To risk assess, or not to risk assess: that is the question.

Whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take arms against the sea of troubles, and by opposing end them.

The question for Hamlet was whether to continue to exist or not, the question we pondered was slightly less morbid. In his recent article “What are the 3 big problems with current safety practice?”, Dr Drew Rae suggested that one of the problems with the current practice of safety is that ‘risk assessment neither reduces risk nor increases understanding of risk’. At our recent YSP Old event, we argued for and against this statement. Moreover, while no side came out the winner, there was definitely a passionate voice, let’s just say no one was laying down their guns and surrendering!

So let’s break down what the Young Safety Professionals of Queensland thought…

Aha, but wait I hear you say. You haven’t established the context!

Well we are talking occupational health and safety Risk Assessment, and yes, in terms of that there is still a broad scope. Is it corporate risk, strategic or operational risk, is it an assessment of change or activity? In general, the discussion around this statement was regarding the risk assessment of activity, task or ‘work’.

The arguments that agreed with this statement can be categorised into two main points:

  1. Reasoned Action
  2. Limiting Liability

The theory of reasoned action (Fishbein & Ajzen, 1967), aims to explain the relationship between attitudes and behaviours within human action. Moreover, that the decision an individual makes for engaging in a behaviour is based on the outcomes they expect as a result of their action. Many of the arguments to suggest that risk assessment neither reduces risk nor increases understanding related to people’s attitudes towards having to complete a risk assessment versus wanting to do one. That risk assessment is ‘subjective and dependent on the intent of their use’. Leading to behaviours such as ‘tick-n-flick and complacency’. Behaviours that are reinforced by the lack of consequences because ‘no one is looking at them [risk assessments]’.

Others argued that ‘lag time between logging something and getting action reduces buy-in’ and that the ‘documenting exercise’ by administrative staff ‘reduces consultation between management and workers’. Suggesting that these consequences also reinforce the attitudes and behaviours as mentioned above.

Regarding limiting liability, some argued that risk assessment is a tool used to ‘reduce liability rather than focusing on fixing the issue’. There was also a suggestion that they are used as evidence to ‘demonstrate an assessment of risk, acceptance and justification that existing controls are reasonably practicable’.

In a more sweeping statement, it was suggested that a ‘Blanket Approach’ to risk assessment neither reduces risk nor increases understanding versus a ‘Tailored Approach’. Posing the question to OHS Professionals…

Quantity vs. Quality – at what point are we not adding value?

In contrast to those who agreed with the statement, others argued that this, in fact, is not really a ‘problem‘ with the current safety practice. Suggesting that even though risk assessment may not reduce risk or increase the understanding of risk, the process empowers people to take ownership. That risk assessment which is team-based engage workers and give ‘more power to the people and not to head office!’. And yes, while they may not be the perfect, they may not reduce risk, they do ‘get people into the habit of looking for risks up front’. So is there really a problem with that?

In my personal opinion, I do not think we have necessarily reached a quietus to this argument, but we have definitely chewed the fat. From the YSP’s point of view, it seems more likely that this generation is going to ‘take arms against the sea of troubles’ and not ‘suffer the slings and arrows’. Moreover, while we may not see the end of risk assessment per sae, it is the YSP’s who are keen to explore safety…dare I say…’differently’.

This article is 1 of 4, that the YSP Network of Queensland are posting after our first event on the 22 February 2017. I have had the privilege to summarise the thoughts, ideas and comments raised by the amazing group that attended the event.

Reflecting on the arguments raised by the YSP’s, it became apparent their views on this statement were very much at an operational risk management level. That is, the day-to-day risk management activities. Which perhaps reflects on the nature of the positions the YSP’s currently hold within their organisations. As such, I call to all you more senior-positioned OHS professionals to ensure you engage with YSP’s and coach them on how to think and function at a more strategic level within their organisation.

Join the Young Safety Professional Network Group in LinkedIn and and follow us on twitter @YSP_Aust

Is there a change in prosecutorial mindset?

