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Mind the gap: Exploring the differences between regulation-as-designed and regulation-as-done.

Video transcript of the WHS Inspector Forum presentation – Mind the gap: Exploring the differences between regulation-as-designed and regulation-as-done.

Presented by Tristan Casey, Griffith University on 4 December 2020.


Andrew:

We’ve got Tristan Casey, Dr Tristan Casey from Griffith University, Tristan’s an experienced organisational psychologist with extensive experience in work health and safety and he’s got a real interest in leadership and culture.  He’s the co-founder of The Culture Effect, please welcome Tristan.

Tristan:

Thank you so much Andrew, real pleasure to be here today.  And an extra special g’day to my colleagues from Workplace Health and Safety, Queensland, glad you could make it and hope the session’s interesting for everyone.  So, I guess I wanted to talk, a little bit today about how all these ideas you’ve heard about over the past day or so, might apply to work health and safety regulation.  So I guess casting a lens over some of the ideas and concepts that underpin Safety Differently, Safety-II, all the different words that we might use to describe that, and really what I hope to convey today is that maybe there’s not so much of a gap, or maybe there is, depending upon which jurisdiction you’re from or what your personal philosophy is like as an inspector or an adviser out there working with industry.  So really trying to explore this idea of the gap perhaps between what we imagine regulation is like and the actual practice, down in the trenches as you go out working with various industry partners.

So next slide please.  Thank you.

So, I thought we might start with a little interesting history lesson. It’s sometimes fun to reflect on where we’ve come from and sort of understand the background and basis for all the things that we might take for granted today when it comes to, particularly, work health and safety legislation.

So we can start our journey in sort of the late 1700s, early 1800s and I guess before that industrial revolution period, it was really the norm for people to make their living through agriculture or basically selling products from home. What we found with the industrial revolution though, was that there was a real intensification of work, that people flocked to the cities.  They tried to obviously gain work in those various factories and manufacturing facilities, and what we found is that that combination of sort of like mass supply of people, and the need for cheap labour, really created this melting pot of danger and risk for the average person actually going out there to earn a living.

So we quickly saw that some of these huge incidents in factories, you know boilers exploding, massive sort of, you know, very, very violent perhaps injuries that people had incurred, getting stuck in machinery, for example, really fuelled a lot of social outrage.  And just this sort of view that things could be better.  So we started to see the first, I guess, legislation around health and safety being put into place in the early 1800s via the Factory Act.  And I guess just to give you a flavour for what some of those more prescriptive approaches to legislation looked like back then, just got a list here that I’ll refer to.  So having sufficient windows and opening for ventilation, you know, cleaning rules around how often you need to take care of your manufacturing facilities. Limits on working hours, so no more than 12 hours a day.  And I guess other things like providing suitable clothing and accommodation, and also some care and concern for apprentices and young workers in terms of ensuring they receive adequate schooling.

So, I guess that initial Factory Act was a step forward into the space of trying to, I guess, raise the standards of safety and health across various organisations and factories.

Fast forward a little bit, we sort of started to see, I guess, more pressure, this time from the work force, to make further improvements to the working conditions.  And particularly around that pressure to reduce working hours to a more manageable level.  There was a lot of, I guess, interest and you know, looking at efficiencies and just how much labour can people deliver and still be productive and getting that sort of value from people.  So, there was that push to really start to introduce more legislation around maybe reducing that sort of – that level of effort or that level of investment that people have to do daily.  And also, it moved the view from not just factories, but to other industries.  So, we started to see more generalised legislation that applied elsewhere, rather than just that initial context.

Really interesting thing happened in 1835 and that’s where the duty of care concept really started to become enshrined in legislation through a precedent.  So a particular fellow that was injured at work decided to sue his employer for the injuries that he sustained, you know, to pay for his medical costs and what not and that precedent really set the scene for legislation to come around, this concept of employers really having an obligation or a duty to take care of their workers as they go about their operations.

And then, I guess, fast forward, you know probably about 100 years or so and we started to see the first really comprehensive Health & Safety Act over in the UK. That was passed in 1974 and really forms the basis for all of the legislation that was adopted around the globe since then. That particular piece of legislation talked about things like the concept of as low as reasonably practicable, formalising duty of care, and also some Safety-II ideas, you know in that early form.  This idea of building positive capacity and capability through training, education, really trying to build the skillsets and the abilities of people to perform well and to be successful in their role.

