Need to focus on safety first and compliance later

Several years ago, a WorkSafe Victorian executive saw “reasonably practicable” as a major legal advantage in safety regulation. It is of legal benefit, but does it make workplaces safer? Does it make it easier to manage workplace safety? In this time of economic austerity and the pursuit of red tape reductions, can the “reasonably practicable” elements of Australia safety law be an impediment to safety management?

Cover of SAW News Oz 089 rawEmployers have always seen legislative compliance as the equivalent of being safe. This position seems sensible because if the safety police of the OHS regulator leave you alone after a site visit and say you are compliant, your workplace must be safe. The safety experts have visited and found nothing wrong, it is logical to then assume safety.

Here’s a radical thought – compliance ≠ safety. Never has and never will.

This will be a shock for many businesses, and even a shock for many OHS regulators, because so much workplace safety strategy is based a flawed logic that “if I comply with workplace safety laws, I am safe”. Regardless of OHS laws, there is a moral social duty to look after the safety and welfare of one’s workers and oneself. When values become codified in law, the law becomes the value, and the moral duty becomes historical.

This is important to remember when considering the pursuit of red tape reductions. Much of the reduction is being sought, particularly here in Victoria, from regulatory agencies in the first instance. It is aimed at reducing the flow-on cost of compliance and will have no positive impact on workplace safety. If a company, particularly a small business is able to save money through the removal of a licence fee or other government charge, does anyone believe that any of that saving will be spent on safety? Savings are often reinvested or distributed to shareholders or spent on production processes to increase output. Changes to the “cost of compliance” maintains the focus on compliance and not on achieving a safe workplace.

In previous decades of prescriptive OHS laws, employers sought flexibility to achieve compliance in ways that acknowledged the differences in each workplace and industry. In industrial relations this was often applied through “structural efficiency principles”. The era of “reasonably practicable” began. Curiously around the same time, businesses became more vocal on their grumblings over the cost of compliance. The flexibility they requested made it more difficult to meet a compliance benchmark that was not universally applied. The consequences of that flexibility has been labelled as excessive red tape, and businesses want it reduced.

Non-regulatory OHS change

Here’s another radical thought. Aim to achieve a safe workplace and you will find that you also comply with the safety laws.

Also, your workers will be happier because they see you investing in their safety and mental welfare. Their perception of the value of their work improves, they may become happy and this happiness may manifest in increased productivity because people enjoy what they are doing in a company that looks after them.

Oh and you will be able to achieve this without lawyers because lawyers are part of the reactive process of failure and damage. Failure and damage is minimised or eliminated because healthy, happy workers look after each other. Safety becomes part of their working life instead of a legislative imposition. No retainers for a law firm, there’s a big cost saving and a reduction in the associated red tape. Who would have thought?

The pursuit of red tape reduction is being imposed on government agencies by political leaders but it was only in 2009 when some Australian OHS regulators saw the importance of reducing red tape and began the process because it would benefit both businesses and workers. The ideology behind the national harmonisation of OHS laws in Australia was already on show. The opportunities identified by the Victorian and New South Wales politicians occurred through State-based cooperation and almost all of the aims listed in the Safety At Work Bulletin article came to reality.

This article may read as a bit of a rant but is borne of frustration when safety professionals, regulators and others speak about workplace safety when they are really meaning compliance, lawyers are often the worst offenders. The semantics may seem pedantic but words reveal beliefs, ideologies and misperceptions.

Unions are often portrayed as being a bit loony or obsessed when they discuss safety but these criticisms often display the safety misunderstandings of the critic. Trade unions can be weird but they argue on the importance of safety, regardless of compliance. They believe, as I do, that focusing on safety first will almost always include compliance, but that focusing only on compliance does not ensure safety.

Kevin Jones

reservoir, victoria, australia
Categories business, government, health, law, lawyers, OHS, productivity, safety, small business, Uncategorized, union

10 thoughts on “Need to focus on safety first and compliance later”

  1. Kevin, you are so right, Safety is more than compliance. Compliance is one component in the implementation of effective safety and it is not the first and most important component. A common understanding of what \’safety\’ means is a starting component. Safety is more than the absence of illness or injury. It is the ability to prevent as many as practicable safety incidents occurring, it is the ability to prevent occurrences from becoming worse and it is the ability to recover from safety incidents with as little negative impact as possible. The following components are accountability and with that goes competence and knowledge, then the identification of those positions that are safety-critical and how they are safety-critical, followed by identification and either elimination or control of the hazards that are associated with work processes, followed by what has to be changed to help an injured employee return to work