It is alarming and sadly a true statistic that as at 30 March, 45 Australian workers have been killed at work in 2017. This is 10 more than in the same period last year. Forty-five families that no doubt wish to see justice for the loss of loved one.

For many, the next question is how many of these workplaces have or will be prosecuted?

Another concerning statistic is the inverse proportion of prosecutions. In recent times, the number of WHS prosecutions have fallen to less than half of that 10 years ago according to Michael Tooma in a recent article published by OHS Alert.

Coupled with fewer WHS prosecutions being pursued we are also seeing penalties for offences at only a fraction of the maximum fines under WHS legislation. Quite the opposite to the predictions being made by commentators pre-harmonisation. I wrote in a previous article that “in one Australian jurisdiction over the past 2 years, penalties for those found guilty of a category 2 offence have averaged $35,000”. These cases included injury outcomes such as severe lacerations or fractures, amputations, spine and brain damage. This average is approximately 2% of the maximum penalty in that jurisdiction. In addition, the average penalty for a single fatality was $160,000, almost all with no conviction recorded. At the time of publishing that article, that jurisdiction had begun pursuing its first category 1 matter where they allege recklessness.

My article was attempting to highlight the seemingly low levels of penalties and the few amount of convictions being recorded and publicised. Discussing how victims/families may not feel that justice has been served when penalty outcomes are so low compared to the potential maximum fines. I explained that government regulators view and utilise prosecution as a deterrent. However, I argued that with such low penalty outcomes, few convictions being recorded and cases being publicised, prosecution is losing its edge.

To some, it could be considered a shallow threat.

Tooma suggested recently, that Australia is facing a crisis in WHS Regulation with a lack of prosecution action, inconsistent enforcement of the harmonised WHS laws as well as inconsistent penalties for similar offences across jurisdictions and within. While I don’t believe he was suggesting that inconsistent regulation is a causal factor of workplace fatalities. I believe he is demonstrating there is a correlation that questions the deterrence effect. Raising the concern that people and employers may not take safety seriously. That they will weigh up the chance of something going wrong and the cost of a potential fine against the cost of instituting higher safety standards.

With an increasing number of manslaughter charges being pursued by police against individuals following work health and safety incidents. WHS commentators consider this concern to be translating across the community into other enforcements agencies with the power to act on such matters. A prominent example was in November 2016, when Queensland witnessed the well-publicised arrest of a builder charged with double manslaughter in relation to the double fatality at the Eagle Farm Racecourse construction project. Queensland Police alleging the builder was negligent. These charges came while the WHS regulator was still conducting the investigation.

Bochenek & Tooma suggest that this move to pursue serious criminal charges against individuals by criminal prosecutors ‘signals a change in prosecutorial mindset’. One ponders if this trend of pursuing manslaughter charges will become the prosecution norm. Discussion among safety networks is all about whether police services are taking things into their own hands as they have little confidence in safety regulators taking appropriate and timely action. There is little doubt that criminal prosecution for workplace incidents will have an increased deterrent effect.

So is this change in prosecutorial mindset the way forward?

Tooma suggests that to avoid a crisis, WHS regulators need to increase prosecution action and become more consistent with penalties across jurisdictions and within. Such efforts are also likely to generate a stronger deterrence effect. Interesting, in the UK there has been a different approach. In 2016, they introduced the Definitive Guideline on Sentencing in cases of health and safety and corporate manslaughter (the “Guideline”).

This change in sentencing has certainly had an impact. By directing the court to set a fine, which is, “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”. Over the past year, a significant impact has been seen with large organisations being handed massive penalties. While this sounds like a potential option for Australian policy makers, analysis has shown that smaller entities are the ones being hardest hit financially by the Guideline. So while it may deter others, it allows little financial leeway for those entities to invest in health and safety improvements in the future.

So what is the way forward for WHS regulators?