A related aspect was around consultation which you’ll all be familiar with, 1974 was the first time that was really formalised and became part of the legislative requirements.

So, we also saw at this time, the creation of the Health and Safety Executive.  The first, I guess, formalised, kind of organised regulator which again was adopted and replicated across the world.  What we saw from this little sort of tour, some implementation of various legislation and regulation, some great improvements. You know, I think the figure here is 73 per cent reduction in workplace fatalities over a 30-year period and non-fatal injuries fell by 70 per cent.  So we’ve achieved a lot with our current approach and really made a big impact I guess, just really to sort of celebrate the fact that legislation and regulation has been hugely effective at improving living conditions, working conditions and overall health and safety of workers.

Next slide please.

So, over the past day or so, you would have been exposed to a couple of different ideas, and it might be tempting to think of them as an opposition or as sort of I guess competing against each other. Safety-I being about learning from what goes wrong and maybe improving compliance with some imagined or best way of doing things.  Following procedures, you know, reducing risk through constricting variability and trying to reduce the degrees of freedom that people have to potentially, you know, take risks or do things outside the norm.

And then the other perspective we’ve talked about, of course, is Safety-II, learning from things that go right and perhaps building and improving resilience.  This sort of idea of capacity, capability, what sort of aspects or characteristics do people need, and organisations need to be resilient and be able to cope with some of the disruptions and variability that they encounter. So we will expand on these ideas throughout the presentation today.

Next slide.

So when it comes to Safety-I and regulation, we can sort of again go a little back in time and start to understand, well where has this come from and how has some of those ideas really start to be applied in practice.  So, I guess, where Safety-I had an influence was really around the form of prescriptive legislation.  So for high risk settings, in particular, trying to establish really clear rules and requirements, you know, trying to find the best way to do the job, encourage workplaces to do that as well, to develop safety procedures and ways of doing things that reduce risk.  And then I guess enforce compliance against that best way.

So, what the, I guess the sort of philosophy or world view suggests, is that work as imagined, is usually always superior to the work as done.  And the focus of the regulators and the organisation should be about trying to close that gap between how we think, the best way we think the work should be done, and the way that it’s actually done in practice.  That’s really our focus from a Safety-I perspective.  And what we find in practice, is that often we use maybe enforcement sanctions, punishments, disciplines, et cetera, to enforce compliance and basically deter people or organisations from drifting beyond those best practice standards.

And as I said, this approach has been hugely effective in terms of reducing risk. Next slide please.

But I guess there’s some unintended effects and I imagine that Drew Rae and probably Sidney talked about a couple of these, and if we think about, you know, the sort of Safety-I inspired legislation and regulation, there might be some things that it sort of produces, in addition to those helpful effects, but also maybe some harmful or hindering effects.

So the first would be this sort of rise and expansion of bureaucracy that when we focus exclusively on that sort of Safety-I approach with procedures and compliance and really effective and comprehensive safety management systems, we start to see bureaucracy kind of taking away from our good intentions.  We start to see organisations lumbered or burdened by this sort of excessive bureaucracy.  And sometimes, you know, one of the knee jerk reactions we can find ourselves doing, is putting more procedures in place as a result of an incident. Because we want to, you know, the strategy or the perspective we’re coming from is really to try and reduce and constrain that variability.  And that’s sort of where the bureaucracy sort of runs away with itself and starts to take over the organisation.

Drew would have also talked about the safety work versus the safety of work, and I guess one of his ideas is that there’s, you know, the safety work or safety activities that we do, doesn’t always necessarily create value and connect through to the actual safety of a job as done and demonstrated safety is one of those aspects.  So we find ourselves in a heavily kind of regulated or legislative environment, doing safety activities purely for the task of demonstrating it to others.  So, for example, the safety case for offshore oil and gas and other high-risk settings, you know, expending a lot of effort and energy to perhaps develop those safety cases to demonstrate to others that safety has been achieved, but often or sometimes it doesn’t always connect through to improving the risk levels in reality.  So it becomes this sort of fantasy document that doesn’t really affect the way work is done.

