Focus on Safety and compliance will come

Everyone wants clarity.  We want the comfort of knowing we are doing the right thing or that we are meeting the targets we and others set.  Workplace safety is no different but it has been complicated to an extent that clarity is unachievable and so uncertainty has come to dominate.

Occupational health and safety (OHS) consultants are often asked by business, small business in particular, “just tell us how to comply”.  Once upon a time this could be done but now the best a consultant can do is say something like “I reckon you’ll be okay, ……. if you follow through with the commitments needed, and keep your state of knowledge up to date, and take out as many liability insurances as you can, and become a member of an industry association ….and……..and…..”

The cult of “reasonably practicable” has been a major cause of this uncertainty but even prior to this was the move in Australia in the 1990s from a prescriptive regulatory structure to performance-based.

OHS compliance is now at the stage of the “best guess” or an “educated guess”, if one is lucky.  This “best guess” situation is seen as increasing the level of risk or exposure on small business owners but a quick look at the history of OHS in Australia will show that the risk has not increased.  It is only that the level of responsibility, that was always on employers, cannot now be avoided.  Where previously one could say that “WorkSafe said it [whatever it was] complies”, now one must take ownership of the risk and the responsibility by stating that “I believe this complies”.  The obligation for a safe workplace resides exclusively with the person or organisation who gains the most benefit from the production of that company where in the past one could argue that the responsibility was shared with the regulator.

In the prescriptive era, business and industry associations decried the interference of government OHS agencies as being limiting and pedantic and prescription became a pejorative word.  So OHS regulators and governments of the day embraced performance-based measures that reduced the policing aspect of the inspectorate and allowed employers to determine and control their risks.

Yet in this century, business and industry associations continue to complain about regulations, interference and red tape.  Largely the current complainants are those seeking compliance with OHS laws instead of seeking safety, regardless of laws.  If one focuses on safety and the reduction of harm, if one begins to accept the responsibility for OHS and act like a grown-up, the sources of tension, the sources of uncertainty – the regulations, the interference and the red tape – disappear or at least fade considerably.  Business can achieve clarity on workplace safety when it stops looking at the laws and begins looking at the OHS principles.

Many business owners repeat the mantra of “everyone goes home the same way they came to work” [I always think this means if you traveled in by train, you go home by train, or if you come to work with a hangover, you can go home with one] but they usually impose this on OHS regulatory obligations rather than seeing the mantra as a moral and social obligation to their workers, independent of the laws.

Britain is an example of a country whose business groups struggle to work with OHS laws, they struggle to see beyond compliance and they have come to hate the Health and Safety Executive as the embodiment of OHS compliance. The Government has responded by eliminating OHS compliance for some sectors of the economy without replacing it with the values or morals required to keep from hurting people.

As Australia officially enters election mode for the next few weeks, similar lobbying by the business groups will be re-energised for the easing of OHS regulations.  The UK strategy may even by advocated locally.  But the lesson from Britain is that there should never be a void in changing OHS laws.

In the 1990s Australia moved from prescriptive OHS laws and regulations to performance-based but it moved from something to something else. Britain has moved from something to nothing.  Business has moved from clarity (even though that clarity was resented) to what they perceive as a freedom but it is a false freedom of the type that is likely to penalise workers.

Regulatory or policy change on OHS must first establish a direction, and a future, before it dispenses with the old.  Britain has failed to do this and Australia is contemplating the same risk.   All parties need to focus on safety as a priority and compliance as a lesser issue for by attending to safety first, compliance will come.

Kevin Jones

10 thoughts on “Focus on Safety and compliance will come”

  1. Great article! From observation most organisations have a clear understanding of what they do and engaged with their people to develop clear systems and procedures to protect their people from harm, but are hampered in their efforts by interpretation of this by someone sitting on the 20th floor of some building 500k away.
    Compliance is this huge animal that organisations have to deal with to enable them to do business, and it lessens the effort that would otherwise be put into real safety. I personally have to maintain a number of systems that comply with the requirements of each client we deal with, even though we have a system that is accredited. Oh I have tried putting everything together, but I get a whole of lot of “I don’t want to see this”, “I what that”, “this wording is not right” etc etc etc. There is not even one SWMS template that is acceptable, and for the life of me I cannot see why!
    I regularly sit with my people and ask what they are doing and how it is going to be done, and low and behold they take and have ownership of what is produced! However this ownership has been taken out of their hands because of compliance issues introduced by whatever client we happen to be dealing with at the time. As an example a SWMS which should be 6 pages is now 15 and contains so much information and so many references it is confusing and scary to them and becomes redundant. I had a healthy and growing safety culture and now I get more and more of “where do I sign”. The elephant does not reduce risk it creates it!
    I see far too many audits and inspections carried out by people that have not only have no real experience in my industry, but have never been in the trenches at any stage in their career! While I applaud qualifications there is nothing that carries you forward like experience. I can sit you down and I can teach you everything there is to know about driving a car, but until you sit down behind the wheel and drive it yourself, you cannot do it! No regulation or policy change should be contemplated without each and every representative (executive, committee etc.) having a minimum of 10 years documented experience at the face of work! Maybe this will change the focus more to safety?