Reported recently, Queensland has appointed an independent reviewer to conduct an audit of the WHS laws with a view to introducing the offence of “gross negligence causing death” and increasing maximum penalties. The scope of the audit is to consider whether an offence of gross negligence causing death and higher maximum penalties should be introduced to create a stronger deterrent from non­compliance. With several tragedies in the state last year, concerns were raised about the public safety matters and the effectiveness of current offences and penalties under the Work Health and Safety Act 2011. The result of this audit and the potential changes to the WHS laws could be a real game changer, especially if it encourages other jurisdictions to follow suit.

Stay tuned…

Enforcing safety differently to create enduring change.

When there is a serious injury, dangerous incident or fatality in a workplace and the regulator is notified an inspector may come to investigate. After which the decision to initiate or proceed with a prosecution is made. This decision is a significant one and the effect on those impacted (e.g. the defendant, an injured worker, or the family of a deceased worker) is likely to be considerable. As such, regulators apply decision-making guidelines specific to their jurisdiction.

If the case meets this ‘prosecution test’ they will prosecute for a contravention of the safety laws. Work health and safety (WHS) prosecutions, like all prosecutions, are a form of retributive justice. Meaning a system of justice based on the proportionate punishment of the offenders rather than rehabilitation[1]. Since the introduction of the Factory Act in Australia, this traditional form of justice generally resulting in a monetary penalty, has been considered the best response to a contravention of the safety laws[2]. However, with the number of serious injuries and fatalities that occur in workplaces across Australia annually, does this punitive practice make a difference?

In general, safety regulators believe prosecution is the best form of deterrence. In Australia, one jurisdiction states they ‘actively draw public attention’ to individuals and organisations it successfully prosecutes for breaching the safety laws as a disincentive for non-compliance[3]. Across Australia, this is further supported by the legislated maximum penalties in the various WHS Acts. With a category 1 offence, ranging from $600, 000 or 5 years imprisonment for an individual to $3 million for a body corporate. And the more common offence, category 2 ranging from $300, 000 to $1.5 million[4].

This seems like a pretty big ‘deterrence’ stick.

However, over the last 2 years in one Australian jurisdiction penalties for those found guilty of a category 2 offence have averaged $35,000. This includes injury outcomes such as severe lacerations or fractures, amputations, spine and brain damage. This average is approximately 2% of the maximum penalty. Penalties for a single fatality in this jurisdiction average $160,000[3].

And what does ‘actively draw public attention’ mean? Well, upon a finding of guilt by the court, the regulator “may publish identifying information in relation to the defendant(s), the offence, the penalty imposed and related matters”[3]. However, where there is a successful prosecution but an order is made that no conviction is to be recorded, the regulator will “remove information from the court summary to avoid breach of the court’s order and infringement of section 12 of the Penalties and Sentences Act 1992”[3].

Perhaps, that ‘deterrence’ stick is a bit soft.

The public say they want to “see justice, that someone must go to jail for this”[5]. However, since the inception of the safety laws in this same jurisdiction, no one has actually been imprisoned[3]. So do they really see justice?

Are prosecution penalties really changing behaviour?

The rational change model is the behavioural change theory that underlies most public policy and should continue to be the fundamental building block model for policy making[6]. Still, it has limitations from a behavioural change perspective. Influencing human and organisational behaviour is very complex. As such, the traditional safety regulator approach may be limited without a solid understanding of how to engage organisations and the effective use of alternative enforcement options[7].

So, rather than just fining those found guilty, should we not encourage alternative sanctions that impose improvements to health and safety in the workplace? In a recent study, a researcher found that prosecution was not the #1 reason for workplaces to improve health and safety. Reporting that it was the experience of a serious injury in the workplace that was the actual driver for change[8].

So, if monetary fines are not the answer then what else is there?

Restorative Justice: defined as a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future[9].

Sounds new and innovative? Not quite, Restorative approaches to crime date back thousands of years. In Sumer, ancient Iraq (c. 2060 BC), the law Code of Ur-Nammu required restitution for violent offences[10].