Another concept that can be a warning sign for too much, or the implementation of Safety-I is false assurance.  This idea that safety is okay, that we’ve got all these activities happening, but in reality, we’re not quite appreciating the real risk that’s going on.  And I guess this concept comes from some of the core ideas about safety culture, that risks can incubate in an organisation.  So, writers such as Barry Turner and also James Reason talked about these concepts such as incubated or latent factors in an organisation.  Things that people aren’t aware of, the management team don’t know about or aren’t aware of, or maybe even ignore, but nevertheless can be triggered by sort of a frontline operator’s actions and result in an incident.

The fourth is the regulator’s paradox. So, as we become safer, as Safety-I becomes more and more effective, we actually get less kind of data to help improve the way that we run our organisations and our industries.  So the regulator’s paradox is this sort of phenomenon where the safer we get, it actually becomes harder to make more improvements to safety, because we’re getting less information, and that’s really a factor of looking at things that go wrong.  You know looking at the LTIs, the medical treatment events, for example, all those negative events, as we become safer and safer, we get less data to use for our improvement activities.

And lastly, underreporting can be an issue as well.  So Safety-I and the way that it’s implemented can result in sort of reporting going underground, issues not being resolved, and even in some cases, you know, fudging the figures so that things don’t end up being an LTI or a reportable incident. So, I guess there are some drawbacks. You know, despite all the positives that have happened in terms of the benefits to injuries, the benefits to organisational safety, Safety-I has its limits, and so we might pivot and start to look at, well how can Safety-II potentially add to that and really start to take us into that sort of 21st century combination of both approaches.

Next slide please.

So, let’s have a little look now at what Safety-II means for regulation and so we can start to see some ingredients of Safety-II already being peppered through the legislation and regulation.  At the time that these documents and these rules were put in place, Safety-II wasn’t a concept, but arguably we were sort of on that wavelength and had some ideas around how we could maybe improve safety further.  And so, we saw this move away from really detailed, prescriptive legislation, you must do this, you must do that, to more of a principled based or goal-based legislation.  So, the concept of duty of care, the concept of you must ensure a safe system of work. We’re not prescribing exactly how that should be done, but rather saying this is an objective we want you to achieve, and it’s up to industry to figure out the best way to do that.

I guess there’s also been a change where regulators are starting to look at the context around incidents, around safety performance.  You know what contributed maybe beyond the immediate situation and also developing really effective, strong relationships with industry.  So, a lot of advisory teams, a lot of support to help build that sort of capacity across industry.  So, we’re starting to move into that more relationship and trust space. Related to that, you know, developing educational and capability-raising programs and initiatives.  I know Queensland has its IPaM program which is a great example of that where rather than coming in to look exclusively at compliance, it’s about how do we help industry to meet compliance, this concept of guided compliance and sort of assisting to improve safety in that way.

The last point I wanted to make about Safety-II and regulation is that, well work as done will always, and actually should differ from work as imagined, and it’s better to understand the gap between the two, rather than try to necessarily close it.  So it’s sort of this idea that, leveraging off the idea of consultation being a hallmark of safety legislation, but we should seek to understand the reality of what’s going on and how does that differ from our best practice or our procedures or our safety management system principles and what can we do to sort of understand why that’s happening.  So, it really becomes a question of understanding and asking why, rather than let’s just try and sort of shoe-horn that back into a nice kind of constrained way of doing things.

So, a few kind of ideas there about how Safety-II is aligned with the regulatory approaches.  Next slide please.

So, some effects, maybe unintended or intentional effects, and that should say Safety-II sorry, Safety-II inspired regulatory strategy, we start to see a focus on regulators trying to build positive capacity within organisations.  You know, how do we educate them?  How do we give them tools and resources?  How do we partner with them to help them understand, you know, how to improve the way they do things?  We’re seeing examples also of tailored regulations, so we have these sort of generic perhaps high-level principles that the industry or the organisations must sort of figure out for themselves, what makes sense for their context.  It does require a lot more education and ability on the organisations to do that, but arguably they’re more effective because they’re able to contextualise what that legislation looks like for their business.

We’re seeing more attempts to incorporate work as done into how regulators are doing things.  So, spending more time engaging directly with industry, spending time with workers to understand, well how do we adapt or change our legislation to make it more accurately reflect the reality of some of the demands that workers are under.

Consultation and industry engagement another big sort of selling point or effect of Safety-II ideas and how we’re already doing a lot of things.  And lastly regulator’s attempts to build social capital, not only between themselves and industry but across industry more broadly, by having networking meetings, bringing different stakeholders together to talk about, you know, how do we work collaboratively for the benefit of workplace safety.  So that sort of trust, relationship-based regulation.

