“New proposed Work Health and Safety (Industrial Manslaughter) Amendment Bill 2015! What’s the potential issues for Businesses?

South Australia Greens MLC Tammy Franks wants employers who cause the death of a worker through negligence or indifference to face penalties of up to $1 million or 20 years in jail. These tough new changes to South Australia’s workplace safety legislation proposing to hold employers criminally liable for the death of their employees. The proposed manslaughter bill would see employers who cause the death of a worker fined up to $1 million or jailed for a maximum of 20 years.

Tammy is suggesting that numerous parties may share liability and it will be up to the courts to determine which party is responsible in the unfortunate event of a workplace death

 “Multiple parties may be on site and potentially responsible, so a court will need to ascertain where liability exists,” they say.

 The key changes under the proposed bill would be to boost the penalties for an individual who causes a workplace death from $300,000 or five years’ imprisonment, or a combination of both to 20 years’ imprisonment.

 Under the new law the penalty rate for officers or business owners would be raised from $600,000 and five years’ prison to $1 million and a sentence of 20 years.

 “A person can only be liable if they have responsibility for health and safety (decision making power), such as an Operations Manager or Health and Safety Manager,” is the way it reads. Under the bill, an employer will be guilty of an offence if he or she breaches the duty of care, knew or was recklessly indifferent that the act or omission constituting the violation would result in a substantial risk of serious harm to a person, and if the breach resulted in death.

What are the outcomes of such fearful penalties to businesses in industry? Another question that comes to my mind is, “what learnings do we really get out of penalties such as jail terms and large sums of money? In my experience and through some research, very little, if any information is published or available to public, so how do others learn from this? I felt when the Harmonisation Laws came in, the fear of jail drove most of us in safety and business management down the line of legal compliance “ass covering” from possible litigation. I also felt it compelled our safety world to go down the dictation, and blanket rule road of compliance and systems to again cover backsides. Rather than consider and focus on our people in our business we treat them like robots and give them no choices, the by-products seem to be things like, tick and flick of documents, disgruntled employees who feel worthless and not trusted or capable of making adult decisions. Is this what safety is supposed to be all about in business?

It brings to mind a time I spent in the Coal Seam Gas Industry in QLD where we were trying to manage risk of explosion during a combined construction and operations commissioning stage on a compression station. All Safety people and most managers were more worried about signing off a dispensation document to shift responsibility of risk ownership rather than mange the risk, the legal fear and doubt it drove was very real. Seeing how the fear of prosecution influenced people to think that a dispensation paper was going to make the risk all better just blew me away, I remember thinking, “this isn’t how we manage risk in business, is it”? This wasn’t the first time high risk activities in a business were driven by legal compliance and fear of heavy fines or jail, I wonder how many have actually been prosecuted through the mentality of legal compliance?    

In the Behavioural safety world, they thrive/d on this kind of legal stuff, through the fear itself they would leverage off to gain work, which I used to question. The one thing we were taught in Behaviour Science Technology (BST) was the old ABC analysis “Soon Certain Positive”, where is the soon certain positive in jail and prosecutions? I thought jail and prosecutions would be “Later Uncertain Negative”, which would mean that this is in no way going to influence or change behaviour in anyway. Over the 20 plus years I have been in the safety game I have learnt that we never stop learning and we don’t have all the answers and nor can we.

Is it perhaps that we need to re-think the idea of punishment for safety management failures and think of ways the legal system can perhaps help the industry learn from one another’s mistakes?

How can the regulators, safety legal system and Work safe and health industry help one another out with shared learnings and great ideas of innovation? would this be something that could perhaps work in our industries Safety? I remember an inspector I had the pleasure of working with in industry who was trying hard to cross-pollinate safety ideas from one company to another, what a great initiative, I just hope it spreads!

Should we be re-thinking the way we interoperate the act and reg’s and respond to it with our people people in the forefront of our mind?

Should we be refining our systems and focusing on the value add that they do or do not give our people and ask, do they really understand them? Is there too many policies and procedures, that they physically can’t remember them all because we have flooded them? Are our systems simple enough that they are mirror reflected in practice at all levels?

Should we get back to basics of empowering our people and removing blanket policies like mandatory gloves and not allowing the use of fixed blade Stanley knives? What by-products have you experienced through our Safety, rules, laws and potential prosecutions? And do they worry your business? How can our businesses become more resilient to risk, and create collective mindfulness?      

Nokia! What happened

I read an article with the headline - “Crying Nokia CEO ended his speech saying they didn’t do anything wrong, but somehow, they just lost”. I remember a time when the only phone I would buy was a Nokia. I wouldn’t even consider another brand of phone as Nokia was the only one! How is it now, the management team of Nokia say they did nothing wrong to cause business decline? Do they think shareholders and employees feel they did nothing wrong? Is it acceptable that if our businesses fail, we cry ‘it wasn’t our fault’ ‘there’s no work’ or ‘the market is down’? We need sense-making of the whole situation. Why did Nokia become so tightly coupled? What can we learn from this to allow us to keep growing in the current climates?