  2. Hi Sue,
    Not sure what your role is or your expertise in this area but if you need help or advice I\’m happy to provide email support. I\’ve worked asa consultant in the past but am currently employed with an organisaiton in the disability sector.
    You can contact me direct at: les.henley@afford.com.au

  3. Small business is often at the mercy of snake oil salesmen when it comes to management systems.

    Its Buyer Beware, if you don\’t know enough to know when you are being sold a outdated, ill fitting solution, you are unlikely to pass the PCBU state of knowledge test, but its all so chicken and egg.

    Since returning to the SME realm I have been shocked to see the proliferation of really shoddy consultants. My current employer takes a contact a week from someone wanting to offer us a compliance solution, and 75% of them don\’t stand up to the first round of questionning (if only you know what to ask..)

    Harmonisation didn\’t properly consider an essential part of any implementation project: the training. It was left to state authorities who didn\’t get any extra money, then opened up to the sharks.

    I wish the state Safework regulators had powers to deal with the sharp practices of dodgy consultants. They must see the results when they rock up after an incident and go through the workplaces\’ system

    Please note, I know that the discovery of a good consultant who educates is a thing of joy, and of true benefit to a company genuinely wanting to manage risk. It is ripping off the vulnerable I can\’t abide.

  4. Thank for another fascinating article Kevin;

    Following on from Warren\’s biblical theme, perhaps the parable of the good Samaritan is more applicable. fascinatingly hurtled into the legal sphere courtesy of Donoghue v Stevenson.

    With significant poetic license \”If I am in a position to prevent a person coming to harm or to help them sustaining further harm, then I should exert every effort and resource I have available to ensure it is so.\”

    This is nicely captured under the legislation with a wee snippet that goes along the line of \” a worker must…take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons\”.

    We could almost scrap the rest of the legislation and hang our hats on that.

  5. In the defense of \”business interested in compliance\”, the sense of making something safer is readily understood but the route to compliance is often less obvious to those outside the OHS profession.

    Proving compliance is where it really gets sticky for businesses with limited OHS resources. What documentation do we need, in what format, updated how regularly and assessed or written by whom? Scary stuff for many employers, me included.

    Oh, for a simpler system that does not involve thousands of pages of regulations, codes, standards and advisories.

    The other issue is fear. Too often, we read of employers who have gone to great lengths to implement safety systems but who are nonetheless embroiled in court cases in the aftermath of an incident. Again, scary stuff for many employers, me included.

    I also think it\’s fair to say that both the OHS profession and the regulator use that fear (perhaps justifiably) as a lever. Hardly surprising that business responds by trying to minimise liability with swathes of nigh-unmanageable paperwork and political defensiveness.

    I can attest to being a conscientious employer with the real safety of everyone here as my first priority while simultaneously feeling quite fearful of a visit from a \”friendly inspector\”.

  6. Gday Kevin,
    Good article and disturbing to read that in the UK things are going backwards.The same is happening here too, of course.How 457 visa holders who cant read, write or even speak English can be inducted, trained and understand safety culture is beyond me.
    Surely employing large numbers of these people on sites up north without any compliance is illegal.What is the insurance industries stance on this?

  7. Hi Kevin,

    Another well thought through (and dare I say it – logical ) article. Well done.

    Isn\’t amazing how \’business\’ is more concerned with \’compliance\’ than with ensuring the safety of their workers?

    I\’ve always struggled to understand why those employers don\’t see the business efficacy of protecting their employees from unnecessary harm, and thereby containing the direct and indirect costs associated with accidents and workers comp premiums.

    And as you so clearly point out, in protecting their workers (so far as reasonably practicable) they will be \’ensuring the health, safety and welfare of their workers\’ – thereby complying.

  8. Dear Kevin

    The concept of compliance is vexed because it is misunderstood both by professionals and duty holders: Professionals, because they imply it is achievable while knowing that it is not in any absolute sense; Duty holders, because they fail to (be led by professionals to) do the hard work required to understand that “reasonably practicable” actually means self assessment of risk.

    I am interested in an alternative approach to safety rather than “the cult of reasonably practicable”. Do you have any suggestions?

    It is actually a problem as old a human consciousness that only good theology properly diagnoses.

    The Ten Commandments were a documented legal code for the well being of mankind, given by Moses for the nation of Israel by God. Apart from the first one with which you might disagree, they are all utterly unarguable for the common good of any society, in my view.

    The problem from the first day of their delivery, was that Israel thought strict compliance would always satisfy the demands of the law and therefore, the Law-giver. As the record shows, they continually failed to impress Him because their understanding of compliance was faulty. It was the spirit of the law that was of interest to Him, not the letter of the law. The purpose of the letter of the law was to provide guidelines for compliance (obedience) that would lead law-keepers to realise the benefits of compliance, which they would then apply to themselves for their own benefit.

    What we know of humankind from all history, especially from the Bible, is that we seek private advantage. We think that the law is for someone else and we are entitled to appear to comply, while we take advantage of the fact that we do not.

    The application to safety?

    Teach compliance with the letter of the law and understanding of the spirit of the law for the benefit of the duty holder and those under their control, unless you have a better suggestion.

    Regards

    Warren Mills

    CR Management Systems

    Mobile: 0419 329 877

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