Next slide please.  Thank you.

So that sort of sets the scene a little bit, and now I want to move towards, well what’s sort of actually happening, and I did a little bit of research in preparing for the presentation today and visited all the different regulators’ websites and had a look at sort of the employment section, about us, why would you want to be an inspector?  Or what’s sort of the pitch that the different regulators are putting out there around the role of an inspector?  And so, we see three different sort of themes or trends. Some jurisdictions say, be a safety leader, be a real kind of champion of this idea, you know, provide advice, guidance and education and no real mention of compliance or enforcement. So very much, you know, sitting in that almost pure Safety-II, Safety Differently space versus more of a balanced approach of, you know, education and support and compliance coming together.  So, the inspector’s role is, you know, wearing multiple hats, maybe at the same time, how do we provide improvement notices, but at the same time help organisations to actually achieve those improvements.

And the other end of the spectrum, I guess some jurisdictions saying that the inspector’s role is all about accident investigation, assessment of safety auditing and resolving disagreements or resolving safety concerns.  You know that sort of more compliance-focused approach.

So, there’s some different ideas about, well what does a regulator, you know, what is their role?  What should they be doing?  Even within yourselves and sort of the regulators themselves, there’s a lot of diversity in what that role actually means.

Next slide please.

So, we’re currently working on a bit of a study.  We were fortunate to get some time with about 18 different construction inspectors across four different jurisdictions, Queensland, New South Wales, Victoria and South Australia and we’re busy analysing that data as we speak.  We conducted something that’s called a modified job analysis.  So basically, asking inspectors, you know, what is your role about?  What do you do? What’s important?  And what sort of barriers or enablers do you have to enable you to do your job effectively? So really trying to understand the nuances of what it’s like to be an inspector.

Now there’s a lot of different angles we could go on today and the whole – we could spend a couple of sessions really talking about that data, but I wanted to continue the theme on about, well what does it mean to be an inspector or regulator in this modern environment, and what are the main objectives that they try to achieve in their roles.

Next slide please.

So looking at some of the themes that emerge from the responses from these inspectors, we could categorise them into say, maybe a Safety-I inspired theme and a Safety-II inspired theme because there was evidence that inspectors are doing both at the moment.  So, Safety-I responses, you know, they really saw their role as preventing injuries and incidents, even some people saying the goal is to work towards zero incidents across industry.  The sense that as an inspector, you’ve got this deep, moral obligation to prevent harm and prevent incidents at work.  So very, almost spiritual kind of calling or sort of sense of purpose that really helps them guide and focus their activities. Others would say, well it’s about identifying problems and causes of weaknesses in the system.  You know, where could things go wrong?  What are some of the vulnerabilities and how can we, perhaps, plug some of those holes?  Others talked about obligations and responsibilities, you know, let’s try and figure out exactly what people need to do and make them aware of those obligations and duties.

And then lastly, achieving compliance through sanctions and punishments.  But a very important caveat, you know, doing so in what’s seen as a procedurally fair and just way that there’s sort of no bias inherent or no sort of favouritism or questions about the inspector’s integrity.  So, achieving compliance in a fair and just way.

Next slide.

What about the Safety-II responses?  And you’d probably be keen to hear about this.  You know, what are some of the inspectors saying that’s aligned with maybe Safety-II philosophy?  Well they talked about things like being a one stop shop, this sort of almost servant to industry, that we’re here to help.  We’re here to give you expert knowledge.  We’re here to be an adviser.  We’re here to really help you achieve safety and resilience in your organisations.  So, it’s sort of a bit in contrast to some of the Safety-I responses.  The second one is really this interesting theme about, well as an inspector, I come to my job and I really try and suspend any pre-judgement, any evaluation, any sorts of bias that I might have and take each workplace as a new thing. What am I going to learn from this workplace?  What am I going to discover?  And how can I use that knowledge to help improve the status quo?  So really trying to be that impartial, neutral, but facilitative person in the organisation.

Others talked about building and maintaining really strong relationships with industry.  So really having that sort of social capital idea come to the fore. Being able to develop the networks, provide more personalised assistance and be really knowledgeable about who they’re dealing with.

