limited and is inherently proactive. It also responds to internal prompts. What habit is more productive and inspiring; defending our safety or celebrating and promoting our safety? Safety should not degenerate into a marketing exercise but it could better harness the part of the human psyche that makes us proud and proactive as well as reactive.

So instead of a culture that causes us to ask limited and less productive questions such as: “Have you complied?” I’d like to see regulation and practice that lay foundations for a culture that cause us all to ask more inspiring questions that people may actually go out of their way to answer well; “How can you make us more confident in your safety?”

That alternate culture, or to use a fancier word, paradigm, which incorporates and goes beyond compliance could be called “confidence assurance”.

13 thoughts on “Compliance or Confidence?”

  1. Thanks Tony,
    And Yossi, the only reason that these \’mates\’ have to risk their lives to save their mates is because \’someone\’ failed to accuratley assess and control the risk in the first place.
    There we have the situation that a human being (or beings) most likely took some shortcuts to minimise inputs and maximise outputs. Unfortunately, it cost them, and us, more in th elong run that they calculated.

  2. And yet, and yet….. how many times have I\’ve seen workers risk their lives to help mates in deep trouble, perhaps under a forklift?

    I\’ve seen all sorts of people in dire circumstances – regardless of class, creed, hierarchy, boss, worker or otherwise – have a go at great risk to themselves for people in deep trouble.

    I’m aware of workers and supervisors who crawled into a collapsed mine (against policy), at grave grave risk to themselves, to search for just possibly still-alive mates.

    We\’ve all seen attempts on our screens, during natural disasters, earthquakes and floods, to save a helpless and drowning creature, which then breathlessly clings to the rescuer. Despite all the cynicism, which I well understand and has been said before, we\’re a weird lot.

  3. Well said Les, a cynic after my own heart. If we don\’t have our efforts grounded in reality and continuing unarguable history of workplace injury as a starting point, then we are doomed to more of the same. Workers compensation and OHSW are inextricably linked and should be dealt with simultaneously \”cause and effect\” to leave one out of the equation dilutes the focus on the other to the detriment of the overall objective of creating better and safer working environments, with resultant improvement in the reduction of workplace injuries.

    I remain the Cynic and despair of ever seeing anything that actually shows substantial progress in injury reduction and workers compensation fairness.

    Unfortunately, this all relies on the legislators providing sensible legislation and realistic funding to promote, administer and enforce on an ongoing basis.

  4. I\’m tickled to laughter – the \”Reader\” appears to live in a utopian world where \’everyone\’ has everyone else\’s best interests at the heart of what they do. And everyone else rants that regualtion is the only way to get any standard of safety. But let\’s get real –
    The only reason that humanity needs laws and regulations of any sort is because we can\’t look beyond our our own needs and wants to see how our actions affect others. I\’m looking at the bigger picture of which OHS is small part. If we can\’t achieve utopia in the big picture there\’s no hope of achieving it in the small OHS one.
    We live in a capitalist society which is all about maximising gain for minimum input. And capitalism is atttempting to dominate the world to maximise opportunities for maximising gain.
    This concept pervades every aspect of our society. And NONE of us wants someone else to tell us how to live (maximise) our lives, spend our dollars, or our time.
    Hence we need laws and regulations so that we can at least manage to live together in some semblance of harmony.
    Regulations simply establish the standards that those in power (political, financial, whatever) are prepared to live with as constraints to maximising their own gain.
    So regualtions will always be \’bottom line\’ standards.
    And, as life experience tell us, humans are risk takers – how fast can I go before I get a speeding ticket? How long can I park in time limited parking space before I get a ticket? How little can I get away with in OHS? How quickly can I get the job done without gettig hurt.
    And when I get a ticket, why aren\’t the police chasing \’real\’ criminals instead of \’hitting me in the hip pocket\’ and interrupting my attempts at maximising my pleasure?
    In my experience, the only organisations that are willing to exceed these minimum standards are those with leaders (the guys who control the purse strings) that have humanitarian ideals as their primary motivation.
    Capitalism and humanitarianism are at odds. And \”money makes the world go \’round\”.
    Dream on \’Reader\’ but don\’t be surprised when your dreams fail to become reality.
    You may call me a Cyinc – but I believe I\’m arealist because that helps me to live in this \’self-obsessed\’ world.
    The one thing that keeps me \’banging my head against the wall\’ and working to improve OHS is that even the Berlin wall eventually came down. But gee, I sometimes think the best thing about banging my head is that one day I\’ll get to stop – and then it will feel good.

  5. Col, as I indicated in my response, I agree that compliance mentality is a major stumbling block to achieving a best practice H&S outcome. However, I disagree that the cause of the problem is poor regulation supported by an over officious regulator or that the solution is to reduce regulatory requirements and weaken the enforcement role of regulators because of some Utopian view of the industrial landscape.

    Compliance mentality is so prevalent not because businesses see no alternative but because they seek to do the minimum possible to minimise their liability when things go wrong. Why? To reduce the impact on the bottom line. For most businesses, introduction of injury prevention measures is seen as a cost and H&S practices that exceed regulatory requirements is seen as an unnecessary cost.

    I firmly believe that there will only be a move away from compliance mentality when the costs of failing to introduce good safety practices outweigh the costs of doing so.

  6. Kevin, I am talking about injury prevention, but using the statistics of workers compensation to take action in preventing further injury. A logical, direct and accurate method of getting to the coal face with clearly identified issues that can be fixed, while at the same time providing opportunity for employer employee education on safety and compliance responsibilities.

