Stick, Stick, Stick (carrot . . ?)

In August of 2015, a flooring company worker was badly burned when flammgavelable vapour from glue he was using ignited due to another worker nearby using a blow torch. The company was subsequently prosecuted and found guilty under New Zealand legislation. What I found remarkable about this story was not the fact that the hazard was so obviously identifiable and easily manageable (although that remains a far too common concern), but the following statement made by the regulator, “The purpose of health and safety legislation is to protect workers from themselves.”

Newspaper journalists are hardly renowned for their accuracy in quoting, and it is noticeable that the statement in the piece is not in quotation marks, so I recognise that it may not be entirely accurate and it possibly does a disservice to the inspector involved. However, my experience with regulators in various jurisdictions would suggest that even if this is not verbatim it is a widely held, if not universal, belief among their number.

There is a wide range of views on the role of workers in safety management. Whether or not you subscribe to specific theories or approaches about Safety I vs Safety II, workers being the solution rather than the problem and so on, it is fair to say that the majority of more forward thinking approaches are supportive of more recognition of the workers’ role in generating safe outcomes. A greater emphasis is being placed on engagement and involvement now than has been the case in the past. Indeed, one of the principal changes in the recently introduced Health and Safety at Work Act in New Zealand is the increased requirement for formal and wide-ranging worker consultation processes. This suggests that the workforce can provide value to the process. How, then, does this align with the above statement that has a clear implication of ‘worker as problem’. What will the impact be on safety performance as a whole if the regulator’s view is at odds with the safety profession? Can we move forward effectively when those responsible for enforcement are not on the same page?

In the New Zealand context, safety law is based on target-setting legislation, similar to that in the UK and Australia. The requirement is for risks to be reduced so far as is reasonably practicable. One of the key underlying factors in demonstrating ‘reasonably practicable’ is a comparison with industry good practice i.e. do the same as everybody else is doing. This can become a handbrake on innovation and doing things differently. Although it should be noted that this is a better legal environment for innovation than a strongly prescriptive regime that mandates certain aspects of operation.

The use of prosecution as a regulatory tool drives certain behaviours in organisations. As Ron Gantt noted in a recent LinkedIn post, many businesses spend more time identifying what they need to do to satisfy the regulator than they do actually identifying and managing risks to their workforce. This could lead to more accidents because the focus is being placed in the wrong area. Perversely, the more prosecution that occurs and the more publicity it receives, the more likely this distraction is to occur. Almost every safety manager will say that compliance with legislation is the absolute bare minimum we should be striving for. Stronger enforcement pulls poor performers up to this de minimis level, but at the same time drives better performers down towards it through fear of prosecution. It may be that everyone at the minimum level is a better net outcome than some above and some below, especially as the number of lives saved through improvement on the negative side will probably be larger than those put at risk through shortfalls on the positive side. But there may be ways to improve both that are simply not being explored.

The issue is not the regulator per se, although there are many areas where they (like all of us) could improve, so much as it is the role that they are being asked to play. They are there purely to enforce the law. A law which often they have no input into developing. Like a judge, they may feel that the law is not appropriate, but it is not their role to make that decision. They are also subject to a general pressure to not provide genuine guidance. It is not their role to tell an organisation specifically how to carry out an activity and there is a fear that if they provide such guidance it will be thrown back at them in court, “The regulator said to do it this way.” They have an unenviable role, lambasted by the public if they are not strong enough and criticised by industry when they are.

Taken from a broader systems perspective, is a legislate-enforce-prosecute model the best way to manage safety? Does this inherently limit our ability to innovate, to improve, to best use our resources? Does it serve a political purpose of fulfilling the public’s need for blame following an accident, rather than the longer term purpose of actually reducing those accidents?

Some regulators have identified and acknowledged some of these concerns. The ‘modern’ regulator has formal strategies to provide more education and engagement before enforcement; but while there is talk of carrot, the spectre of the stick is always hanging over the conversation, especially where historic enforcement culture among inspectors is slow to catch up to this new corporate vision.

What might the alternatives be? Could there be an independent specialist group to advise on such matters made up of safety experts, industry representatives, unions, regulators and government? Or an inspection regime that has frequency and depth based on past performance? Would a peer to peer review process be more effective that is less adversarial and more open than a regulatory inspection? Would performance mentoring help, or industry-specific safety SWAT teams? Would the money spent on regulators be better committed to industry wide safety training and investment in safe design development?

I don’t know what the answer is, and would welcome any suggestions, particularly from regulators, but it is a question worth exploring.

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