  2. Malcolm,
    You\’re quite right – If my approach HAD been applied by all responsible parties, even thre of these four incidents could have been foreseen and prevented. The crane malfunction was not foreseeable, neither could we replicate what happened as it had been reported by the operator.
    Unfortunately, as we all know, one WHS person cannot be everywhere all the time, so until we do the education stuff, making EVERYONE aware of, and competent in application of, the process, some issues may continue to be missed.
    But so long as we are applying the systematic approach and so long as we learn from those missed issues, we will continue to improve both compliance and safety.
    In the entanglement case, (my current employer has some 35 sites) WorkCover inspectors had been involved in assessing and recommending safety controls during the comissioning phase of the machine in question. Based on information provided to them they \’allowed\’ the unprotected area to go unguarded. (I believe this also contributed to limited adverse action).
    However, the point is that the manager at the site had made significant efforts to comply and the machine had run for some 3 years without incident before a supervisory team member took a short cut and failed to apply the documented isolation procedure for the area he entered.
    Part of WorkCovers investigation identified that all reasonable steps had been taken, including training and accountability documentation for the injured person – he knew the procedure but failed to apply it in the instance that injured him.
    And I believe from this that if we properly applied \’compliance\’ with the spirit of the hierarchy of controls we would not have relied on an isolation procedure (soft control) but would have implemented an interlocked guard (hard control) from the start.
    We have examined what happened and installed an interlocked guard to prevent recurrences.
    Finally, your four brief suggestions for how these incidents could have been foreseen simply support my point that systematic management of \’compliance\’ approaches would have made the plants safer.

    I\’m not comfortable that you call supervisors and workers \’stupid\’ just because they do might cause accidents and suffer injuries.
    According to Wikipedia \’Stupidity is a lack of intelligence, understanding, reason, wit, or sense\’.
    A person not having relevant information or knowledge, or failing to apply a \’standard practice\’ for unexplored reasons does not, in my opinion equate to stupid.
    Similarly a person making a particular choice between 2 conflicting choices (my job? or my life?) may be ill advised but still doesn\’t fit the defintion above.
    As for your last point for stronger emphasis on where the buck stops – the harmonised legislation has made that very plain. Though for mine it was a step backwards from the previous NSW standard.
    Whilst an incident in and of itself is not evidence that an employer has breached their obligation to ensure safety, it\’s a strong indicator that probably not enough had been done to prevent the injury.
    The buck stops with the employer (PCBU) who has the control of resources and has the most to gain from the human resource at risk. Whereas the worker has the most to lose and least control over their situation

  3. Andrea the whole debate on safety vs profit is difficult to discuss and almost impossible to resolve but, as I have said, in other articles, the debate can be part of the current productivity discussions occurring currently in Australia. Few workplace safety advocates are knowledgeable on economics but that should not stop us for entering the debate, as I hope to do through SafetyAtWorkBlog articles in the coming months.

  4. Les, I agree that the Work Health and Safety laws are a marked step from previous OHS laws, particularly in the area of Due Diligence. The Due Diligence obligation is proving to be a major change agent in the approach of senior executives and boards to OHS. Not as much, perhaps, as Industrial Manslaughter promised a decade ago, but more seems to be changing with a carrot than the stick.

    I think it is also significant that the new Rail Safety Act being introduced gradually in most Australian States has a legislative obligation to operate a \”safety culture\”. How that will be assessed or policed will be fascinating, to take Tony\’s perspective above.

  5. Tony, modern OHS laws have always placed the principle responsibiliity on the employer. Expecting an OHS inspectorate to improve safety is never going to happen as the inspectorate only ever refers to compliance.

    I agree with Yossi\’s call for a new approach but we must understand the flaws in the existing approach, flaws which this article tried to discuss.

  6. Thank you Kevin …

    This is precisely the message I have been sharing for years in my workplace presentation – Reflections.

    Safety has a lot less to do with safety laws, procedures and systems than it does about how we perceive its value. What is a life worth? Is there a dollar value or is it about family and children and futures? If there is a genuine \’will\’ then the way to do it is a fairly easy path to find. If change is brought about by force, one tends to do only what is required – and that is often not enough – the mindset is wrong.

    It\’s rather interesting how those who have experienced trauma and loss often know all this. Books and pages of academic material will never replace what we are all naturally gifted with. Furthermore, this does not come dripping in cost and expensive procedure. It just needs to be delivered with heart and conviction. It requires directors and management to stand by its commitment – because talking the talk is not the same as walking the walk.

    The other side of that coin is of course the competition — human vs profit. Our fair trading system is shot to pieces. The WTO and our own governments conveniently ignore the terrible global abuse of human (worker) rights – as a result we can\’t compete….oh really who cares? It\’s the blind leading the blind.

