A Multifaceted Approach to Health and Safety Enforcement: The Restorative and Transformative Technique

Cority recently hosted a webinar with Naomi Kemp, the Australian Institute of Health and Safety’s (AIHS) Deputy Chair, on health and safety enforcement. In this post, we’ll cover some of the key takeaways from the webinar and Naomi provides some answers to audience members’ questions.  

The Challenge: The Traditional Approach to Health and Safety Enforcement

Have you ever felt like how we deal with health and safety enforcement is negative and one-sided? There seems to be one way or the highway – and that’s the punitive approach. Our reliance on retributive justice to create deterrence and achieve compliance is problematic to say the least. When something goes wrong, there’s a tendency to simply blame and then punish people. There are four main issues with this approach:

  1. Inconsistent enforcement and penalties: This approach to enforcement and punishment is not consistent, which results in an unharmonized interpretation, application, and overall enforcement of the rules.
  2. Reliance on deterrence effect: The lack of consistency in the penalties results in little to no impact for non-compliance issues.
  3. Lackluster denunciation: The names of public offenders and cases are not showcased, consequently resulting in little knowledge and learning opportunities for the community.
  4. Punitive consequences: These consequences have very little effect – organizations simply pay the fine and the issue goes away.

The Solution: The Restorative and Transformative Approach

Knowing all the issues with putting our eggs in one basket – how can we transform the way we approach health and safety enforcement? Naomi presented the Restorative and Transformative Approach as a possible solution. In addition to traditional punitive enforcement, we should start to combine tools that are designed to educate, support, and encourage compliance.

These tools are aimed at providing the knowledge, capabilities, and confidence for duty holders to comply. They are much more collaborative, and research shows that using these transformative tools are incredibly effective as they focus on respectful collaboration by creating a culture of compliance.

An example of one of these tools is an Enforceable Undertaking (EU). In a nutshell, the business makes an offer of an EU, which includes all the commitments and deliverables to offer the regulator. The EU is a commitment to deliver significant, tangible, and long-term benefits to health and safety in a workplace – they go beyond simply “paying for your crime”.

Think of these as a re-investment in the business, as EUs are designed to make lasting systematic changes to not only the workplace but the community. They involve restorative justice, which brings people together to collectively resolve the aftermath of an offence, and potential implications for the future – a true rehabilitation.

Over the course of the webinar, Naomi outlines examples of the successes EUs have had, in addition to other transformative approaches to help foster a health and safety culture of education, collaboration, and rehabilitation.

Naomi received a number of great questions from audience members during the webinar, and below she answers them:

How do we deal with management’s constant expression of commitment to providing a safe workplace, yet no tangible action on their behalf?

I hear your concern, it is very easy to say, ‘we are committed to safety, it’s our #1 priority’ and then not back your words up with action. When I say action, I mean real investment in controlling foreseeable hazards and risks and investing in your people’s knowledge, skills and wellbeing (physical and mental). Organisations certainly need to be held accountable when they haven’t met their legal obligations, unfortunately this generally occurs reactively. This is one of the cons of limited regulatory resources and risk-based prioritisation of regulatory response. My return question is how do we make organisations morally and ethically responsible, beyond legal compliance, because evidence shows simply meeting compliance is not necessarily ‘safe’.

Do we need EUs to gain PCBU commitment to make enduring change within a workplace and community? On the contrary, should this just be an expectation?

Yes, from the onset a PCBU should provide safe systems of work. Interestingly, there is no WHS requirements to register/start a business. In my opinion, this is where governments/regulators could seek out an opportunity to be more proactive.

The unfortunate reality is that many businesses don’t understand their WHS obligations and that what they have provided is less than reasonably practicable. As such, we see unwanted outcomes and a regulator may determine the appropriate response is prosecution.

At this point in our safety laws, there is an alternative option for a PCBU to offer (voluntarily) an EU. In an EU the person must commit to change (beyond compliance) and that commitment is enforceable. Whereas, with prosecution you may show remorse, make minimal rectifications (to meet compliance) and pay a penalty. However, with prosecution there may be no commitment given to making change beyond compliance. They can simply return to business as usual.

