How can one learn from OHS mistakes if those mistakes are hidden?

Occupational health and safety (OHS) regulatory agencies have existed for decades, originally with an enforcement role but increasingly aimed to prevention and education.  It is fair to say the “2nd generation” of OHS regulators in Australia appeared in the 1980s.  It is also fair to expect to be able to readily access the corporate memory and prosecutorial activity of the regulators, particularly since the growth in the Internet. Very recently WorkSafe Victoria reviewed its online database of OHS prosecutions excising prosecution summaries prior to 2012.  This decision is a major weakening of the “state of knowledge” about workplace safety in this State, a decision that some have described as outrageous.  How can one learn from mistakes if those mistakes are not made available?

Prosecution Summary Database

Prosecution summaries do not provide a great deal of information by their nature but what they did was

• provide an outline of the cause on a workplace incident;
• list who the employer/employee/offender was who had responsibility for workplace health and safety;
• state the financial, or other, penalty awarded by the Courts.

In this new world of Work Health and Safety (WHS) laws and due diligence, it also provided an easy way of verifying the OHS legal history of whoever was tendering or applying for work and contracts.

As SafetyAtWorkBlog has mentioned previously, not all Court decisions on workplace safety offences are reported.  The WorkSafe database was one of the few sources of Magistrate Court decisions on OHS breaches.  Now, without physically attending a Court hearing, decisions of these Courts may occur without anyone reporting them.

Steve Bell, a Senior Associate at Herbert Smith Freehills told SafetyAtWorkBlog that:

“The prosecution results database provided duty-holders and their legal teams with an invaluable database of the prosecutions of, and penalties imposed on, businesses in Victoria.  It provided businesses with a good understanding of the likely impact of a breach of health and safety laws, and struck me as a central plank in the general deterrence which can be afforded by such prosecutions.

To reduce the history of prosecutions to a mere 12 months will significantly curtail the benefit afforded by the database, and generally reduce the state of knowledge in Victoria about safety matters. It seems to me to be entirely inconsistent with the corporate objectives of a safety regulator.

Many health and safety matters are determined in the Magistrates’ Court, and so by removing the existing database this may mean that the only reliable source of truth regarding those prosecutions has now been withdrawn.”

WorkSafe Victoria was approached for comment on the changes to the database and the response was:

“In 2012, we became aware that information contained about prosecutions on our website was not complete.  Once identified, the page with the information on prosecution results was removed until it could be rectified.

The new webpage was relaunched this week and provides information on all successful prosecutions backdated to the start of 2012.  While it does not have the same functionality as the obsolete webpage, the updated webpage is accurate, which has always been our key priority.

We are always looking at ways to improve the WorkSafe website and feedback from employers, workers and other members of the community will be considered in any future upgrade.”

Without knowing the incompleteness and inaccuracies specifically it is difficult to argue.  However the removal of a search capacity for the database is a mistake as it increases the time needed to look manually for the information needed, and increased productivity and decreasing red tape is becoming a hallmark of the Victorian Government.  For instance, if one was to wish to search for all prosecutions involving machine guarding, the WorkSafe Victoria database does not help.

To provide some indication of the size of the information change, below is the text of current a prosecution summary of Ranges Tree Services Pty Ltd:

“On 8 August 2011, a worker was injured whilst tree lopping. On 7 December 2012, Ranges Tree Services Pty Ltd was convicted and fined $15,000 and ordered to pay costs in the sum of $4,409.00. (Ringwood Magistrates’ Court)”

Here is a prosecution summary from 2002 concerning a Stephen Booth:

“Date of Offence: 15 November 2001
Date of Prosecution: 31 October 2002 at Mildura Magistrates’ Court
Magistrate: Raffaele Barberio
Plea: Guilty

A mobile crane on hire to the defendant tipped over while removing a palm tree from a Mildura caravan park. The crane boom collapsed to the ground, narrowly missing a cabin and a toilet block.

The crane operator suffered broken ribs when he fell from the tipping crane. There was no dogman present at the time of the lift because Mr Booth had told the hiring company, Mildura Crane Hire Pty Ltd, that he was experienced in the removal of palm trees and did not require a dogman. The crane operator, Robert Twaddle, did not check that Mr Booth held a certificate of competency as a dogman.

Breach of the Occupational Health and Safety Act 1985, section 22.

The magistrate said there was no reason why health and safety requirements in the rural community should be less than in the city. The defendant’s excuses were insufficient to absolve him.

Result: Convicted and fined $7,500 plus $1,720 costs.” (page 12)

It is clear to determine which summary provides the most useful information on hazard control and consequences of poor management.