They had this cool theme which talked about passion and really just the inspectors saying, “Well my job is to get people excited about safety.  You know, to really make them feel what I feel, maybe they’ve had personal experiences as inspectors about what could go wrong or you know, how safety can really benefit an organisation and really start to try and build that almost cultural capability in the organisation”.  And related to that, others said, “Well my role is to really help people be self-critical, reflect on what they do and my role is to provide them with a fresh perspective on how safety could be done”.  So, some really interesting, kind of varied responses about what people said, as a result of that question.  You know, how would you describe your role as a safety inspector, and we can just see the spread or the diversity of how everyone’s tackling that particular challenge and embracing that role.

Next slide please.

So, I guess coming to sort of close to the tail-end of the presentation now, what does it mean practically?  What does all this – what could this mean for us as regulators and what we should be doing or what we could be doing?  And I’ve come up with, I guess, five different areas to briefly talk about and describe.  So firstly, defining successful work, what does that look like?  Rather than having this exclusive focus on what poor work looks like or what, you know, what a safety-compromised business might look like, let’s look at it from a different angle and say, well what does good look like? You know, creating and measuring adaptive capacity in organisations, how might we do that?  Empowering industry, how do we get them to have a voice and influence legislation and be part of the conversation?  Looking at what goes right, just as much as when things fail or go wrong. And lastly, being interested and curious about variability and how, as a regulator, we can start to play more in that space.

Next slide please.

All right, so Key Question 1 is sort of a little challenge.  All of these sections will be little questions for you to consider.  You know, what is right?  What does good, successful work look like, and how has the organisation maybe engaged with, consulted with its people, and also maybe its customers, maybe its suppliers and supply chain to define what good looks like as well.  So it’s not just about the senior managers making that call or that decision, but you know, what does successful, kind of, safety capable, successful work look like?  So as regulators we could help organisations to define what constitutes success, what does it look like?  And really facilitating that consultation and involvement, you know, how can employees start to contribute to the idea?  What can our customers bring?  And, of course, as a regulator, how can we provide our stance on things and at that more macro level across multiple industries or multiple organisations?

So, the key question for us to consider is, well what does good look like?  And how does the organisation define that?

Next slide.

Key Question 2, how is this concept of capacity being created in the organisation and understood?  And the key point here is that it’s not something that should be measured quantitatively per se, you know sort of surveys or you know, observations, or this sort of really numerical approach, but rather, how is the organisation actually truly understanding the richness of that capacity through storytelling, narrative, two-way dialogue?  We can really only capture the essence of that adaptive capacity building activity through engaging in really meaningful discussion and dialogue.

And so, what you see, some examples of this that are already happening in other countries is, you know, regulators giving more flexibility to organisations about how they report back on various things regarding safety.  So rather than giving them a template that’s very prescriptive and saying, “You must fill in this form” or, you know, “make the report in this format”, they’re actually giving organisations the ability to incorporate some of that narrative into that.  You know, give us a report that tells us how things are going or how you’ve achieved safety, but the format of that’s really up to you and the content’s up to you.

The other aspect and we’re seeing some jurisdictions including Workplace Health and Safety Queensland start to look at concepts like safety capability which is similar to the idea of the resilience potentials from Hollnagel.  Safety capability is basically a way to measure, is the organisation able to cope in a dynamic, uncertain environment?  Is it able to achieve safety under those conditions? And really trying to unpack, well what is the organisational, the social and the human capitals that create that capability, that sort of emergent property of the organisation.

Next slide.

Secondly, how are people being empowered and developed to build safety capability?  One of my passion topics is really about safety training transfer.  How do we ensure that people are not just sitting in a classroom, being bombarded by information but really learning the key concepts and building the capacity and capability to do successful work.  You know, more interactive, more simulation based, really understanding the training environment and the workplace environment, about how much it encourages people to apply some of those ideas.  So, I think we’ll see, in the future, more of a role for the regulator in helping organisations to define and create really effective safety training programs.  And really looking at ourselves as regulators and saying, well what’s our role in ongoing education?  How can we start to really make a difference and guide the content of, or have input into the content of safety training, and really trying to build the capability of all industries across Australia?

Next slide.