In Australia, our current safety laws have Restorative Justice provisions. Allowing for sentencing guilty offenders with various orders such as Restoration Orders, WHS project orders, court-ordered WHS undertakings and training orders. The laws even allow for the giving of an Enforceable Undertaking (EU) which occurs before a trial and does not constitute an admission of guilt[4].

In many Australian jurisdictions, training and project orders are commonly-used sentencing methods. Queensland is considered the most prolific giver of enforceable undertakings in Australia, with over 130 undertakings given since it became an alternative option to prosecution[4]. This equates to over $27 million in health and safety improvements across workplaces, industries and communities[11]. More recently other jurisdictions have raised the profile of enforceable undertaking, most notably New South Wales with the giving of 20 undertakings in the past 2 years[12].

Restorative justice in the Australian criminal justice system sees all parties with a stake in a particular offence come together, Victim, Offender and the community. Research shows this collective approach to repair harm, restore relationships and ultimately strengthen society’s social bonds also reduces recidivism[13].

Similarly, Enforceable Undertakings have a collective approach to repair harm through significant, long-term activities in the workplace and across industries and communities. Research has found that those who give an undertaking are less likely to re-offend as they are required to implement safety systems and there is a change in workplace culture[8].

Enforceable Undertakings have generated numerous positive outcomes in one jurisdiction alone[11]. These include:

  • A civil construction company commissioned the development of obstacle detection technology for mobile construction plant and vehicle that automatically applies the brakes when an obstacle is detected.
  • A small recreational company have conducted crash testing research and developed Australian design standards
  • A small waste recycler has conducted mental health workshops in the workplace
  • A sugar mill is developing an industry guideline and methodology for under-rapid-water bridge inspections.
  • A construction company has sponsored a PhD scholarship named by the widow in memory of the worker for research into the relationship between contractors and sub-contractors in the construction industry.
  • A manufacturing company is funding the development of web-based application for schools to maintain machinery safety as well as the installation of safety guarding for plant and equipment in three local high schools.

In this age of disruption, with a growing movement to do safety differently, safety regulators must consider more positive, engaging and enabling approach.

Regulators must consider enforcing safety differently. 

Don’t get me wrong, this is not an argument against the need for prosecution. Rather an argument for targeting it to circumstances where it is most likely to be an effective deterrent. It’s a plea for governments to encourage the use of alternative sanctions that impose improvements to health and safety in the workplace.

More than 10 years ago, Braithwaite argued that what is needed is the creation of restorative justice mechanisms such as community conferences in which workers, victims and their families participate with management (including senior management) in a dialogue about what went wrong and what should be done to make sure it never happens again[9].

Now with the growing use of these alternate enforcement options in Australia, we are starting to build a strong evidence base supporting the use of restorative justice mechanisms. Providing all regulators (not just safety) with a strong case to consider amplifying the use of restorative justice practices to create positive prosecution outcomes.

To create enduring change…

REFERENCES

  1. Bentham, J. (1970). An introduction to the principles of morals and legislation. London: The Athone Press.
  2. Cavadino, M & Dignan, J. (1997). The Penal System: An Introduction (2nd ed.), p. 39. London: Sage.
  3. https://www.worksafe.qld.gov.au/laws-and-compliance/prosecutions
  4. https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/W/WorkHSA11.pdf
  5. Darley J. M., Pittman T. S. (2003) The psychology of compensatory and retributive justice. Personality and Social Psychology Review 7: 324–336.
  6. Australian Public Service Commission 2015, Changing behaviour: A Public Policy Perspective
  7. Johnstone, Richard & King, Michelle (2008) A responsive sanction to promote systematic compliance? Enforceable undertakings in occupational health and safety regulation. Australian Journal of Labour Law, 21, pp. 280-315.
  8. Unpublished student research study.
  9. Braithwaite, J. (2002). Restorative justice & responsive regulation / John Braithwaite. (Studies in crime and public policy). Oxford ; New York: Oxford University Press.
  10. Finkelstein, J. (1968). The Laws of Ur-Nammu. Journal of Cuneiform Studies, 22(3/4), 66-82.
  11. https://www.worksafe.qld.gov.au/laws-and-compliance/enforceable-undertakings
  12. http://www.safework.nsw.gov.au/law-and-policy/enforcement/enforceable-undertakings
  13. Larsen, J. (2014). Restorative justice in the Australian criminal justice system. 127, 22.

