A person conducting a business or undertaking (PCBU) has a primary duty of care to ensure, so far as is reasonably practicable (ALARP), the health and safety of workers. A PCBU owes a primary duty of care to workers if it:
- engages or causes the engagement of workers to carry out work, or
- directs or influences workers carrying out work while the workers are at work in the business or undertaking.
Workers also have to exercise Due Diligence under the Regulation to mutually care for their safety.
The Law and Regulation hold PCBUs and workers accountable to their duties under the Law. So, when something goes wrong and someone is harmed at work, the purpose of the law is to find blame and seek accountability. This often results in some form of justice, compensation and recognition of loss.
In other words, blame seeks to fix things as best it can! The slogan ‘blame fixes nothing’ is the stupidity of HOP spin. The principle in law is not sloganeering. Slogans are the work of propagandists making money from an industry lacking in critical thinking skills.
A PCBU can be an organisation or an individual.
The Law and Regulation make very clear who is liable when things go wrong. The Law also makes clear that the worker is also responsible for ensuring a safe workplace. It is a mutual obligation.
A good place to start in understanding the obligations of a PCBU is Smith, G., (2011) Management Obligations of Health and Safety. CRC Press. Sydney. Another good source is: Smith, G., Proving Safety, Wicked problems, Legal Risk Management and the Tyranny of Metrics. Wayland. Perth.
What we learn from Greg through case law is that the court and legal system seek to find blame so it can fix, respond or compensate for a problem/loss. The Government also have Regulators to enforce compliance with the law and hold PCBUs accountable. You can read more on the nature of prosecutions under the WHS Act here: https://www.comcare.gov.au/scheme-legislation/whs-act/regulatory-guides/prosecutions
Prosecutions under the WHS Act, enact penalties as determined by the court in accordance with the nature of the offence. Indeed, the court can also proceed with offences under the Act to a prosecution under criminal law. You can read more about the process here: https://www.worksafe.vic.gov.au/worksafe-and-court-system
In my jurisdiction (Australian Capital Territory), one can read about a list of prosecutions here: https://www.worksafe.act.gov.au/laws-and-compliance/enforcement-and-prosecutions/prosecutions/list-of-prosecutions
This is the reality NOT the myths, spin and slogans of HOP.
The truth is, slogans and spin like ‘blame fixes nothing’, ‘error is normal’, ‘pre-accidents’, ‘learning from normal work’ and imagination as wrong, are a con. Like all cons, follow the money trail.
The source of the word ‘con’ comes from ‘confidence trick’. The con, is about winning trust through branding, spin and delusion and the only thing that changes, is the bank account of the one enacting ‘the con’.
The best place to source reliable and realistic information about safety is NOT in sources of spin, propaganda and slogans. Slogans are NOT principles!
The best place to start is with some critical thinking (https://safetyrisk.net/critical-thinking-a-checklist-for-safety/), critical discourse analysis (https://safetyrisk.net/critical-theory-critical-thinking-and-safety/) and deconstructing the ‘smoke and mirrors’ language of the con.
If you want to learn any of these skills, we can offer coaching here: admin@spor.com.au
What to do next?
Start with a few simple questions:
What do you get for your money spent?
What is the methodology?
What is the method?
And, after all the noise, spin and con, what changes?
If all that remains is the rhetoric of the con, you have been conned.
Prof. Robert Long
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