The 2002 text comes from the Prosecutions 2002 publication still available on the WorkSafe site under Publications. Hard/PDF copies of these reports remain available but only for the years 1999-2006 (download them all while you can). In the 2002 publication the then Executive Director of WorkSafe Victoria, John Merritt, explained the purpose of the summaries.

“Since most of the cases summarised in this publication are unreported, Prosecutions 2002 is an important reference for employers, employer associations, employees, health and safety representatives, trade unions, the judiciary, lawyers, OHS professionals and the wider community.

By detailing the consequences of unsafe work practices and fraud, we hope that Prosecutions 2002 will help increase understanding of the importance of protecting people in the workplace.” (page 1) [emphasis added]

In 2003, Merritt wrote:

“By publicising the consequences of unsafe work practices and fraud, we hope that Prosecutions 2003 will help increase understanding of the importance of protecting people in the workplace and serve as a powerful deterrent for those who still choose to ignore their legislative obligations.” (page 1, link added)

In the last of the publications, 2006, Merritt makes specific reference to the searchability of the database:

“Along with the new online searchable prosecutions database on WorkSafe’s website (worksafe.vic.gov.au), we hope Prosecutions 2006 will further educate the community of the commercial and personal consequences of breaching Victoria’s workers’ compensation and workplace health and safety laws.” (page 1, link added)

It has to be acknowledged that none of the OHS regulators are as good as they could be in supporting the state of knowledge on OHS prosecutions.

Workcover NSW has limited searchable prosecution data and no summary publications.

Workplace Health and Safety Queensland has prosecution summaries for the previous 5 years and very good searchable database but only over the same period.

According to the Prosecutions Publishing Policy of SafeWorkSA, prosecutions will be listed on their website but only if “a finding of guilt or conviction” (page 2).  Prosecutions matching this criteria are listed on the website back as far as 1988 and are included in the search option on the main page.  Such a publishing policy should be included for all OHS regulatory websites but especially when change is to be undertaken, as in WorkSafe Victoria’s case.

WorkSafe WA also only publishes successful prosecutions.  Its list extends mainly to 1997 with a similar level of detail to what was previously available in Victoria but occasionally a large amount of detail.  The database has a good search capacity.

It has been suggested that the new improved prosecutions summaries for Victoria will follow some of the other States by only including successful prosecutions.

Privacy & Due Diligence

Although WorkSafe did not mention this matter, there is an increased concern in the community about privacy, particularly of former offences.  It may be the case that WorkSafe has undertaken changes to remove acquittals or names at the request of those who have served their time or paid their dues.  If this is the case, an explanation for the database changes should be included on the website, perhaps through a Prosecutions Publishing Policy.

The redaction of information and names creates a problem for companies seeking to satisfy their due diligence obligations.  It is common, when seeking suppliers to ask, whether they have been prosecuted by the OHS regulator for OHS breaches.  In Victoria, for incidents between 2007 and 2011, it will not be possible to verify the applicant’s response as it once was.  Perhaps in the future, the question for Expression of Interests should be have you been prosecuted by WorkSafe successfully?  It is doubtful that a simple “No” response would meet the due diligence obligations.

Deterrence, Protection, Evidence and Prevention

This article has focused principally on the deficiencies of WorkSafe Victoria’s prosecutions database.  Any change of information being made to the public by government and agencies needs to be explained.  Why was the change needed? Can the same level of information be sourced elsewhere?  Does the change continue to support the corporate objectives and, some would say, legislative obligations, particularly in areas where public health and safety is involved?  The quote from WorkSafe Victoria above is the only information available on the change/”upgrade” and that came in response to a media query.

The most effective way to prevent illness and injury is to make available information on previous failures.  If it is true that we learn by mistakes, we must know about the mistakes or else the mistakes will recur as new people enter the workforce and business.

Michael Tooma, a strong advocate on OHS Due Diligence even before it became a legislative requirement  has listed the six elements of due diligence under the Work Health and Safety Act.  The first relates directly to an OHS state of knowledge and this knowledge:

“…. would be… knowledge of the theory and practice of safety leadership and safety culture; knowledge of their legal obligations, the company’s legal obligations and the due diligence requirements; and knowledge of risk management, incident investigation and auditing methodology.” (page 26)

WorkSafe Victoria’s actions restrict our access to that data and knowledge and impede our capacity to improve safety, to minimise risk and to communicate information of work hazards to others.  Corporate objectives of a government agency can change but it is hard to argue against the aims and statements made by WorkSafe Victoria’s previous Executive Director last decade.  Prosecutions data can:

“…serve as a powerful deterrent for those who still choose to ignore their legislative obligations,” and

“… will help increase understanding of the importance of protecting people in the workplace”.

These aims are not even a decade old and yet they appear to be out of fashion.

Kevin Jones