Where are the regulators?

Things never work quite how you expect. It’s a subject of endless fascination for me. The rule of unintended consequences means that things never really quite work the way you hope.

Health and safety regulators are certainly not immune to that effect.

The external accountability/responsibility system

Health and safety is based to a large degree on a concept called the Internal Responsibility System, first brought forward back in the 1970s. This system looks at a series of overlapping responsibilities to ensure clear accountability within organizations. Each level had a direct responsibility to ensure the level below was meeting its responsibilities. Responsibilities can be delegated and flow down through an organization. Accountability flows upward.

What happens when the Internal Responsibility System breaks down? What happens when things are no longer being done safely, or a gap has allowed error to creep in? Eventually, these gaps or errors become incidents. Hopefully, not incidents that result in serious harm. However, in most jurisdictions, a serious incident requires reporting to the regulator.

The regulator (External accountability system) is meant to add to the internal responsibility in that the regulator will enforce the company’s commitment to a safe workplace and whatever the company has committed to in its procedures or policies, even if those exceed the minimum standard required by the law.

The external accountability system doesn’t always come into play only in serious incidents. Visits by regulatory officers can result in voluntary promises to move things into compliance, or there can be orders issued to stop work. These powers are granted to the regulators because, in a real sense, they are the last line of defense. They are the final barrier against loss.

What do we expect?

When I taught at post-secondary institutions, there was often a discussion in safety courses about what was expected from regulators. I could sum that up in a word – action.

When a worker calls the regulator, that is their last hope for successful intervention in a difficult situation. They expect that someone will take their concerns seriously and assess them against the legislated requirements. They expect a fair and objective resolution.

The public expects regulators to hold employers that fail to meet minimum standards to account. We expect that, in cases of serious harm or fatality, regulators will charge the company, as well as its managers and directors, with appropriate offenses to hold them accountable for failing to provide a safe workplace.

Employers even have expectations of regulators. They hope that the regulatory officers are pragmatic, tactful, and objective. They expect regulatory officers to have deep expertise, or if they do not have the expertise, to keep an open mind and seek to understand. Most employers are of the opinion that regulatory officers could probably better spend their time at other workplaces.

So what is actually happening?

Canada is fairly unique in its regulatory requirements and activities, as it comprises 10 provinces and three territories, each with its own health and safety legislation and regulatory agencies.

What that means is that something that would net you a regulatory order in one jurisdiction may result in a mildly pleasant conversation in another. Things are not always what you’d expect.

In Canada, we have a clear structure in terms of promoting workplace health and safety. Different stakeholders have specific focuses. The health and safety law is very clear in that the employer is responsible for the workplace and everything that happens in it. Outside of the employer, there are safety associations that are designed to assist employers in meeting the requirements of the law and building a safe workplace. Then we have the regulators, who are there to enforce the law and ensure that employers meet the minimum requirements outlined in legislation.

Regulating differently

I saw this made-up term recently. Just as health and safety have fads and safety differently, regulators can play as well.

Some regulators see their officers as ambassadors of safety and encourage their officers to form relationships with employers and help improve health and safety systems. The watchword for these regulators is – coaching. Positive interactions and conversations with employers, they believe, will help encourage those employers to better understand the requirements and make them better able to comply with those requirements.

These regulators can favor administrative penalties instead of prosecutions. Administrative penalties can penalize employers while successfully holding no one accountable. Large administrative penalties make for good press. Employers successfully appealing or reducing them doesn’t get much notice. These regulators would say that making any improvement can save lives and reduce human suffering. Who could argue with that?

The question is, does the regulator bear accountability for that, or are other stakeholders responsible? Are enforcement and prevention truly synonymous or exclusive? Perhaps all stakeholders must work together in order to be fully effective.

The enforcer analogy

In health and safety circles, there is often derision over the health and safety cop or the enforcer. Health and safety professionals know that this is not something that leads to effective interventions or an effective health and safety system. However, they are inside the company using influence and advice to build a health and safety system in order to keep employees safe.

If the health and safety professional is not the enforcer, then who is? If asked, most people would say it’s the regulator. What if the regulator doesn’t believe that?

Ultimately, the responsibility must be held somewhere. There must be accountability, or things do fall apart. Who holds employers accountable when they put worker safety and lives at risk?

Where is the disconnect?

I’ve been lucky enough to be part of some conversations about regulatory approaches with people from all sides.

Many companies have a health and safety professional or practitioner who is responsible for helping the company identify and manage risks. There is a program or system in place that should be continuously improved to maintain workplace and worker safety.

Smaller employers may not have a health and safety practitioner and often turn to the Safe Work Associations for assistance. Safe work associations are generally funded by the Worker’s Compensation organizations or the regulators. That funding allows them to provide some support, coaching, and training.

Of course, we expect that the regulator engage in enforcement and hold employers accountable to the minimum standard defined by the law. However, it seems that if they perceive safe work associations as ineffective, they can begin to take on that role.

Points to ponder

Let’s examine health and safety from a purely carrot-and-stick perspective. We have the health and safety practitioners in the organization dangling the carrot, showing the payoff and rewards for working safely and using appropriate hazard controls.

For some, they look to the Safe Work Association to get the training they need to be able to encourage employees to be engaged in workplace safety. The services of these organizations can vary widely.

Where the systems fail, there is an almost universal expectation that the external responsibility system comes into play. That is where the regulator would come into play to hold the employer accountable using their legal authority (stick). That includes situations where workers have reached out because their employer is not effectively addressing hazards. It also includes situations where there has been a catastrophic failure or a serious incident. After a serious incident, it is very human to want to know who is responsible or who is accountable for that failure.

With all those things being somewhat true, and a regulator is sliding towards coaching, valuing relationships and positive interactions, who is doing the whole accountability thing? Are workers part of these positive interactions?

If the regulator assumes the mantle of prevention, does it also share the responsibility for occurrences in the workplace? A ridiculous statement? Could an employer argue they were following the direction/advice of the regulator?

Is it important that a regulator have a good relationship with the employer they are investigating for offenses? If a regulator is trying to fill the role of the safe work association, does that degrade their effectiveness?

I would say, at the end of the day, what everybody wants from regulators is certainty or predictability. Everyone who interacts with the regulator expects them to play by a certain set of rules outlined in the law. Everyone expects that they will enforce the requirements of the law, even if that is unpleasant.

I’m sure workers would much rather have a reticent employer receive in order to fix a problem that poses a direct hazard. I’m also sure that where a worker loses their life, society expects that someone will be held accountable. I would stress that it is someone and not solely a corporation.

Regulators and accountability really go hand-in-hand. There are entire groups of people whose purpose is to facilitate workplace safety and prevention.

If your regulator is trying to actively promote “workplace safety,” who is holding employers accountable? Maybe we need Regulating Effectively?