There were businesses that thrived through the tough times of GFC and continue to grow through currently perceived tough times. Just have a look through some of the BRW Fast 100. What did Nokia do or perhaps not do, to end up having to sell the company to Microsoft? On the other hand, their competitors Apple and Android took the market by storm? There are many key factors that we must question, to be able to learn from. We need to identify errors in business, to become more resilient in the marketplace. It amazes me how in times of the GFC loosely coupled business with traits of High Reliability Organising (HRO) can make billions. Nevertheless, we see here the results of a tightly coupled business; Nokia had great intentions however did not use the potential of world view and consider what was going on around them (collective mindfulness and sense-making). It may seem tough for your business at the moment, as times are perceived as tough. The question is, “are you heading in the same direction as Nokia”? Blinded by the known unknowns and unknown unknowns, we only know what we know and don’t know what we don’t know, how can we learn to see these unknowns?

So what is it to discover and learn? Personal Identity is about giving people a distinct, stable sense of who they are, and what they represent in the organisation. Did Nokia’s management have too much hubris at hand when considering their business identity in the marketplace, making it difficult to imagine that poor judgment could be made by such ‘experts’.  Was their over confidence of identity caused by having had a successful leading business in the marketplace for a long time? Was Nokia’s management retrospect shallow and their grasp loosened, did they put too much faith and anticipation in the existing marketplace not changing or wanting change? Was there “disorder” in the business that perhaps created “confusion” and insecurities with management, employees and the marketplace? Did this cause the problem of no thinking for the trouble that was arising in front of them? Was sense-making not enacted, and no challenging questions asked to evoke reaction, which lead to the disastrous crash in their market holdings?

There are key elements to consider when trying to be a “High Reliability Organisation”, one of them being “social context” which is all about being interactive, relational, and allows coordination of action over alignment of cognitions, mutual acknowledgement and respect for agreement. Understanding loose over tight coupling of systems and respecting strategic communication over unrestricted candor. Was this one of the key missing pieces in Nokia’s management strategies and would this have made a difference?

Some other important considerations are also to respect and considering critical reality of worldview, communication and consensual validation, and shared relevance is an important part of collective mindfulness, validated grammar is important in social context to help conform sense-making. Did management consider personnel’s views or for that matter consumers? Did they reach out for customer’s needs? How can a business sell more to its customers if they don’t understand what their customers actually want? It looks like no visionary imaginations were considered, so when boundaries and hurdles emerge, like change in product interest in the marketplace, they had no planned alternatives for the interruption so reverted back to only what they know. Nokia joined Windows, which may have tightly coupled them to a fixed product that was not adaptive. In an employee memo that surfaced in 2011, Elop infamously described Nokia as being on a "burning platform", blaming the "war of ecosystems” between iOS and Android as part of Nokia's overall struggle, and asserting that the company needed to make major changes to its operation. Was this person seen as a trouble maker or even a dummy with not enough knowledge to be making such statements?

Salient cues, in organisations is one of the most important principles of all, cues are like tiny warning bells that people identify within a full-blown story, was it that Nokia management were not alert to the warning bells of the true changes in the marketplace? Were they not aware of their competitors out of the box designs or did they think the opposition was of no threat? Was “plausibility” applied to Nokia’s business strategies? Plausibility allows people to create stories about probable outcomes from an existing scenario (Imagination / creative mind). It also triggers action and potential new inputs that could revise the original target. When strategically planning, plausibility helps create an environment that considers continual changes throughout the plan. It helps us review the end target and also encourages us to keep improving the strategy with new ideas, was this missing in Nokia and would it of helped?  

In August 2011 Chris Weber, head of Nokia's subsidiary in the U.S., stated "The reality is if we are not successful with Windows Phone, it doesn't matter what we do (elsewhere)." He further added "North America is a priority for Nokia because it is a key market for Microsoft." Nokia then focused only on China and North America, is this being too tightly coupled in business marketing strategies, losing market growth potential worldwide? Was there focus on markets that were already flooded with competitors? Should they have considered other markets where competition was minimal? The successful companies think differently, they are resilient against factors – be they government or economic – that are out of their control, are not afraid of reinvention and are quick to take advantage of change. For some this means a name change, but also it’s about rapidly responding to changing customer demographics. It may seem counter-intuitive but entrepreneurs Oscar Martin and Chris Wirasinha, who started the successful pop culture website Pedestrian TV, started out in street press. “Our original business and plan for Pedestrian was quite different to what it has turned into,” Wirasinha says. “Our first product – the world’s first free DVD magazine, called Pedestrian, has transformed over seven years into the thriving online media business that we’ve created today.” Being nimble in the market place is vital to growth.

Valuable lessons can and should be learnt from our own and others errors, perhaps our mindset should see these errors as opportunities to grow through the learnings rather than think of it as failure. Are we becoming too blinded to our own talents, skills and knowledge? Have we had so many wins that the idea of failing seems impossible? Do we have a culture that encourages open communication? Are employees comfortable enough to raise problems or do they prefer to hide these from management? Are we allocating enough funds to education, innovation and business development? What other questions should we be asking of ourselves and our organisation?