Question 4, how can incident investigations be expanded to include discoveries of what goes right and what goes wrong?  So I guess what the question is, is can we perhaps be innovative in the way that a regulator supports organisations and really start to unpack and take case studies and testimonials and all those sorts of great things that regulators do to the next level by helping industry to discover, well why was there an exceptional success?  Or in that incident, how did we prevent it from actually becoming worse? What were some of the variations and the work arounds or the optimisations that people did to really contain that incident and stop it from getting even more dramatic?  I think that’s just having a more balanced mind around incident investigation and really helping organisations to learn from the problems, but also what they did well and how to maybe disseminate that across industry to build the capability of other organisations as well.

Next slide.

And lastly, how is performance variability monitored, evaluated and shaped as needed?  So I guess as a regulator what we might be saying is that rather than coming in and maybe, we would still do this, look for hazards, look for physical things in the environment, but we would also want to ask the organisation, well how do you know whether your people are adhering to those various procedures and what sort of processes do you have to sort of understand that gap or that difference?  Do you have a safety team that’s sort of out there looking at work insights, working collaboratively with the workforce, you know, doing great consultation? Understanding how things are varying and fluctuating or are you more of a top down, hierarchical sort of command and control style organisation that really doesn’t give much thought to performance variability.  It’s all got to be – everything’s got to be consistent and everything’s got to be in line with the procedures.  So, I think as regulators we can start to think about ourselves, well how can we collect information, or how can we encourage organisations, I guess, to collect information about variability.  What sort of activities and processes do they have to understand it and how are they learning from it?  How are they using that information to improve their procedures, you know, to improve their safety leadership or other aspects of capability?

Next slide.

So that’s it, that’s a little tour of my thoughts about Safety-I, Safety-II, regulation, maybe some implications thereof, but really wanted to leave you today with the thought that maybe we are already inching into the Safety-II, Safety Differently space and if we had some more theoretical knowledge, if we had some more structures and frameworks to guide our practice, in this Safety-II space, maybe we’d have an even greater impact as inspectors.  And I’m sure that through this wonderful session that’s been organised, this whole event, that you would have gained a few ideas about how that could work moving forward.

But I’m happy to do some Q&A, and Andrew, I think that you were going to maybe shoot some questions at me. Or do you want me to look at the Q&A as well, whatever’s easier.

Andrew:

Absolutely.  Yes, yeah, we’ve got quite a few have come through and please, if you have more questions for Christian, ah Tristan, now is the time to start pushing them through.  So, I’ll work my way up.  You made a good point, somebody said, about the meaningful dialogue.  “We see sites with multiple levels of contractual relationships where subcontractors at various levels often not having multi-lateral dialogue and relationship.  Where individual employees of a sub-sub-subcontractor doesn’t know how or feel empowered to raise an issue with another contractor onsite”.  Thoughts?

Tristan:

Yeah, great point and something that I’ve had – I’ve got a bit of experience with some clients that work with us here at the university.  Yeah, those subcontracting relationships get pretty complex, pretty quickly.  And so what we’re seeing is really – if you want bang for your buck, you target the principal contractor, and we’re seeing a lot of different organisations change up their approach to how they interact and engage with their subbies.  So we’re seeing, one particular organisation made it a priority to basically do a survey and some sort of guided interviewing with the sub subcontractors, everyone that was involved in the supply chain, to give them a voice and actually raise issues that might have not made it through the hierarchy or the formal chain of command.  And so with that organisation, what we found is that people were commenting in the survey, and providing really detailed indications of potential risks that the principal contractor didn’t even know about. And to such an extent that some of the risks they talked about actually did result in an incident further down the track. So, it really highlights the importance in the role of the principal contractor engaging in consultation at all levels, and almost bypassing the formal hierarchy structure to go straight to the workers at that bottom level.

Andrew:

And there’s an interesting sort of counterpoint to that, where somebody said in the mining and construction, major companies often demand their subcontractors provide their LTI figures before they get a contract.  Is that – and effectively demanding them to lie which creates that bad attitude towards incidents on the job.

Tristan:

Yeah, I guess that is one of the risks of those really sort of focus on lagging indicators, in particular, lost time injuries.  I guess there’s different levels of lying.  There’s sort of blatant, “I won’t report what the reality” or “I’m going to, as part of my incident reporting, going to fudge those figures so that something becomes a near miss” or a first aid event rather than a lost time injury.  So, I think we’re probably all agreeing that the current way of measuring safety is not good enough.  It does highlight potentially that there are gaps in your defences or there’s problems, but it doesn’t tell you proactively, well how much capacity or capability does that organisation do.  I’m doing some work with the government in Victoria, the Victorian Government, and one of the projects we’re hopefully going to be working with them, a major construction project, they’ve actually made a requirement that the contractor engages someone to do a sort of safety culture or capability program as part of their tendering.  So, we’ve been fortunate to be part of that with a company down there.

