A strange request
March 12, 2019
The phone call went something like this.
Caller: Do you do investigative stories?
Me: Sometimes. What's the issue?
Caller: There's a company out there selling a non-compliant H&S system to SMEs and they need to be exposed!!!
Me: Interesting. May I ask where you fit in the H&S ecosystem?
Caller: We sell H&S systems. To SMEs. But our system is compliant!
Me: So ... this other crowd is a competitor?
Caller: <awkward pause> Yes.
The conversation raises once again the vexed issue of H&S consultants selling glorified manuals (even if, these days, they are dressed up as software) to SME business owners who want to tick off health & safety as 'done' and never have to think about it again. They are an easy source of income to people who promise their particular 'system' will make H&S go away and leave the business 'compliant' with H&S legislation.
Of course, SMEs should be able to call on specialist advice when they are grappling with H&S. No problem with that. But the thing is, no one can contract out of their H&S duties. As a business owner, you have to do the hard yards yourself: find out what the risks are, understand the ways to eliminate or minimise them, and so on. To do this you have to walk around the business, observe operations, talk to your people, and so on. You have to really and truly understand risk exposure, and no one else can do this for you.
You can get a H&S specialist in to help steer you in the right direction, to understand some of the less obvious risks that your people (or the public) might face, particularly risks to physical and mental health. But the heavy lifting must be done by the SME itself.
And you don't just do this once and never again. It's a process, a mindset, and one which must always involve the people exposed to the risks that your business creates.
As for being 'compliant', that is an illusion. No system can make your business compliant with the HSW Act. If something goes wrong and someone is hurt and the regulator investigates, and finds that the maintenance crew forgot to put a guard back on a machine, and that you, the boss, had walked past that guard lying on the floor for weeks and did nothing about it, you are non-compliant, regardless of your expensive H&S software system. If you are taken to court you will have no defence.
Which is what I told the caller, except more bluntly.
Time to look at the UK's sentencing guidelines?
January 13, 2019
Now that the Stumpmaster decision has clarified the question of sentencing penalty bands under the HSW Act, is it now time for NZ to take a look at the UK's
health & safety sentencing guidelines
, issued in 2016?
Sydney lawyer Alena Titterton, a keynote speaker at Safeguard's LegalSafe conference series in October, said in her presentation that Australian politicians would do better to look at the UK's sentencing guidelines rather than disappear down the rabbit hole of industrial manslaughter (my phrase, not hers).
The key element of the UK's guidelines is that sentencing bands are based on the defendant company's annual turnover. Since their adoption the effect on H&S penalties in the UK has been dramatic. In the 2017-18 year, 45 fines of more than £500,000 were handed down (the highest was £3m). By comparison, in the 2014-15 year only five fines of £500,000 or more were imposed (the highest was £750,000).
In New Zealand, the biggest fines appear to have settled in the $300,000 to $400,000 range, which is not only well short of the maximum available, but also well below the £500,000 mark (equivalent to about NZ$943,000).
What does the Forum think - is there any merit in taking a serious look at the UK's guidelines?
Making accountability personal
July 22, 2018
on Radio NZ's Checkpoint programme raises an interesting issue about corporate accountability following a workplace fatality.
In 2016 a man was killed at Toll's Onehunga depot. The company pleaded guilty and was
According to Checkpoint, the restorative justice conference between Toll and the family was unsatisfactory. What the family wants is for a senior manager at Toll to stand alongside them, in public, and say sorry.
This is so often the case: quite apart from the law, what victim's families most want is to have their voice heard, and to have someone stand up in front of them and apologise.
It makes accountability personal.
I understand how awkward and embarrassing this would be, but surely it is the right thing to do?
Is 'human error' ever acceptable as a cause?
July 13, 2018
A reporter with the
Rotorua Daily Post
has used the OIA to request a dutyholder review completed by a local company after a man was injured while using a lathe. You can read the story
The details of the incident aren't important. What struck me were these three paragraphs:
"The review concluded the direct causes of the accident were human error, complacency when completing a task that was not well suited to the lathe, and the worker not having used the lathe in at least six weeks.
"It identified the root causes, which, if added or removed, would have prevented the incident from happening, to be the absence of documented safety procedures for the worker to revise before using the machine, the absence of hazard identification or risk assessment completed on the lathe, the lack of controls such as guards or signage around the lathe and that the lathe was left out of the bi-annual safe machinery audit.
"Additional possible causes identified in the review included a lack of understanding and instruction, fatigue, dietary options (energy drinks) and the injured worker's arrogant attitude."
Whew! That covers just about every possible cause and then some. But I'm intrigued: is it still acceptable in 2018 to cite "human error" as a cause of an incident? Or the operator's alleged attitude?
I don't think so. What do you think?
Bullying, sexual harassment and culture change
July 5, 2018
The publication of Dame Margaret Bazley’s
into unacceptable behaviour at law firm Russell McVeagh has provoked a sharp response from barrister Catriona MacLennan, who rejects a number of Dame Margaret’s conclusions regarding the importance of alcohol and a “work hard, play hard” culture at the firm. In particular, she takes issue with Dame Margaret’s view that it could take ten years to implement large-scale culture change.
“It is actually very simple,” she
in Stuff. “All Russell McVeagh and other law firms have to do is offer women lawyers the same pay as they offer men when they hire them. Appoint women and men to partnerships according to the same criteria. And do not sexually harass female lawyers and interns. There is nothing hard about any of this. Describing it as a difficult process that requires a long time to implement is simply an excuse for either doing nothing, or for doing very little.”
The report is a disturbing account of organisational culture and behaviour, but from a health & safety perspective two questions spring to my mind.
First, is psychological harm on the radar of health & safety practitioners? I suspect not. Probably most of them would hasten to flick the responsibility to HR. But if the core mission of H&S is to prevent harm by identifying risks and doing something about them, then psychosocial risk should be right up there on the risk register. Because the harm it causes is horribly real.
Second, how long does culture change take? This is a question of great interest to H&S practitioners, who often find their best efforts are thwarted because their organisation is not yet at the appropriate point on some so-called maturity curve. Catriona MacLennan reckons it ought to take a hell of a lot less than ten years, provided the key barriers to change are clearly identified. I would certainly like to think so.
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