Robens and Pre-Robens

COMPARISON OF ROBENS AND PRE-ROBENS
The 1972 British Robens report, Safety and Health at Work, transformed the attitudes and organisation of international and Australian occupational health and safety (OHS) from prescriptive to process style regulation (Johnstone, cited in Brooks 1990; Robens 1970-72). Robens changed the roles and responsibilities of stakeholders which led to the systems and procedures of today. The main strengths of Robens’ philosophy will be analysed by comparing the similarities and differences between the old and new OHS legislation. Through the comparison of pre and post-Robens legislation, valuable insights can be gained for the future of OHS.

Pre-Robens OHS legislation in Australia was based on the traditional British Factory Acts which Robens (1970-72) deemed to be unsatisfactory, ad hoc, haphazard, and difficult to understand and update. The quantity and complexity of the nine acts and 500 regulations led to their fragmentation and was counterproductive to safety, and even omitted some workers (Brooks 1993; Eddington 2009; Johnstone 2004; Robens 1970-72). Robens (1970-72) considered there to be too much law which was overly prescriptive and specific, complex and inflexible. Pre-Robens legislation addressed physical hazards rather than the attitudes, capacities and performance of people and their organisational systems.

The Robens Committee advocated the enforcement of the law through a new administrative mechanism rather than judicial procedures (Taylor, Hegley & Easter 1996). Robens (1970-72) deemed the old law to be punitive, unprogressive and paternalistic. It was dependent on state regulation with little involvement by workers or unions (Woolf 1973). Furthermore, it was difficult to administer and enforce, with a “daddy smack” (Eddington 2009, p. 3.13) approach to regulation. The system was failing with under-resourced inspectorates, inadequate penalties, and court procedures that were seldom pursued (Brooks 1990; Eddington 2009; Johnstone 2004; Ridley, J & Channing 2003). Consequently Robens thought the supervision and enforcement of government was over-regulated and counter-productive. It led to apathy being attributed as the main cause of accidents at work (Brooks 1993; Robens, cited in Johnstone 2004).

Australia gradually adopted Robens’ unified national approach to administration, and moved away from the existing complex, specific standards to a smaller set of broad, flexible general duties for workers (Robens 1972). The new legislation was supported by the labour governments and unionism of the 1970s and 1980s. It was driven by concern about the cost of industrial injury, illness and death in a time of increasing industrial competitiveness (Johnstone 2004; Robens 1972).

Rather than the state prescribing, policing and penalising, the post-Robens legislation of today is non-specific, generic, participatory and self-regulating. The legislation enabled the easier updating of regulations, voluntary standards and codes of practice under the acts. However the altering of legislation is still a lengthy process due to tripartite agreements (Eddington 2009; Robens 1970-72). The regulations changed from being prescriptive to being based on performance and process.

Apathy is addressed through broader standards, general duties, education and encouragement (Brooks 1993). Instead of being given specific instructions, the duty holder now has responsibility to work out the best, most efficient method to achieve safety standards and is required to increasingly document the process (Robens 1972). Inspectors prefer to advise rather than prosecute, consult and educate rather than coerce (Johnstone 2004).

However critics believe the culture of enforcement as traditional state regulation remains, and that the system was merely streamlined in an inexpensive manner (Lingard & Rowlinson 2005). The law continues to have shortcomings with duty holders being prosecuted for not doing everything reasonably practicable when there is a lack of specific instruction and education (Brooks 1990).

Robens (1970-72) influenced OHS duties, responsibilities and outcomes. He advocated self- regulation through consultation, both within companies (among workers, employers, safety committees and representatives), and also at an industry level (between government, unions and industry bodies). His belief in proactive management and the consultation of committees gave employee safety representatives additional powers with the ability to direct occupiers to cease work (Tasmania 1995, r. 37). Post-Robens legislation covers more workplaces, work processes and hazards, extending duties to designers, suppliers and manufacturers. Regulators today advocate that health and safety issues are resolved through “… general duties, good management and the involvement of workers” (Workplace Standards Tasmania 2007, p. 4).