And so, I guess we’re starting to see more savvy clients, perhaps, that they recognise limitations of the LTI and those lagging indicators and trying to encourage their contractors to move into more of a capability building space.

Andrew:

Great.  Someone from earlier on in your presentation, you might have been talking about the Safety-I versus Safety-II and they’ve asked about, why versus, why not blend it?

Tristan:

Yeah, that was probably – and my intention was to say versus is not the way to look at it, that it is about complementary, being complementary and supplemental.  So yeah, that was more of a little – I probably could have displayed that a bit better, but sorry for the confusion.  Definitely what we see is this sort of prevention verse promotion, is the sort of the alternative way that I like to look at it.  It runs a little bit deeper than the Safety-I, Safety-II labels.  If you think about prevention, that’s sort of a psychological motivational state that we want to be motivated to avoid losses, avoid problems, be very security conscious, very compliant, very cautious.  And then the other psychological state we can find ourselves in, is this promotion focus state where it’s about exploration, creativity, innovation, you know, trying to really figure out new ways of doing things and grow ourselves as individuals. And it’s almost like an approach, avoid sort of mentality.  So that’s sort of the lens that I put on it, that, of course, we need to prevent and you know, a Safety-I approach is helpful, but we also need to supplement that with more of an exploratory, creative, innovative side of things too, where we work towards creating success in the organisation.  So, I definitely agree that it’s a blend of both.

Andrew:

Great.  We’ve got a comment here about, “Tristan, isn’t your perspective that inspectors aren’t attempting to understand incident factors that were right? Isn’t this my experience.  This isn’t my experience, interested to know what prompted your question?”, so this is my experience.

Tristan:

Yeah, I’m not quite sure I understand the question completely, but if it’s saying that I think inspectors aren’t looking for what went right, that’s probably not my intention.  If that came across, apologies.  It was more a, can we do more of that?  There might – and from the investigations that I’ve done looking at the various regulators and the approaches that they bring to the role, there would certainly be some that would say, “Yes, we do help identify success factors and capability kind of producing factors”, but there, of course, are some that maybe don’t do that approach.  That they’re more about, you know, what rule was broken? What procedure was violated? What sort of issue can we – how can we create safety by highlighting some of the deficiencies in the organisation?

So I think, like anything, it’s more just – the recommendation is, try and have a balanced approach.

Andrew:

And you probably could argue that retributive justice is the frame through which much of our legal system and the work health safety legislation’s been, I guess, contextualised by.  So it is a bit of a reframing to look at it in a different way.  We’ve got a question here about, or a comment here about, from Dave, “we’ve been having a focus on regulatory capture of inspectors.  How do regulators balance the desire to provide more Safety-II focus approaches to regulatory approach, meshing with the need to maintain perceived independence?”  Because I guess the further you step across that spectrum, the more that you’re enabling and supportive and have that perceived risk, if not real risk?

Tristan:

Yeah, great question.  I think Queensland had this same issue with their recent best practice review and one of the recommendations was the structural separation of the prosecutors and the more compliance focused arms of the organisation, versus more of the facilitative, you know, educational advisory aspects of the organisation.  So I guess that’s one way you can solve that challenge, is this sort of, you know, tension between autonomy and control, is to sort of structurally separate your functions and I think that might be a model that could prove useful.  We sort of have the people that come in for the five per cent of the industry, and if you think about the bell curve, the five per cent or whatever that are blatantly violating and creating risk for employees, because there’s just a lack of care and no real buy-in to safety, but you know the bulk of the curve is more about, well you have this really strong advisory team that come in, help you to – you know, that guided compliance, that supportive compliance, really trying to build capability.  So sort of separating the different roles into different positions or functions.

Andrew:

Right, and I think that you’ve responded to Solf’s from Worksafe New Zealand’s question which was around splitting that role and what does good look like, where does that narrative sit on the ethical barometer.  Here’s another one, how do you think a regulator can report on key projects? Currently key projects would have their non-compliances reported to executives.

Tristan:

So not quite familiar with the language around key projects.  Is that like sort of a major project or was it threshold value or something, do you think?

