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.