Opinion: It’s hard to believe that a government agency can be this ineffectual.

And, it’s hard to imagine if a safe workplace and public domain are government policy how this could happen. No, it’s not.

On 7 December SafeWork NSW issued a press release following a 12-month construction industry blitz aimed at reducing falls from heights which it claims has resulted in improved safety and compliance for working at heights.

SafeWork NSW executive directorTony Williams said inspectors visited 1000 sites around NSW after nine workers died in 2017 and many more were injured in an alarming spike in the number of reported falls from heights.

“Falls from heights is the number one killer on construction sites. We undertook a concentrated education campaign for tradies and provided rebates for small business,” Mr Williams said.

SafeWork NSW’s research unit published a report of findings which suggested that 74 per cent of formwork systems had safe falls systems – up 5 per cent from when the first blitz began in 2017.

They claimed that inspectors found improvement in compliance of between 1-9 per cent in 21 of the 29 safety check items.

A scatter diagram in this report shows the areas targeted. Perhaps SafeWork NSW missed Victoria Road, especially outside the Lane Cove electoral office of local member Minister Anthony Roberts. It’s situations like this that test the walking of all the talk. It evidences a time to reset and get serious.

These images were taken on the same day as the SafeWork NSW press release

The challenge for SafeWork NSW, as it is for other construction industry governance bodies like the Building Professionals Board and Fair Trading which regulate the Home Owner Warranty Insurance Scheme, is really to change industry culture and practice.

I recently took this up with Minister for Fair Trading Minister Matt Kean who agreed that some aspects of these agencies were not as up to the mark as they could be. I called them impotent and lacking in confidence to fulfil the obligations given to them under the law. The minister organised a meeting in his office with a senior SafeWork executive to discuss my experiences in dealing with his agency.

The meeting was confronting, as I was asked to re-state my impression of SafeWork’s effectiveness. This immediately put the executive on the back foot as I reeled off my experiences in reporting safety breaches over the past year via the SafeWork system.

I gave examples and pointed to a lack of changed behaviour on the referred sites and a lack of satisfactory feedback as the actions taken by SafeWork officers. I then acknowledged that the organisation in my view was under the pump with inadequate resources and at times lacking in the skills and confidence to really tackle safety more aggressively.

The projects to which I refer are a matter of public record and there is no purpose in revisiting these here.

There was a suggestion that I might be interested in joining a SafeWork industry working group. I declined as this would have in my mind immersed me in the problem not the solution.

I said that agencies like SafeWork became too concessional when the industry defended itself by claiming a lack of skills and the cost risk of increased red-tape to really comply. I put it to the executive that in my view there were no new laws required to establish the legal role of a person conducting a business or undertaking (PCBU), or for workers involved to be clear about what is required under the Work Health and Safety Act. The executive agreed.

Just a kilometre up Victoria Road from the minister’s office the public is again asked to negotiate even more challenging circumstances. The pace at which developments are approved these days seems to have little correlation with the way they are conducted.

This site is next to one that has been the subject of earlier safety breaches. There is no change in developer and contractor culture other than to get these projects built, ignoring the very real chance that someone might fall or that something may fall from above onto a worker or the public.

These images were taken on the same day as the SafeWork NSW press release

There is a solution and here it is

I was asked how I would go about changing the culture of safety and compliance in the NSW industry. I said simply – enforce the law. Do it visibly and unambiguously.

I suggested introducing a system of “yellow cards” and “red cards” – just like in sport. Everyone understands these. I proposed establishing a number of flying squads just like the RBT system.

Inspections should be filmed, and if there are breaches then issue the responsible PCBU an on-the-spot yellow card which requires them to stand down until they attend and pass a two-day OHS refresher course. They would also be required to display a suitable level of contrition.

At the same time tell the PCBU (contractor) that all work was to stop until a replacement, qualified person took over the site and made sure noted safety breaches were rectified.

I proposed a minimum $20,000 fine be issued that may in the first instance be reduced by the PCBU attending a SafeWork office within 24 hours to present a plan to improve the company’s safety compliance and attitude.

The degree to which the initial fine may be reduced would be determined by the officer once a demonstrable implementation of the plan was observed. The original responsible person may commence duties after the refresher course.

The fine is not proposed to replace or ameliorate the existing sanctions available under the Act for the PCBU or a worker. It is intended to sharpen the Act.

The second line of action should involve a red card. This is for a repeat breach of the PCBU’s obligation by the same responsible person within six months.