Andrew:

Yeah, so I guess that’s – they’re asking about the reporting when you come back.  What we’re often reporting on, what were the non-compliances as opposed to the compliances or the positive, the lead indicators?

Tristan: Yeah, I’ll have to think about that one.  I can maybe have a think about that and get back to you with a written response, nothing comes to mind at this point.

Andrew:

No problem.  Look, one of our serial offenders, so the recalcitrant who have no inclination to be safe, to get away with the minimal viable, sort of, compliance, you know continuing to work without full protection, et cetera, how are we winning these people over in this sort of system or approach?

Tristan:

Yeah, I think that’s a pretty tricky one, because we haven’t solved it in society, in general, if you think about the gaol system and how many offenders are sort of locked away and not really rehabilitated.  It’s a very sad sort of state of how we have to do things.  Of course, there will be a very, very small percentage that, I guess, maybe not possible to sort of rehabilitate and they should probably exit the industry. You know they’re not – they don’t have the right approach or the right sort of foundation to really be working in a high risk setting because of that lack of safety commitment or that lack of value and safety.  So I think it comes down to that sort of graduated compliance enforcement and education model that Safework Australia, you know, proposes or promotes, is you sort of start at the more facilitated, educational spectrum of things and then escalate your approach if you’re not getting any response.  Until the eventual outcome might be, you know, sort of exit business or sort of shut down that operation, because it is just so risky.

Andrew:

Yep, and there’s yet another one here, about that same sort of dilemma, which is around, for inspectors, how do we influence and build trust with organisations where we might be wearing two hats; one which is the, hey we’re here to help you, and the other is, but if we see something wrong, we’re coming in with the stick?

Tristan:

Yeah, that’s something that came up in the interviews really strongly, was this sort of – this tension or almost paradoxical situation that inspectors have.  You know, do I maintain my distance and my authority, or do I become friendly and almost cross that boundary to become a really trusted adviser of the organisation?  I guess what we find is that – I’ll be looking at that data with interest and sharing the results as soon as I can, but at the top of mind is that, I think the inspectors that might have a trade background or that industry background, might have that slight edge in dealing with that tension, I think, that they can across as perhaps more credible.  They know their stuff; they know the industry.  They can present the feedback in a way that, you know, it sort of shows that they care about the broader outcomes.  So, I think, you know, just thinking about how you present that information to the company and present it more as a – we want you to get better. We want you to think of the long term not the short-term benefits and just highlight the consequences of, you know, what could go wrong and how they’re missing out on various benefits as a result of that.

Andrew:

So, coming in with that empathic, look I understand the role that you’re in or the dilemma that you’re in approach. I don’t necessarily agree with it, but it’s the empathy of understanding.  We’ve got a question here, or a comment around training.  What sort of additional training do you foresee, will be required to achieve that collaborative, interactive approach, if we move away from this sort of top-down approach to safety?

Tristan:

Training for inspectors and regulators?

Andrew:

I think that’s the – yep, yep.

Tristan: Yeah, good point.  I’ll have to think about that one.  I guess, you sort of mentioned it before, Andrew, when you mentioned that sort of empathic skillset.  You know trying to build the foundational, you know, sort of emotional intelligence abilities, whether people can step into the shoes of other people and understand the perspective. That sort of ability to carry out a non-threatening, curious conversation, what sorts of questions do I ask, how do I understand more about what’s going on with the work and not come across as, you know, authoritative or the expert in the room that knows better than the person there. So, I think primarily, it’s got a lot to do with interpersonal skills.

The other interesting aspect might be more of this critical thinking about safety beliefs.  You know, what sort of paradigm or domain that really influences my personal beliefs as an inspector about how to achieve safety?  Am I a behaviouralist sort of person, where it’s about unsafe acts?  Am I more of a procedural driven person, like a system safety person, which is all about designing out the risk and engineering approaches and really logical rational, or am I more of a cultural person which is about, well how do we build those relationships and that shared kind of leadership capacity across the organisation? So yeah, a combination of critical reflection on beliefs as an inspector, what guides your practice, and the interpersonal skills as well.

Page last reviewed: 16 February 2021
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Date printed 02 Dec 2021

https://www.comcare.gov.au/about/forms-publications/transcriptions/mind-the-gap-exploring-the-differences-between-regulation-as-designed-and-regulation-as-done