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?
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.
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.