Here the person would be disqualified from holding that role for 12 months, be required to attend two weeks of OHS retraining and issued a $5000 fine. The PCBU would be given a $20,000 non-reduceable fine. Both sanctions would be appealable, but not to reduce any other sanctions under the Act.

This all seemed too hard. It would require new legislation – but it would walk the talk.

The meeting in the minister’s office ended cordially with an undertaking by the executive to arrange a follow up to discuss other actions that SafeWork might consider in the context of the changing construction workplace as more traditional construction moved off-site and how this may provide a forward-looking opportunity to develop ”future-fit” regulatory capabilities.

The idea was that, with new insights into changing work methods, new skills and work packaging and armed with the emerging potential of new digital management technologies, SafeWork NSW may be able to envisage a new effectiveness platform from which the industry’s prior avoidances could be reformed. They would then need to invest in future-fit regulatory skills.

The meeting occurred, and proposals put as to how new technologies may be introduced to enable more effective regulation, and how several pilot projects could be introduced where the impact of a new approach to WHS compliance may be elected by “first-movers”.

The idea was to progressively design and test several new regulatory compliance tools and to map the impact of their adoption on improved safety culture, resilience and evidence-based measures. Not business as usual. Give industry five years’ notice. Where this goes is still under consideration.

For now, readers and the industry are left with a clear disconnect between what is observable and what SafeWork NSW researchers report. For those contractors who do the right thing, there is continued amazement that the cowboys just get away with it on the basis of the risk, reward of compliance or not. SafeWork researchers are measuring the same old game using long failed tools. These reflect an industry still operating in a space between the second and third industrial revolution. At best the construction industry is still attempting to change practices by tweaking legislation that was developed in the twilight of the last century. We are now nearly 20 years into what is described as Industry 4.0. This is a national construction industry challenge.

One wonders if anyone has told the regulators that it is time to stop digging the same hole deeper. One might hope that Minister Roberts may take a fresh look at the street on which he represents the interests of the community who might expect his government to do more to ensure construction workers and the public get home safely tonight.

Adjunct Professor David Chandler is construction practitioner and industry engagement lead at Western Sydney University’s Centre for Smart Modern Construction.

Spinifex is an opinion column open to all our readers. We require 700+ words on issues related to sustainability especially in the built environment and in business. For a more detailed brief please send an email to editorial@thefifthestate.com.au

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  1. David
    I believe that by ‘failing’, that is by not enforcing the law, the Government agencies are fulfilling their REAl brief. The ‘laws’ are a conduit for promoting unreal public policy, a cover for the real policy – which no matter the cost to people is to support big business.
    Failure creates more work, it is good for the economy and makes lots of money for a small number in the industry. In con-struction, we have the massive failure to construct quality and safe buildings, and the consequence is the huge, ever-growing ‘rectification industry’.
    Then we have the ‘building dispute industry’ which likewise has grown exponentially and rewards all the lawyers, ‘experts’ and the other hangers-on in the ‘administration’ of what is an unjust system where owners generally lose again – and again. Then there is the ‘failure’ of safety for both the residents of buildings and the workers whose lives are at serious risk on unsafe construction sites across the country.
    The ‘Work-safe’ agencies (not their real names, but their trading PR ‘names’)are indeed oxymoronic. The ‘safety’ of workers is not, in fact, the goal of these agencies, but as has been demonstrated, their real roles have been to generate the mega Billion dollar ‘compensation’ industry.
    It works splendidly to benefit insurance companies whose profits are enormous; it provides lucrative incomes for those in the private sector paid commissions to NOT compensate injured workers; and then it has served to enlarge the bureaucracies, thus rewarding those who came up with the idea of administering the failed worker safety system.
    These ‘economic’ benefits far outweigh any concerns for the 125,000 seriously injured construction workers who as a result of a fall or contracting a killer disease will be put through the mill – and with most not paid the compensation to which they are entitled. The ‘failed’ construction industry, commonly referred to as ‘systemic failure’, has been fantastically successful.
    It was, however, no accident. Rather it was engineered to reward the top end of town, and the horrific and injurious consequences were known. But shamefully those damaged, the hundreds of thousands of individuals and their families, be they consumers, workers or sub-contractors simply do not count.

    1. Thanks for your comments Anne. I know they are heartfelt and come from deep knowledge of the industry you’ve investigated and written about for so long. To those new to the industry they might sound more than a touch cynical. I have to say that based on the outcomes we get, the evidence points your way. It’s nothing but a disgrace that we have people losing their bulk if not all of their worldly means to housing, and sometimes their health and lives.
      It’s like institutionalised theft, from one sector of the community to another.