Category: ethics

HIP Royal Commission – Gross Negligence and Accountability

Little of the recent commentary on the findings of the Royal Commission into the Home Insulation Program (HIP) have mentioned the opinion of the Royal Commissioner Ian Hanger that the Australian Government acted in a “grossly negligent” manner.  Such a comment deserves considerable analysis by a specialist lawyer but it remains a remarkable criticism in terms of obligations under OHS/WHS laws.

Commissioner Hanger wrote:

“To encourage inexperienced young people to work in an environment where there was a risk of defective electrical wiring, and allow them to install conductive material was, in my opinion, grossly negligent. It is no answer for the Australian Government to say that it was the responsibility of those young people’s employers to protect them.” (para 5.2.20, emphasis added)

Gross negligence has been equated to the term “reckless endangerment” included in Australia’s Work Health and Safety laws.  One legal website site says that:

“Reckless endangerment is the offense of engaging in activity that has a disregard for risks with foreseeably dangerous consequences.”

Commissioner Hanger’s comments certainly seem to fit reckless endangerment as the risks, not only of electrocution but simply from working in domestic roof spaces, were well known.

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“Put the human being first”

One of the most contentious issues in safety management is the treatment of workers compensation claimants.  On 18 August 2014, a small qualitative research report into this area was launched in Melbourne.  The report, “Filling the Dark Spot: fifteen injured workers shine a light on the workers compensation system to improve it for others”* identified four themes in the workers’ stories:

  • a sense of injustice
  • a lack of control and agency
  • loss of trust, and
  • loss of identity.

These themes, or at least some of them, are increasingly appearing on the occupational health and safety (OHS) literature.  To establish a successful sustainable workplace culture, one needs to establish and maintain trust.  Workers also seem to need some degree of control, or at least influence, over their working conditions and environment.  Also workers, and managers, need to receive a fair hearing, what most would describe as “natural justice”.

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How can an OHS regulator get the management of its own staff so wrong?

How can an OHS regulator get the management of its own staff so wrong?

In June 2014, a NSW Parliamentary inquiry released its final report into Allegations of bullying in WorkCover NSW, that State’s occupational health and safety (OHS) regulator. The report found that

“…Workcover has a significant organisational problem with bullying.  This problem is a longstanding one and operates at a cultural level.” (page x)

The Committee Chairman Hon Fred Nile MLC, wrote that

“more effective leadership and governance is essential.” (page x)

Longstanding bullying problems?  Problems with leadership and governance?  Many companies and public sector organisations have had similar issues ambulances, police, fire services, research organisations, to name a few, and are working them through. What happened in New South Wales?

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Royal Commission and risk registers

Most of the Australian media is waiting for the former politicians to appear at the Royal Commission into the Home Insulation Program later this month but the Commission has not been quiet in its many public hearings recently.  One of the hearings heard evidence that is particularly significant and relates to risk registers.

According to 

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“Safety is paramount”, “safety is our number one priority” = bullshit cliches

After a major incident or at an Annual General Meeting, it will be common to hear a senior executive state something like “Safety is our number one priority”.  This is unrealistic and almost absurd because even in the most worker-friendly company, the continued existence of that organisation is the real and ultimate goal.  Most corporate leaders believe these safety clichés because they think they reflect their own values but the statements are misrepresenting occupational health and safety (OHS) and need to be questioned.

Corporate leaders who say such statements are not hypocrites.  They are more likely to not understand the consequences of their statements.  If safety really is the number one priority, an executive should be able or expected to close the company if its work cannot be conducted safely.  If a company’s people are paramount to the success of the company, how does it handle an accusation of bullying against a manager?  Which of the people does the Board or the company choose to keep and which to lose?  Should it keep the “evil” sales representative because the rep is its most effective salesperson or sack the rep because he or she is abusive?

These are executive decisions that need to be worked through if any company is to develop an effective operational culture that truly values the safety of its workers.  It is vital that the reality behind the statements is analysed and acted upon, or perhaps such statements should not be uttered in the first instance.

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OHS can be a force for social change, if anyone could be bothered

HesaMag should be obligatory reading for all OHS professionals, not just those in Europe. The editorial in the most recent edition (9 and not yet on line) is a great example of the value of this free magazine. It critically discusses the upcoming International Workers’ Memorial Day and its significance.

It asks for everyone to enact the commitment shown on each April 28 to every other day of the year. It says:

“Let’s not be taken in by the false sentiment on 28 April, but demand a clear and detailed accounting”

It asks why EU OHS legislation has been so slow to appear or be revised but equally, in Australia, questions should be asked about the status (failure in my opinion) of WHS harmonisaton, the lack of attention to the causes of workplace mental illness, the status of workplace bullying claims in the Fair Work Commission, the lack of attention to heavy vehicle OHS matters by the safety profession and the insidious encroachment of the perception of OHS as a failure of the individual rather than a failure in the system of work. Continue reading “OHS can be a force for social change, if anyone could be bothered”

Prediction on accountability and a political kick in the balls

Responsibility highlighted in greenThere will be two areas of occupational health and safety attention in the early months of 2014 in Australia – workplace bullying laws and the Royal Commission into Home Insulation Program.  The labour law firms are gearing up for a “bumper year” as one said prior to Christmas and the business groups are already lobbying/complaining/whingeing about the workplace bullying laws administered by the Fair Work Commission.  However the Royal Commission has the potential for the biggest social and ideological impact so, as the new year begins, I will attempt some predictions of the Royal Commission’s findings based around some of the terms of reference.

Substantial Change

‘the processes by which the Australian Government made decisions about the establishment and implementation of the Program, and the bases of those decisions, including how workplace health and safety and other risks relating to the Program were identified, assessed and managed;’

This paragraph is the one that could have the most long-term effect on governance, due diligence and procurement.  There are many suggestions on these issues in the sphere of project management but trying to keep the discussion in OHS, there are some useful comments on the Government procurement of services.  Australia’s Federal Safety Commission acknowledges that procurement is an important stage in project design.  WorkSafe Victoria’s “handbook for the public sector – health and safety in construction procurement” says

“As procurers, governments can promote better health and safety by requiring projects to include a range of safety measures, such as specifying the safety budget, building layout or the use of certain

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