People in glass houses shouldn’t throw footballs07 Apr 2016, Posted by Inside OHS articles in
The Essendon supplements regime was back in the news recently after ABC’s Four Corners program exposed the Club’s hard line response to junior player Hal Hunter’s quest to obtain information about the substances he received in 2012 and 2013.
A dream for the media and lawyers, this saga continues. Just to remind you of the story so far: Essendon alerted the AFL and the Australian Anti-Doping Authority (ASADA) to supplement use in February 2013. Putting aside the various actions involving managers and advisers, the AFL Anti-doping Tribunal found in March 2015, in a case brought by ASADA, that the thirty-four players were not guilty of using banned substances.
At the time the AFL CEO Gillon McLachlan said in a statement: “It has been the AFL’s view, and the view of Essendon’s own internal report, that the players were victims of a reckless program which has hung over the players and the competition.” In April 2015 the World Anti-Doping Agency (WADA) appealed this decision in the Swiss-based Court of Arbitration for Sport (CAS).
In January 2016 CAS upheld WADA’s appeal. It said in its announcement it had established “to its comfortable satisfaction that Clause 11.2 of the 2010 AFL Doping Code (use of a prohibited substance) has been violated and found by a majority that all players were significantly at fault”.
And so we have a case study that illustrates well two different world views of how responsibility is allocated in organisations.
Darren Kane, a sports lawyer waded in with a Sydney Morning Herald column on January 15 saying, “If the Class of 12 were sitting in my boardroom, I would demand they give earnest consideration to opening their collective shoulders, to pursue the Essendon Football Club with extreme prejudice. Any employer has an immutable responsibility to take reasonable care for the health, safety and welfare of its employees”.
Strict liability principle does not consider intent
On the other hand, the “strict liability” principle of WADA considers individual athletes have ultimate responsibility. According to the WADA website this principle “means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault”.
I think many of us in Workplace Health & Safety (WHS) were quite shocked by WADA’s success in imposing the strict liability principle in this situation. It seems unfair and illogical in the face of our acceptance of the employer responsibility for the duty of care in workplaces mandated in WHS legislation, and the alleged management authorised supplement program.
But could our own ideal be honoured more in the breach than in the observance?
In recent years I have been interested in the methodologies used in futures studies. One of the principles in this area is that to understand the future we need to have a better understanding of the present. In particular, we need to dig deeper; to go below superficial information on trends and the strengths and weaknesses of current systems.
To understand enablers and blockers of transformational change we need to know the worldviews and deeply held beliefs in our society.
Human error at the core of OHS challenges?
A literature search I was involved in a few years ago looking for such information found an interesting sociological paper that sought to determine the theories (beliefs) that had prevailed in OHS over the past two centuries. The authors found there had been, and continued to be, only two theories of “accident causation”: human error or environmental risk factors. Or as the authors put it: “Causes of occupational accident are found either in the workers’ capacity to handle hazardous situations, or in external causes, like very long working hours, dangerous machines and the increased pressures of work and speed of production.” They argued that in modern OHS, which began with the second industrial revolution in the American steel industry early in the 20th century, the theory of human error predominates.
So while the hierarchy of control principle is something we WHS practitioners hold dear to our hearts it seems this may not be a worldview shared with all stakeholders.
Despite a legally mandated obligation on employers to provide a safe and healthy workplace? There is evidence employers will tend to default to a careless worker view. Take behaviour safety programs for example. These became popular in the 1990s and were supposedly developed for mature OHS programs which had reached a limit in performance improvement through environmental controls.
However, throughout the noughties there has been concern expressed by many in the field about the introduction of behaviour safety programs to immature OHS management systems, so that is the predominant approach.
Another example can be found in the reluctance of employers to address the psychosocial hazards in the workplace. To date employers have given preference to increasing the resilience of workers and providing support to distressed employees over interventions aiming to address the way work is organised and the way people are managed.
I recall a fascinating presentation authored by McCallum, Schofield and Reeve from the University of Sydney, at the Ninth (and last, more’s the pity) National OHS regulatory Research Colloquium in 2011 at ANU. Their research published in 2009 confirmed that employers tended to have a view that OHS was a matter of managing individual safety behaviours. In contrast regulators, their follow up research found, had a view that OHS was an organisational-wide matter for which managers were responsible.
We are now moving into an era where workplaces are grappling with complex health conditions arising from a combination of work-related and non-work-related risk factors. In consultations I have been undertaking in my capacity as Work for Health Advisor for Comcare, relating to a cross-sectoral national private, public and not for profit partnership to improve work participation, a rather confused picture of the allocation of responsibility for health in workplaces is apparent.
On the one hand employers are saying they don’t want to be responsible for wellbeing, but it is clear that they are willing to assist on some issues, e.g. domestic violence; and are, frankly, desperate for help with mental health. This is not to say there should be any weakening of the employer responsibility to provide a safe and healthy working environment. Safety is a necessary foundation if employers want the benefits of investment in workplace health promotion. However, it appears after two centuries we may have a new theory – one of shared responsibility.
So as we watch the AFL tussle with the question of who was responsible for the health of their young players we shouldn’t scoff too loudly. As my grandmother used to say, “People in glass houses shouldn’t throw footballs”.
First published in Thomson Reuters Inside OHS, 06 April 2016
Inside OHS Editor: Stephanie D’Souza; (02) 8587 7684; Stephanie.D’Souza@thomsonreuters.com