There has been a lot of angst over here in New Zealand about proposed changes to the primary H&S legislation. Much has been written about the pros and cons of the changes (largely cons) and I’m not going to repeat that here.
There is an issue, though, that maybe we have not been quite introspective enough to ponder, and this applies to H&S everywhere, not just the kiwi flavour stuff.
For those of you overseas, there are a few core issues at stake, but two key ones are a focus on critical risks (basically SIF risks for those of you that prefer that terminology) and a related reduced burden of obligation on small businesses with less than 20 workers. Such businesses only have to manage critical risks and have no obligation for other risks.
Of course, this requires definitions of both critical risk and small business, which, this being a proposed legal change, are somewhat unworkable in practice [Sorry, I said I wouldn’t repeat what everyone else had already been talking about].
Take a step back.
The purported reason for this change is to gain greater clarity and to make obligations more proportionate.
Another step back.
The driver for it was people telling the government that they were overcome with paralysis due to red tape from the mind-bogglingly complex and overly bureaucratic systems imposed by the current law (I may be paraphrasing slightly).
The truth is that the Health and Safety at Work Act is not terribly complex. Some of the underpinning regulations are, but these mostly impact on specialist businesses. The main act is like that in the UK, Australia (we actually stole theirs and tweaked it a bit) and elsewhere. It has an overarching requirement to reduce risks so far as is reasonably practicable. That’s it, really, apart from a few extra bits and pieces hanging around the edge.
We are, therefore, working in an environment where the legislation is relatively simple, highly flexible and based on very successful implementation elsewhere. Where, by definition, doing more than is asked of you is unreasonable.
The general thrust of the feedback from the H&S community is that the legislation doesn’t really need to change, that doing so is likely to lead to unintended consequences, and that what is really needed is better guidance, education and awareness for businesses from the regulator.
Which I completely agree with.
Here’s the thing, though. The introspective bit…
How, in the absence of such guidance, did businesses come to the conclusion that they needed complex, bureaucratic systems to comply with the aforementioned straightforward and flexible law?
Because we told them.
There isn’t a regulation demanding a 25 page job safety analysis to do the most simple task.
We demanded that.
There isn’t a regulation making contractors pay $000s to submit masses of documentation to a third-party pre-qualification provider who never so much as sets foot on a worksite.
We asked for that.
There is no legislation that insists we make front line workers carry out detailed risk assessments using matrices that not even academics and ‘experts’ can agree on how to use, when to use, or even if they do more harm than good.
We did that.
Now, when I say we, I don’t mean me, obviously. And I probably don’t mean you, if you’re reading this. We’re the good guys, after all. But I do mean we, as the H&S community, profession, discipline, or whatever we choose to call ourselves.
And if you’re not pushing for those things, being one of the good guys, are you pushing back hard enough against them? To get rid of them? To challenge them.
I really like the focus on critical risks, but not at the expense of everything else. It should be a prioritisation exercise, not an exclusion exercise. I like the idea of proportionate requirements for small businesses, but reasonable practicability already provides that.
So, by all means, let’s push back on the law changes. But let’s have a little more humility, a little more introspection, a little mea culpa, and also push back on our own nonsense.
PS – if you also think a focus on critical risk management (or SIFs) is the way to go – have a look here
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A key underlying issue appears to be that people are afraid of the consequences of getting it wrong or missing something and then finding themselves the subject of a WorkDafe / Maritime NZ prosecution. Essentially, everyone is seeking CERTAINTY rather than CLARITY – big difference. Viewed in that light, the plethora of documents and signatures are largely performative attempts to bypass genuine engagement and accountability., for fear of legal penalties.
Not only does this suggest that most people don’t really grasp the inherent uncertainties in identifying and managing work-related risks, but also that they don’t understand concepts like due diligence, assurance, and what it really means to manage risks “as far as reasonably practicable”- all of which call for meaningful systematic approaches to managing work and related hazards and risks.
As you suggest, the way forward is NOT actually to lower the bar, but rather to raise understanding and encourage meaningful change to remove all the “NOT safety” expectations, change the thinking that signed documents are in and of themselves some kind of bullet-proof protection for a PCBU, and start supporting meaningful collaboration between PCBUs, as well as between workers and their managers – start being curious and open to the insights of frontline workers, and start thinking in terms of solutions instead of problems!
Thanks Sheri – spot on, as usual. What genuinely worries me is that this lack of understanding is rife within the safety profession. I could forgive it to an extent in management – especially in small businesses.
I guess if PCBU use sufficient wads of paperwork to CYA*, they might feel a bit less exposed to a caning from those in authority. A caning is still the result, but the pain slightly milder. *Cover Your Arse