Occupational health and safety (OHS) needs to talk more about failure, in a similar way that other business processes are dissected and reported. But the challenge to this, and I think the main reasons failure is not discussed, is that OHS failures result in serious injuries, life-altering conditions and deaths. OHS shares something with the medical profession which “buries its mistakes”. There appears to be something shameful in talking about these failures in public, although the OHS profession is full of chatty anecdotes in private.
One of the ways for OHS to discuss these uncomfortable experiences is to focus on Harm rather than legalities and the chase for compliance.
The first paragraph in Derek Brookes‘ new book, “Beyond Harm“, seems to speak to the OHS profession:
Recently the State Secretary of the CFMEU Construction & General WA, Mike Buchan, wrote in Construction Weekly about the need for Industrial Manslaughter laws in Western Australia. There are several points made that deserve some assessment and clarification.
He starts by stating that current occupational health and safety (OHS) laws are inadequate. This may be the case, but as Nicole Rosie from WorkSafe NZ has, supposedly, said “you can’t regulate your way to safety”. What may be inadequate is people’s compliance with OHS laws, and there may be many reasons for this non-compliance – ignorance, illiteracy, lack of enforcement by government, complexity of laws and guidance, and/or a total disregard. According to Buchan, and the wider trade union movement, Industrial Manslaughter (IM) laws are supposed to fix this inadequacy.
Buchan writes that
“The penalties that are handed down, even when a builder is found guilty of negligence, have been a disgrace in the face of the extraordinary loss of life and the suffering of families left behind.”
In April this year the Victorian Government’s Workplace Manslaughter Implementation Taskforce raised the following issues in its Criminal Law Reform Consultation Paper, seen by the SafetyAtWorkBlog:
- the definition of “person” in the OHS and proposed Industrial Manslaughter laws
- the establishment of negligence and the standard of care expected by the reasonable person
- the extension of Industrial Manslaughter offence to the deaths of members of the public
- whether a decision or act causes the death or only contributes to it
- exceptions to the laws beyond just volunteers
- inter-agency cooperation and coordination for effective prosecutions.
If you have any information about safety-related issues or incidents, remember that SafetyAtWorkBlog operates a confidential and anonymous information line at https://safetyatworkblog.whispli.com
Documents related to the development and implementation of Industrial Manslaughter laws in Victoria and seen by SafetyAtWorkBlog say that the Department of Justice and Community Services will draft a policy paper on the laws prior to the proposed Industrial Manslaughter Bill being presented to Parliament in October or November. October’s Work Health and Safety Month promises to be lively this year.
Participants in the Workplace Fatalities and Serious Incidents Reference Group had expressed concerns about the phoenixing of companies after a workplace fatality and that workplaces where deaths have occurred should be treated as a crime scene that:
“…should not be operational until a full investigation is complete”
Victoria’s Department of Justice and Community Safety’s Freedom of Information correspondence is headed:
“Information Integrity & Access”.
For the last few months SafetyAtWorkBlog has been chasing the Workplace Manslaughter Consultation Paper through official channels and been granted “two pages in full”, “four pages in part” and been refused access in full to most of the Consultation Report. This decision (available here) is because
“These documents include information concerning opinion, advice or recommendation of an officer and the personal affairs of third parties, which cannot be disclosed [for reasons given in the letter]”.