Robens shifted the onus of responsibility to the duty holder with the systems based approach of general duties. Firms are encouraged to develop policies, annual reports and occupational health and safety management systems (OHSMS), with their application in the workplace being used as a measure of their compliance. However, critics remark how such documentation is often unrealistic administration by managers rather than participation of workers (Walters 2004, p. 23). The common law duty of care now rests with businesses which are accountable for the organisation of the reasonably practicable assessment and management of risks. Employers rather than the state are responsible for the provision of safe environments, systems, plant, substances, welfare, information, instruction, training and supervision. Duty holders are required to spot hazards, assess risks, fix problems and evaluate results (SAFE) (Eddington 2009; Hutter 1993; Tasmania 1995, s. 9; Walters 2004; WorkCover Tasmania 2008). Owners now participate rather than being passive (Ridley, J 2004). Workplaces inspect their own premises, instead of relying on the inspectorate (Eddington 2009).

Inspectorates in the Robens’ model rely on greater cooperation with employees through the provision of information and advice (Brooks 1993). Contrary to the punitive factory style inspectorate, regulators now facilitate compliance with more flexible legal sanctions. They assist employers giving information and advice rather than specific directions (Robens 1972; Workplace Standards Tasmania 2009). This puts the responsibility back on to the company to safeguard the inspectorate from blame. However the public and even the courts still expect the inspectorate to provide an auditing function and it still gets blamed in the case of an incident such as the Beaconsfield mine disaster. In comparison to the specialised divisions of the past, inspectorates are unified and undertake administration, inspection and enforcement. Regulators have a wider range of enforcement tools including infringement, improvement and prohibition notices with increased financial penalties and possible prosecutions. Yet studies have shown that penalties are still not enough of a deterrent. The fear of damaging public opinion is what concerns chief executive officers of organisations today (Gunningham 2007).

Australia’s Robens style legislation has only just kept pace with technological, social and economic change with the increase of non-standard work (small business, part-time, casual, contract, home-based and self employment). Reduced worker involvement and declining union membership, continue to counteract OHS (Johnstone, Quinlan & Walters 2005; Mayhew 2002; Soloniemi & Pekka 2005).

Robens continues to influence the future of Australian OHS legislation which struggles to remain “…relevant, clear, practicable and not unnecessarily prescriptive” (Government of Australia 2009, p. 10). Tasmanian legislation still confirms the relevance of the Robens’ philosophy, with similar goals to avoid overregulation and for more education about duty of care, obligations, good management, work practices, organisation of work and behavioural factors.

Governments are struggling to get the balance and priorities right, with general duties still prevailing over good management and worker involvement (Workplace Standards Tasmania 2007). Physical hazards often take precedence over behavioural and organisational hazards such as work organisation, practices and conditions. Studies have found that psychosocial hazards such as stress, fatigue and violence increasingly contribute to occupational diseases such as cardiovascular disease, musculoskeletal and mental disorders (Zeytinoglu, Lillievik & Seaton 2005). Inspectorates aim to offer more proactive advice and education rather than reactive, investigative work which often takes precedence (Workplace Standards Tasmania 2007).

In hindsight Robens’ goal for a more unified, integrated system has been slow and only partially achieved with ten separate statutory regimes (Australian Government 2004; Ewing & Williams 1995). Yet there are still anomalies and inconsistencies, unnecessary complexity, duplication and inefficiencies. Although Australia has a national OHS authority in Worksafe Australia, each state and territory has its own separate institution, with acts and regulations to manage, administer, provide training and collaborate with industry safety bodies (Johnstone 2004).

Australia aims to further unify OHS with a proposed national act and by aligning the name of each state and territory with Work Safe Australia. The new model act proposes to harmonise legislation as “… workplace injury and disease in Australia is a significant human and economic issue” (Government 2004, p. iv). It hopes to create a seamless national economy through new legislation because, “… although all Australian jurisdictions … codify the common law duty of care based on the Robens model, each state and territory and the Commonwealth … [reflects] these duties in somewhat different ways. Also, subordinate regulations and compliance policies differ significantly between jurisdictions” (Australia SW 2009, p. ii).

