Col Finnie, formerly WorkSafe Victoria’s Principal Legislation Officer, looks at what the notion of individual accountability might look like if it was incorporated in the Work Health and Safety Bill, all done with his tongue firmly jammed in his cheek
It’s a good thing new perspectives about getting Occupational Health and Safety (OHS) right are tossed around. We love that sort of thing in OHS-World. But this sort of stuff, that used to be called “blue sky thinking”, needs the next step: head out of the clouds, feet on the ground and working out whether that ostensibly good idea will actually work, how it will work, and what will be the consequences. That reality-check can have that ostensibly interesting notion turn into no more than a puff of an idea; I think individual accountability is like that.
It seems that individual accountability is being touted as a contemporary “issue” for OHS. The context of the tout would appear to be that OHS will be better if everyone takes more direct responsibility for OHS in the workplace, i.e. everyone was more accountable for “how things are done” around a workplace. And yep, accountability and responsibility are different things, but not by much; clearly ya can’t be held accountable for stuff in the absence of any responsibility for that stuff at all. (The Macquarie Dictionary essentially treats the 2 terms as good as synonyms.) Of course good OHS happens when everyone accepts some degree of accountability, but when you talk about “individual” accountability it smells to me like it’s a notion that also about dispersing liability: spread it around the workplace, some will stick and maybe that will improve OHS performance.
I decided to look at what would be needed to get individual accountability embedded in OHS law. But, the first logic step is, why do you have to change the law?
Mainly because it’s pretty obvious that individual accountability, as a notion applicable to everyone in the workplace, isn’t what all existing OHS laws currently say, and certainly isn’t what the WHS Bill says. Some may debate whether the law is the acid-test of whether a social policy notion “has legs”, but generally speaking, that’s how things work: you want a social policy to have a concrete shape, it should be capable of being expressed in law.
OK, let’s go through the real-world basic steps to doing a first crack at amending the law. And let’s just use the WHS Bill for the exercise. Jurisdictions may or may not be taking it up in full by January 2012, but it’s good enough for the purpose of this article. This might take a while, probably best you go and grab a cuppa first….
Once you’ve decided an amendment to the law is needed, the first key step is going to the Objects of that law; ya can’t look for amendments outside the scope the Parliament gave the principal Act.
So we go to Clause 3 of the WHS Bill (the Objects bit), and we see the Clause 3(1) may well be OK as is to include the principle of individual accountability. It’s not a “snug” fit; but we have a bigger problem with subclause (2), and we may well be able to sort out the absence of a snug fit in subclause (1) with one “tweak” for the whole clause.
Subclause (2) causes a very specific problem. It’s a provision that gives a context for the duties under the Bill. That provision says:
“ (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given [my emphasis] the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work [or from specified types of substances or plant] as is reasonably practicable.”
That reference to safety being “given” messes up the notion of individual accountability a bit, because it covers that principle that has been around for about a century that the employer has a “non delegable” duty to keep workers safe. No worries. Let’s give it a tweak, not much, just a nudge so we can deal with the other stuff. What about just saying: “…regard must be had to the principle that workers and other persons should have the opportunity to have access to the highest level of protection…” etc etc? It’s not a perfect work-around, but it gives us some “drafting breathing space” for the other bits. At very least, it gives the notion of individual accountability a bit more room to move in the law. And we ain’t finished yet, a few more tweaks and we should be able to nail it.
We have another important drafting principle we have to take into account to get the law to do what we want; and that’s consistency with the “scheme” of the law.
We must be consistent with the Objects of the law (which we seem to have pretty well sorted), but we also have to be consistent with the general scope of the balance of the duties in the Act. The solicitor in the film The Castle called it the “vibe of the Act”; good phrase, I used it a lot as the substitute for “scheme”.
Now this is where the notion of individual accountability creates a whole bunch of interesting effects.