There is a need for restorative approaches like EUs. One of the biggest predictors coming out of the meta-analysis of restorative justice involves the implementation of an agreement. The analysis shows, if a court orders an intervention it is less likely to be followed than a voluntary agreement.

At what point do we move to punitive measures from transformative measures?

This is a great question and the easy answer is every case is different so there is no definitive answer. In general, all processes should have point of review to ensure the process is working effectively. As such, if an intervention is not having the desired effect (e.g. reoffending), then you need to understand why. Once you have determined why, you can make an informed decision as to whether you need to escalate your response. Restorative Justice research into violent criminal offenders shows 5% of interventions don’t work, some people just don’t respond, and punitive measures are therefore required (e.g. incarceration).

 

Many corporations are taking out WHS liability insurance, what’s your opinion on this?

I have experienced working with companies who have weighed up the financial benefit of pleading guilty to get a reduced penalty which would have been covered by their insurance versus making a commitment to an Enforceable Undertaking (EU). There are always many factors at play and insurance is just another mitigation control.

In your opinion, do we need to transform the enforcement of health and safety, or rather, learn from the incidents and conflicts?

To transform enforcement, we need to have processes or practices that allow for learning proactively and post-incidents/conflict. Having such tools in our enforcement toolkits means we have more options than punishment to achieve compliance and safer workplaces, specifically, psychologically safe workplaces.

During the webinar, you spoke about four main points to examine while undertaking Appreciative Inquiry – what were they?

  1. Define the issue
  2. Learn the impacts
  3. Ideas and priorities
  4. Team up and act to make improvements

How can we find a happy medium between the promotion of a non-punitive culture while still allowing the organization to meet legislative compliance?

We need to transcend our thinking and approach to monitoring and audits. They should not be about ‘catching people out’. They should be about finding what works, what doesn’t and why. They should have a focus on effectiveness and not merely compliance, because as we know sometimes our internal rules can be the problem and complying with them is not effective.

As auditors, we need to be mindful that we are not criminal investigators. Be curious, inquisitive and engaging, you are not there to take witness statements, solve crime and enforce the law!

Many employees and management have a fear of change. Can you suggest some strategies to overcome this?

Good question. My experience with ‘fear of change’ is that leaders didn’t understand or were concerned about the cost versus benefit. If you are game, one strategy is to start a small experiment without permission (seek forgiveness later). I did this in a workplace with Appreciative Investigation. I used an opportunity at a monthly safety meeting to ask simple questions. I was given a heap of stories (some terrifying) and I followed up on a few privately. Working together with the workers, we solved some serious issues that had been frustrating them for some time. After the fact, I presented the work to the leaders. In hindsight, they thought it was wonderful and wanted more to happen. Yes, this meant I spent time out of the office and not working on updating a document, but I was willing to take the risk.

How do you suggest dealing with limited resources around Educator FTEs due to budget cuts? Where should the effort be concentrated with the remaining, limited resources in this example?

The natural response is to say take a risk-based approach and focus on those industries that need the help. I raised a point earlier in another answer that there is no WHS requirements to register/start a business. Perhaps, this is where governments/regulators could seek out an opportunity to be more proactive.

I also think there needs to be a multifaceted approach to educating businesses on all subjects. It should not be left to WHS regulators to educate business on WHS. Likewise, the Fair Work Ombudsman shouldn’t be left to educating businesses on Employment Standards.

We need to find ways to engage and educate SMEs, for example through other subject matter experts like the Australian Institute of Health & Safety, or through general means like industry groups, business networks and online.

Where can we find more information on best practices around Learning Teams and Appreciative Inquiry?

There are some references on found in the webinar slides, but I encourage you to read the works of the following:

  • David Cooperrider (Appreciative Inquiry)
  • Amy Edmondson (Learning Teams)
  • Andrea Baker (HOP & Learning Teams at www.safetydifferently.com)
  • Sidney Dekker (Just Culture)
  • John Braithwaite (Restorative Justice)

Learn more

For more information and best practices, watch the webinar Transforming How We Enforce Health and Safety.

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