The future of productive organisations is increasingly reliant on Robens style OHS. As globalisation (downsizing, franchising, privatisation) and sustainable, green jobs continue to grow, so does social justice, corporate responsibility, collective bargaining and the fragmentation of the workforce. Robens is the “… forgotten driver”(Hogarth, Gilding & Humphries 2003, p. 374) for productivity and international competition (Bennet, Cook & Pelletier 2003; Gernigon, Odero & Guido 2000; Government of Australia 2009; Hogarth, Gilding & Humphries 2003; OECD 2008; Quinlan 1995; Renner, Sweeney & Kubit 1998; Stiglitz 2002; Walters 2004). The management of OHS represents a “… microcosm … incorporating … engineering, design, maintenance, human psychology and industrial relations” (Hogarth, Gilding & Humphries 2003, p. 381). Accidents that are avoided save everyone money (Hogarth, Gilding & Humphries 2003). Although society increasingly expects risks to be managed by duty holders, they frequently are not in modern market economies (Walters 2004). Although decent, safe and healthy working conditions are being reached in many industrialised nations, developing countries lag behind. Robens style preventative OHS cultures need to become “… an integral part of wider societal culture and economic development” (Al-Tuwaijri et al. 2008, p. viii; ILO 2001, 2008).

The ongoing success of Robens’ ideas depends on the integration of OHSMS in company management, along with participation by inspectorates, workers, trade unions, industry groups and health and safety representatives (Milgate, Innes & O 'Loughlin 2002; Walters 2004). With reducing resources for inspection and control, the dissemination and implementation of OHS is becoming increasingly dependent on union involvement and communication. The proactive management of risk, rather than reacting to events once they have occurred has spread the burden of responsibilities (Taylor, Hegley & Easter 1996). Healthier, safer workplaces depend upon Robens’ philosophy of participation and consultation, between clients and their customers, contractors and suppliers, large and small employers, communities and businesses, agencies and states (Lingard & Rowlinson 2005). Perhaps Robens’ goal for “… a new, comprehensive Act” (Robens 1970-72, p. 49) will achieve this.

As the organisation of OHS developed with Robens influence, from being prescriptive to self-regulating, behaviour has also changed from passive to participatory, and attitudes from ignorance to awareness. The main differences Robens made is to increase stakeholder knowledge and involvement, create the common law duty of care, and to shift the onus of responsibility on to the duty holder. This accountability motivates everyone in the worker chain to comply with and improve health and safety. From workers to employers, OHS committees and their representatives, from designers, manufacturers and suppliers, each has the obligation for duty of care. Yet, despite these changes there are many similarities between pre and post-Robens legislation.

The new legislation is similar to that prior to Robens’ influence, remaining complex, difficult to understand and update. Although it aims for a systems based approach, much of the legislation and compliance action still focuses on physical hazards. There is a culture of enforcement, with the inspectorate preoccupied with reactive work, rather than proactive education and advice. Regulators remain under resourced, with inadequate penalties and few successful prosecutions. Furthermore, occupational illnesses, injuries and death continue.

This analysis has only covered some of the key points of the Robens model. There still remain problems, injuries, illness and disease, apathy and ignorance, but the onus rests on the duty holder. Robens’ philosophy remains one of the greatest influences on OHS to this day.

References

Al-Tuwaijri, S, Fedotov, I, Feitshans, I, Gifford, M, Gold, D, Machida, S, Nui, S & Sandi, G 2008, Introductory report:beyond death and injuries: the ILO 's role in promoting safe and healthy jobs, ILO, viewed 9 October 20089

References: Al-Tuwaijri, S, Fedotov, I, Feitshans, I, Gifford, M, Gold, D, Machida, S, Nui, S & Sandi, G 2008, Introductory report:beyond death and injuries: the ILO 's role in promoting safe and healthy jobs, ILO, viewed 9 October 20089