Given the all that stuff that has gone before that lead to a generally accepted principle that it’s the employer who determines what work will be done, how it will be done, how long it should take and what has to accompany the work task to get it done, we have found ourselves with OHS laws that have a clear “vibe” that the employer has all the big duties, i.e. is accountable for a safe workplace; the WHS Bill is no different. But with the Objects sorted, lets look at the next drafting tweak to embed individual accountability in that Bill by shifting the vibe of the Bill. For simplicities sake let’s just look at clause 19 of the WHS Bill (the big duty bit for “a person conducting a business or undertaking”, with the need to use that ugly acronym PCBU)..
“19. Primary duty of care.
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”
Now, as a law drafting rule-of-thumb, when playing with an existing law or draft, you try and minimise the tweaking of existing bits if you can possibly avoid it. We have to be clear about intent of course, but that can be done with “qualifying” subsequent sub-sections.
And we have to remember that we also have a general obligation to stay fair and reasonable with the law. Fairness and reasonableness is fundamental for a whole bunch of reasons, not the least being, you move away from it and you could be leaving your Minister open for a public reaming – and they don’t like that.
We have sorted the issue of the Objects of the Act, or in this case the Bill: it’s fairness and reasonableness that causes the drafting complications. Clearly, we can’t have the PCBU holding all the big duties if individual accountability for workplace safety is our drafting theme; it wouldn’t be fair or reasonable. Hmmm…lets see. What about a new subclause that looks a bit like this?:
“(2A) The duties of a PCBU in subsections (1) and (2) are limited to the extent that the PCBU has specifically allocated individual accountability to a worker for any task , function or action or any group of tasks, functions or actions carried out at the business or undertaking.”
We can now stand back and squint at that new provision. Yes, it seems about right. But it’s obvious we are potentially heading down a “legislative cul-de-sac”: that’s when you have a policy instruction that, when put into draft law form, sends you down a path where there are so many compliance and enforcement problems you are at a dead-end, no connections with related stuff in the law.
And the obvious problem with our new subclause (2A) is that it’s obviously not fair or reasonable to absolve a PCBU from the big duty to have a safe workplace by simply saying the worker has been specifically allocated individual accountability. Again, no problems, we are in the luxurious position of being able to tap out a whole new set of rules to suit the circumstances.
One good trick for avoiding a legislative cul-de-sac is to go back to a check of the basics. What are the basics in this exercise?
- The history of paid work tells us that it’s the person who is in control of the work that has to be done and how it’s done who pulls the main strings that lead to the work being relatively safe to perform;
- A person can’t “pull the main strings” without the authority to do so;
- A duty or obligation under the law has to be as easy as possible to understand, and the course of how to comply (and enforce) needs to be laid out logically.
We can see that the new subclause (2A) does leave the PCBU the option to allocate individual accountability, but once the decision has been made to specifically allocate individual accountability there has to be more authority given to the worker. Consultation won’t be enough. Consultation always comes with the premise that information is exchanged, opinions obtained, but, ultimately, one party in the consultation exercise is “authorised” to make a decision. Now, relying on consultation ain’t gunna work for subclause (2A). Individual accountability is individual accountability; for accountability to be fair and reasonable the authority to act must be present. But, as usual, there is always a way out.
Here is what I think will avoid the legislative cul-de-sac. It’s another new subclause:
“(2B) Where a PCBU chooses to specifically allocate individual accountability under subclause (2A) the nature of the task , function or action and the methods for carrying out the task, function or action allocated will be determined in collaboration between the PCBU and the worker or group of workers.”
Hmm…so it looks like we’ve found out that if you wanna talk about individual accountability in the law, you will have to provide for workers to have a direct say in what is done and how it’s done, i.e. give them authority to act.
What was that BOOM you ask? That was the sound of bursting through a space-time continuum and landing back in the 1970’s world of…Industrial Democracy! Ooops. Back to the drawing board.
Col Finnie was WorkSafe Victoria’s Principal Legislation Officer (OHS) from 1989 – 2000 he now operates his own OHS advisory and training business – fini:OHS pty ltd. Col has contributed previous articles to SafetyAtWorkBlog.
 No correspondence will be entered into over the differences between “accountable” and “responsibility”. Basic legal interpretation: If ya haven’t provided a specific definition for a term in ya law, you rely on an authoritative dictionary for the definition. And the Macquarie is increasingly being used as the authoritative dictionary in Oz courts.