A corporate dilemma: to be a learning organisation or to minimise liability

Companies are faced with a dilemma when it comes to information about safety problems. Should they seek out such information and learn from it, so as to reduce the risk of accidents, or should they suppress it, so that when an accident occurs they can not be held liable for failing to act on information in their possession? The disadvantage of suppressing such information is that it creates organisational learning disabilities. It also promotes public outrage that may turn out to be very costly. Many companies in the US view information about safety failures more as a legal liability than as a learning opportunity. This paper argues that in Australia concerns about legal liability are misplaced. The paper takes the explosion at Esso’s Longford gas plant in 1998 as a case study and shows that so called “guilty knowledge" played no part in the record fine imposed on Esso. Furthermore, guilty knowledge was irrelevant in the subsequent compensation cases brought by both the workers and their families and by businesses affected by the loss of gas supply

An evaluation of certain criticisms of the NSW OHS Act

This working paper is part of a proposed larger work on individual culpability for corporate OHS offences. It is therefore not fully self-contained. It may be useful to read first the companion working paper, “The Gretley Coal Mine Disaster: Reflections on the Finding that Mine Managers were to Blame.” The present paper deals with some of the arguments mounted by business groups following the Gretley convictions. Comments and corrections are invited

New strategies for safety regulators: beyond compliance monitoring

It is often assumed that the role of regulatory agencies is to bring about compliance with regulation. This makes sense in some contexts. For example, consumer protection agencies aim, among other things, to ensure that traders comply with regulations prohibiting misleading advertising. It may be a matter for the courts to decide whether something is misleading or not, but the law is relatively clear and the concept of compliance is relatively unproblematic. In the case of safety regulation, however, matters are more complex. The focus in this paper will be on safety in an organisational context – for example, safety at work, or safety on public transport. I shall argue that in this context the meaning of compliance is often problematic and that a focus on securing compliance may not be enough to achieve the regulatory goal of safety. Safety regulators may need to go beyond monitoring and enforcing compliance. The purpose of this paper is to outline a number of ways in which they may do this. What is distinctive about the regulation of safety is that it is the regulation of risk. Safety regulation cannot simply prohibit harm, as one might prohibit anti-competitive conduct. So-called ‘accidents’ are indeed accidents in the sense that they are unintended, and it makes little sense to prohibit them. In these circumstances the aim of regulation can only to reduce the risk of harm, not to prohibit it. The point can be put another way. It is conceivable that an employer may have done all within its power to prevent harm, and that an accident may nevertheless occur as a result of an unforeseen and unforeseeable set of circumstances. Companies should only be guilty of an offence if they have not done what they should have done to reduce the relevant risk. It is this, not the harm, that is the offence. What sort of regulatory tools are open to regulatory regimes, which seek to reduce risks to safety? One strategy is to enact and enforce preventive regulations, that is, regulations which specify things that should or should not he done, rules which, if complied with, will keep risk within acceptable bounds. Because such regulations prescribe detailed “do”s and “don’t”s, they are often described as prescriptive

The Gretley coal mine disaster: reflections on the finding that mine managers were to blame

This is truly a working paper, a step along the way in a larger project that is intended to culminate in a book on the issue of individual culpability for corporate OHS offences. The paper is therefore not a complete account of the issues and is more in the nature of an empirical segment of the larger work. The broader context will first be sketched, very briefly, to situate the present paper. Two significant developments are occurring in Australia and overseas in relation to OHS offences. The first is the increasing resort to the prosecution of senior company officers, as well as the corporate entity, under due diligence provisions of occupational health and safety legislation. That is the focus of this paper. The second is the rise of industrial manslaughter and workplace fatalities legislation aimed at individual directors or managers. This is generally seen as a way of dealing with exceptional cases of “rogue” employers who are reckless with respect to the welfare of their employees, people whose culpability is hardly in doubt. That is not the subject of this paper, although it will be dealt with in the final work. In much Australian OHS law now, where a company is proved to have committed an offence, its senior officers are deemed to have committed the same offence, subject to various qualifications. The purpose of punishment in these circumstances is unclear. On one view the purpose is to provide an incentive for senior officers to attend more diligently to their OHS responsibilities. This is a version of the deterrence justification – what is being deterred is insufficient attention to OHS. Another justification is that these individuals are personally culpable and that they deserve to be punished. These two justifications are very different in nature. Deterrence is a consequentialist justification; and immediately gives rise to an empirical question – does punishment have the intended effect? Desert is a moral idea, more a matter for debate and discussion than empirical evaluation. This paper is concerned with the prosecutions arising out the Gretley mine disaster in 1996. It examines the findings about the culpability of the individuals and corporations prosecuted. The paper contains two draft chapters from the proposed book. Comments and corrections are invited

Effects of housing on homeless individuals' glycemic control

Homelessness has long been a part of society and is defined by a lack of permanent residence. The approach to homelessness has varied with time and recently an effort has been made to eradicate it in the United States. Several studies have shown the deleterious effects of homelessness on an individual’s health and the cost it brings to society. Others have demonstrated improvements in cost when these individuals are provided “low threshold housing.” Low threshold housing is an approach which seeks to house individuals without many of the requirements previously in place, such as sobriety or employment. This is becoming more widely implemented. The effect of low threshold housing on specific common health conditions remains to be seen. Diabetes is an extremely common health concern which affects both the housed and homeless equally, however, it is markedly more difficult to address while homeless. This study will seek to evaluate the effects of housing upon homeless individuals diabetic control. A cohort of newly housed individuals with poorly controlled diabetes will be selected and their glycemic control documented for the year following housing. Glycemic control will be measured via an individual’s Hemoglobin A1C at 3-month intervals. The values will be compared and evaluated for significant change. This information will allow us to evaluate the effects of housing on this common medical condition and to make appropriate changes to policy going forward