Government must restructure to address the evolution of OHS

The UK government’s Health & Safety Executive is continuously countering poor decisions of local government that are being “blamed” on health and safety.  Recently the Wimbledon tennis open joined the club of misrepresenting risk decisions as health and safety.

England has a unique tabloid journalism that has generated substantial confusion on the role and application of occupational health and safety laws.  Most of the decisions being referred to as health and safety are really public liability concerns and this is where the risk management discipline enters the issue.  Occupational Health and Safety has enlisted the risk management principles to provide a structure for business to assess risk, costs and benefits of working safely.  However this has only worked when there was a clear delineation of workplace.

Over many years, OHS legislation has been allowed to broaden its remit from the shopfloor and factory fence to include those entering a workplace and visitors.  It then grew to include the impacts that any work activity may be having on others.

In Australia, the new definition of a workplace is anywhere where work is undertaken.  The OHS tentacles have penetrated all physical areas of society, although he police force has been struggling with this balance for years.  There is nothing occupational about OHS anymore.  In fact Australia will be dropping “occupational” from its Work Health and Safety legislation from 1 January 2012.  There have been sound reasons for this expansion but we now have to live with the consequences.

Public liability has always been an unregulated element of insurance.  Most countries do not have a government agency that covers injuries to the public.  The public has relied on health insurance or public health care, wherever applicable.  Occasionally it can access compensation from local councils for injuries and falls from council-controlled properties but this has operated on (non-workplace) risk management and risk insurance.  Health and safety agencies have felt the need to cover this unregulated area through the mechanism of OHS law, a strategy that is now showing how poorly OHS law fits.

To respond to how risk control needs have evolved in western society over the last twenty years government needs to undertake a serious restructure of its agencies and authorities to reflect the social reality.  There have been suggestions in Australia for OHS to move into the control of the Department of Health but the takeover never sat well.  An amalgamation and transformation makes more sense.

A quick example of occupational and social anomalies can be seen in legionella risks where the health authorities investigate cases which usually originate from workplaces.  Asbestos is generated exclusively by workplaces and for work activities but the health consequences are handled outside of the usual workers’ compensation processes.  The anomalies could also include public health threats such as swine flu where work-related exposures are crucial and work-related control measures are required.  Psychosocial risks of stress, bullying, depression and others have always had an uneasy fit in OHS legislation and court cases seem to be increasingly taking the resolution of these hazards outside OHS laws into discrimination, unfair dismissals and harassment.

If modern society expects governments to address a broad range of health and safety risks, it is difficult to see how expectations can be met from a silo structure of government agencies that operate under a rigid structure of legislative regimes.  An integrated approach is required but the option of relying on cross-agency collaboration has passed and a restructure of government agencies needs to be seriously considered.

The UK Government, under Prime Minister David Cameron, has a “reduce red tape” campaign which is currently addressing health and safety laws and legislation (the comments are enlightening).  This campaign misses the fundamental point that it is not that workplaces are over-regulated on health and safety but that they are regulated through a mess of different regulatory bodies, agencies, and tribunals.  Perhaps Cameron should not be trying to reduce the regulatory burden but instead restructure the administration of health and safety to reflect the interconnectedness of injury and illness and to reflect the community’s expectations.

It seems that many who criticise the “nanny state” are often those who have minimal contact with government social services or who understand the economic, political and ideological origins of many of the laws that are being complained about.  The Lord Robens reforms in the United Kingdom are over forty years ago and beyond the memory of many in business and many workers.  Robens introduced OHS regulatory reform, partly,  because prescriptive legislation was becoming burdensome of workers, business and government.  The need for prescriptive legislation came from those who had control of the workplace, the employers, not giving risks and hazards sufficient attention.  Workers continued to be injured and to die to an extent that the government needed to intervene.  It was responding to neglect.

The Robens reforms became the status quo and have evolved to allow a great deal of flexibility for corporate decision-makers.  A flexibility that the company owners and risk managers felt needed to be underpinned by insurance, a cautious economic move in many ways.  However that flexibility has allowed insurance to become a dominant consideration in the way businesses operate, local governments decide and in other areas of responsibility.  In consultation with some companies the initial thought is “how can we insure against the risk” rather than “how can we prevent the hazard”.

The Health & Safety Executive in England is battling on (some would say banging its head against a brick wall) against the continuous articles that misrepresent public liability risks as OHS.  It doesn’t seem to be gaining traction and it is difficult to see it doing so during the Red Tape Challenge.  The HSE has no option but to participate with the Prime Minister’s campaign but this participation implies that OHS is part of the red tape “problem” and it is not necessarily the case.

Too many government OHS reform programs fail to identify underlying factors.  The analyses are too often shallow and serve political ends.  The application and administration of OHS legislation needs a thorough revamp across government.  “Whole of government” strategies may sound clichéd but there is strong justification for this approach if work-related injuries and deaths are to be reduced.

Kevin Jones