So…One Word for 2017

No annual goals, no new year’s resolutions here for me. For the second year running, I am taking on a fuzzy beacon*. A big contextual word that makes me think differently about how I project myself into the year ahead. You may not get it, you may think, what the hell does that mean? Actually, it doesn’t matter what you think, because what my fuzzy beacon means really only matters to me. But read on if you dare!

One Word which you live with through the year. Something distinct!

A fuzzy beacon is like a light to pull you back on track, and to keep you true to your intentions should you waiver. Last year my word was Brave. It was about being brave, making tough decisions and seizing opportunities. This year my word is a bit bolder, aha it’s braver. A fuzzy beacon is not meant to be easy, so I have deliberately made it a little uncomfortable for me. Because if it doesn’t challenge you, it sure as hell won’t change you.

My fuzzy beacon is ROGUE.

I have chosen an archetype word. Challenging myself to take upon the role of a rogue. When I’m stuck mud or feeling uncertain about the decisions I need to make, I will ask myself “what would a rogue do?”

Now Rogue is generally defined as someone who is a bit of a scoundrel. To me, Rogue has become redefined in recent times (e.g. X-men, Star Wars Rogue One). So, I see Rogue as the warrior who is on a quest towards development, progress and enduring relevance. It is the justice rogue who is bold and does not fear failure but embraces it to become anti-fragile. It is the rebel who knows the difference between rebellious reactions and rebellious decisions. It is a true fighter who can quell the impetuous urge and take hard knocks gracefully.

In 2017, being a Rogue is about breaking down barriers that restrict progress and achieving a great deal with strategic acquiescence. A rogue with her quiver, a ‘quiver of options’ – is a pioneering leader with a bunch of different strategic pathways to introduce and execute. Because with a quiver of options and meaningful progress and enterprise will outfox the Inevitable Kraken of Doom!

So if you like my thinking and you’re inspired, why don’t you set your own fuzzy beacon? Who knows what adventures you might have!

* Fuzzy beacon is best described by Dr Jason Fox click here to read more.

Or if this is just a bit too frivolous for you, but you are intrigued by the Kraken of Doom then I suggest you read ‘How to lead a quest‘ By Dr Jason Fox.

Do you have Safe Expectations?

 

 

So here it is.

My first Safe Expectations blog. And all that comes to mind is…

Hello!

For the past, I can’t remember how long – I have been immersed in the world of safety. And over that time many people have asked ‘why don’t you consult?’

My answer has never waivered. The thought of just going into a place, creating change and not seeing the outcome…the benefits for the client, it just doesn’t feel right. I’ve always said to myself: if I consult, I am going to structure things differently!

So it’s 2017, and here I am…a consultant.

But not just any consultant, a specialist in a very niche area of safety legislation >>> Enforceable Undertakings.

And of course, that is not where I am stopping. I am also embarking on becoming a thought leader. By using my skill set (for good, not evil) across several platforms; Speaking, Coaching, Training and Writing.

Going ROGUE in 2017!

This is my fuzzy beacon and what is means to me is important. Probably what it means to you is ridiculous, so let’s move on…

This blog is the beginning of my writing. It will form part of my Safe Expectations Bildungsroman (that’s a newsletter with a WTF title!) and will share my insights, stories and news.

And as always, if you want to get to know me better… well I drink coffee and I’m always up for a chat!

Stay tuned…this should get better.