Does Occupational Health & Safety Regulatory Compliance Help or Hinder Safety?

Interesting dilemma that our regulatory and compliance system in Canada (North America) has brought about. It’s time to reconsider how we apply incident investigations and analysis.

Let’s unpack this a little bit, (please feel free to reach out for a deeper explanation or discussion). These thoughts are brought about by the CBC article and image attached to this post. Last October 2019 Irving Oil experienced a systems failure and resultant explosion injuring workers. They were subsequently charge under the New Brunswick Occupational Health & Safety legislation and plead guilty as charged. (I don’t profess to have any detail of this incident, I use it as an example and launching point for discussion.)

Where does the real Safety actually exist in this scenario?

The common practice is for corporations to plead guilty and pay the fine. It has become a cost of doing business. The reason for this is because it is literally impossible to defend against the statutory hind sight bias “Every employer shall take every reasonable precaution to ensure the health and safety of his employees”. This is the exact language in the act and charges presented against Irving Oil, and if you look across Canada you will find similar language in every province and territory.

Given outcome bias and hindsight bias with a Newtonian-Cartesian linear view of events (i.e. FMEA, Fault Tree, Root Cause, etc.) investigators will ALWAYS be able to find a cause and blame, thus, there will ALWAYS be cause to charge and an inability to defend against the charge. If we look closer at those charged under OH&S legislation, the determinate factor of whether charges are laid, almost always have to do with the magnitude of the event. If the same event happens with no adverse outcome, there is often no charges. This is called outcome bias. Knowing that the outcome ended badly compels the regulator to take action, and seek blame, despite the conditions existing without harm previously or across an entire industry.

Safety driven by hindsight and with a backward view of cause and fault, is actually not safety at all. It is harm. There was harm. Safety does not exist with the absence of a negative. While I don’t advocate against OH&S regulation and compliance, much of it has helped to reach a point of good systems and practices. Safety regulation and compliance ballooned during the industrial revolution out of necessity due to employers not looking out for their workers with the introduction of techno-social systems (machinery, Taylorism). It is meant to establish a basic minimum standard, not the standard to strive toward.

There currently exists an Apoptote (flattening of the curve), meaning we have not succeeded in eliminating the worst harm and fatalities despite all of this regulation. In fact, what modern safety science is showing, is that more regulation and compliance will not make us safer, more bureaucracy may actually be making us less safe. Much of this is associated with the on-going belief in older safety models presented by Heinrich in the safety dominos and pyramid, and also Reason with the Swiss Cheese model. These are linear cause-effect models that don’t hold true anymore.

What would happen if an organization were to try and defend against charges? The public outrage over taking a morally reprehensible position of saying “it’s not our fault” when your workers are injured or killed can cause substantially more damage to an organization and labour relationships; than pleading guilty and accepting the paltry fines that are typically adjusted to organization size and ability to pay enough to be considered punitive in nature.

So how do organizations change as a result of such charges and acceptance of guilt? Often they do not. Sure, they might create better paperwork to ensure they can show how they have met the statuary inspections and requirement of the facilities and systems. However, when an in-depth non-linear analysis is completed around the same situations, most often much more context and complexity exists and regulatory compliance is never the simple answer that led to the event in the first place. Those conditions will persist.

The Macondo (Deep Water Horizon) disaster helps to illustrate this point. They achieved 15 safety awards and commendations over about 7 years. At the time of the disaster they had zero worker accidents in that period and it resulted in the largest oil rig disaster ever. They showed excellent compliance with the minimum standards of regulation. However, as a result they did not truly understand the complexities of the systems that they operated and how their organizational structure could lead to disaster.

Would have, should have, could have, failed to; investigation comments resulting from a hindsight based linear view don’t help make real improvements. It’s time for real change to legislation, let’s not seek punitive retribution for past harms, let’s seek demonstrations of forward looking, positive capacity and resilience in innovative solutions and better work culture. The aspects that actually drive a safe organization.

The answer lays in the ability to learn. As forward looking view of safety. What does it take for things to go right in normal work. Understanding work as performed versus work as imagined. Opening communication channels with front line staff. Building trust for people to speak up, and taking the information seriously with real solutions from staff.

Safety is an outcome of quality leadership. Let’s mandate resources to help companies achieve better leadership in the aftermath of an event. This is very different than regulatory compliance which should have been the minimum standard. Meeting the minimums standards can’t be the only goal. And most importantly, restorative justice. Who was harmed, what do we owe them, how to we restore safety and trust in a forward looking manner.

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