  7. Les, if you had applied your own argument none of those incidents would have occurred – Assessing plant and equipment for hazards and risks – surely the pallet jack incident could have been foreseen! chain and sprocket incident – simple guarding issue? Machine maintenance and checking electrical supply regularly should have avoided the electric shock! Machine maintenance and testing would have avoided the ‘malfunction’ As has been said a million times, everyone looks at the same issue differently! I too have been in the ‘game’ over 30 years and it still amazes me how stupid people, management and employees, can be and they all quote ‘common sense’ when it goes wrong, I’m 60 and still can’t find a definition for that one. While I can see both sides of the argument, there does need to be a shift in the way everyone deals with safety in the workplace, there needs to be a stronger emphasis on where the ‘buck’ stops and an acceptance that it is ‘everyone’s’ responsibility.

  8. Hi Kevin,
    I\’m not convinced that Compliance ≠ Safety in all cases. However regulator inspection may not truly assess Safety unless they explore the full range of initiatives taken by organisations in the interestes of safety.

    I base my position on this: If you take the broad view of section 19 of the harmonised act, and the subordinate responsibility sections following, the employer (PCBU) is to ensure, so far as is reasonably practicable, the safety of (subsection 1) workers and (subsection 2) others.
    Everything esle following this responisbility and in the regs are informative statements providing examples and minimum standards.
    So for instance, subsection (3) includes, but does not limit, aspects of the PCBU business that MUST be considered in ensuring safety.
    Then Part 5 establishes the grounds for consultation on matters affecting persons in the workplace.

    The requirements set out in the subordinate regulation simply provide for more detailed minimum standards – Eg: chapter 5 – specific requirements for establishing consultation, and Chapter 3 Part 3.1 specific requirements to establish an approach to risk management that must be followed by all PCBUs.

    All sections following this, regarding specific risks, again only provide for minimum standards and SHOULD NOT be considered as the ONLY hazards that must be adressed.

    Hence a true compliance model would:
    1: establish consultation;
    2: establish risk management processes and how they are to applied at the worksite;
    3: assess the sections of the regualtion following Chapter 3 Part 3.1, and assess the relevant (WorkCover approved) Codes of Practice (applicable across all affected industries and organisations), to identify applicable issues and minimum standards for addressing them at specific worksites,
    4: assess the specifics of
    a: the industry and
    b: the organisaiton and
    c: the worksite
    for hazards not otherwise idenitfied in the regulation. NOTE: This is where industry specific codes of practice and Australian Standards play a large part in meeting minimum standards. But there must also be organisation (and even worksite) specific procedures for addressing hazards specific to the organisaiton and/or worksite that are not addressed by any of the Act or subordinate documents listed here.

    I agree that simple compliance with JUST the requirements for consultation and hazards listed in the regulation ≠ compliance with the broader requirements of the act.

    But compliance with the broader requirments of the act, following the 4 layers I\’ve set out = compliance, and should go a long way to = Safety as well.

    I\’ve found that this approach has served me well for over 15 years. In 20+ years I have been involved with multiple industries and organisations and, in that time, have only had 4 incidents to date that needed to be reported to WorkCover and have never had stronger adverse action than Improvement Notices in 2 of those incidents.
    One involved an electric, ride-on, pallet jack reversing off the side of a tailgate loader, resulted in the battery pack landing on the knees of the operator.
    The other involved entanglement in a chain and sprocket drive resulting in amputation of two finger tips.
    The other two reported incidents involved:
    1: an electric shock due to an abraded power cord making a small machine \’live\’.
    2: A crane malfunction resulted in a crucible of molten iron tipped over a foundry floor.

    And in my current role (2 1/4 years now) this approach has achieved a 60% reduction in average cost of claims and approximately 45% reduction in compensable injuries.

    So from this, seeking to meet compliance has, in the main, = improved safety.

  9. Kevin , there is a flaw in your argument; \”Employers have always seen legislative compliance as the equivalent of being safe. This position seems sensible because if the safety police of the OHS regulator leave you alone after a site visit and say you are compliant, your workplace must be safe. The safety experts have visited and found nothing wrong, it is logical to then assume safety.\” this assumes that businesses are inspected by the authorities when the facts are, it is a rarity for a business to be proactively inspected. In SA alone there are approximately 75,000 small businesses and around 100 Safework inspectors covering more than just safety in the workplace, the maths give you the answer.

    You can put any amount of legislation in place but if you don\’t fund the \”policing\” even at the most basic level safety is dead in the water.

    As Yossi Berger has said there needs to be completely new shift in strategy to really float the safety boat. We have researched the topic to death and chewed the safety bone to the marrow without much result so the emphasis must now shift to an entirely different model that is enthusiastically engaged by employers – expend our efforts in that area and results will flow \” Its a money matter \”

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