    We all know that OHS inspectorates are under resourced, by tackling the prevention by targeting LTI claims, surely this is much more effective use of resources ????

    Col\’s last comment is also on the money.

  7. For mine Dave, the writer is addressing, amongst other stuff, one of the big problems I come across and that\’s what I call \”compliance anxiety\”. Where the safety environment is screwed up, worrying about this or that compliance issue is \”shuffling deck chairs\”. It\’s about getting a punter to focus on integrating their business operational thinking in a way that has OHS fitting in sensibly; it\’s my job to worry about the compliance stuff.

  8. I have read this post I don\’t know how many times and I\’m still wondering what the author\’s point is and what reality it\’s grounded in.

    The opening paragraph asks \”Why do regulators want compliance anyway?\” – well by definition that\’s what Regulators do – they enforce (ensure compliance with) the regulations. If they did something different they wouldn\’t be regulators they\’d be something else. That is one of the problems globally, H&S Regulators are expected to fulfill contradictory roles – be warm and fuzzy in promoting and encouraging improved H&S standards and, at the same time, take a hard stand in enforcing the regulations.

    As the author expresses, regulations prescribe a minimum standard to try and ensure that workers are provided with basic protections against work related injury, illness and death. The transition from prescriptive to outcome based regulatory frameworks have attempted to provide employers with the scope to introduce higher levels of prevention should they wish to. Therein lies the problem … few people will seek to do any more than they have to. Not a day goes by when I don\’t have at least one debate about why a standard of safety is established and whether that standard is required by regulation in one form or another. And don\’t get me started about design engineers 🙂

    Regulations will never be able to define the \”optimal path for everyone to maximise safety\” because that path is different for every industry and business. Regulations are consequently generalised requirements whose method of implementation is left up to the individuals operating and working in individual workplaces to achieve the specified outcomes within their operational parameters. However, the constant and ongoing struggle to get even basic compliance that I and most of my colleagues working in the H&S field face makes achieving it a victory to be celebrated – getting something that even marginally exceeds it is cause for a holiday to be declared.

    If even the basic safety requirements required by current regulations had been complied with we would not be seeing the plethora of work related injuries, illnesses and deaths that Tony points out are immediately obvious from a cursory examination of workers compensation statistics. Read the transcripts of H&S related prosecutions; read the summaries of targeted areas of inspection by Regulatory Authorities; examine the comments of H&S professionals in numerous forums to see that these basic, minimum standards are not being achieved and then tell me that the regulations are failing to set a high enough standard.

    I\’m sure all \”Regulators want to be confident that plant providers will provide the safest plant and that businesses and people use the safest practices. And they’d like to be confident that they all keep improving.\” Unfortunately their experience leads them to the point that \”regulators sometimes give the impression they mistrust whole industries and the public all the time\”? After all, all they encounter is the failure to meet basic safety standards and all to frequently in situations where someone has died as a consequence. And yes \”it [would] be great to have that trust without having to check so often that people are complying?\” Unfortunately the Regulators\’ don\’t have the resource available to them to allow them to constantly check compliance, they are too busy dealing with the fallout that occurs because there is such a high level of non-compliance.

    While compliance mentality is a significant hurdle to achieving the safest possible workplaces it is not the fault of either the regulations or the Regulators. If the author is looking for someone to blame for the prevalence of a compliance mentality then whoever the author is need look no further than those involved in running and working in workplaces and having a rant at them rather than those who are at least trying (and sometimes succeeding) to make our workplaces safer places to be.

  9. What I like a lot about \”A reader\’s\” thoughts here is the writer has got to a core feature of what a mature OHS approach to safety is about. As the writer said, there obviously has to be the ability to give a bad performer a proper slappin\’, but without trust and engagement, OHS becomes that horrible thing of herding, hand-holding and patronising reminders to comply.

    The notion of \”respectful leadership\” is becoming popular in some management circles. It\’s a principle that is self-explanatory and sensible, but apparently lacking too often when it comes to OHS-World.

    col@finiohs.com

    1. Col, I agree but want to point out how refreshing it is to receive an article that makes its point without referring to \”leadership\”. Leadership can often impose expectations on another rather than empowering us to look at what we can.
      To my knowledge John F Kennedy never spoke about workplace safety but one of his most famous quotes supports some of the above article\’s points – \”ask not what your country can do for you — ask what you can do for your country.\”

  10. Try looking at injury statistics as a foundation for need. the proof is in the eating of the pudding.

    Most legislation is in place because of a proven need to protect workers from injury and we all need to remember that is genesis of why we do what we do.

    Improvement or other measurements are available by the comparison year on year of specific injury types by specific industries where compensation claims are made. The figures are real and the causes identified, therefore the answer is to fix the problem by ensuring a physical action is taken in all identified places of work along with appropriate notification to all concerned about compliance and responsibility.

    A work place is either compliant or non compliant and any workers compensation claim that ends up with lost time needs to be inspected, that will give an incentive to employers to provide a safe working environment and ensure that employees remain vigilant.

    Insofar as trust is concerned, the industrial relations field is littered with broken promises and dreams so I doubt trust is anything that can be relied upon.

    1. Tony, I think the write is discussing the prevention of injury and not the compensation for injury and in that context I think the writer\’s contribution is very worthwhile.

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