1. LEGISLATION, COMPLIANCE AND
THE LAW OF UNINTENDED
CONSEQUENCES
THE SEARCH FOR A BETTER WAY

2. Legislation, regulations and other rules are intended
to drive compliance for our benefit.

3. However, sometimes these compliance efforts create
unintended outcomes.

4. 17 March, 1977 - Los Rodeos Airport Tenerife
Canary Islands

6. The legislated dramatic increase in passenger security procedures
and associated waiting time at US airports led 6 percent of
passengers to drive instead of fly, particularly on shorter routes.
Result?
An increase in road fatalities directly attributable to the change in
behavior.
Post 9/11 traveller behaviour
The Unintended Consequences of Safety Regulation Sherzod Abdukadirov – Mercatus Centre George Mason University

7. Solving a problem that didn’t exist

8. Solving a problem that didn’t exist

9. If national governments with all their resources can create
rules that have unintended consequences, how much
easier is it for businesses to do the same?

10. Legislation and other higher order rules can be
intimidating, create fear and invite overreaction…

11. While the model WHSA in Australia has generally
been well received, various industry groups have
made submissions requesting changes or clarifications

12. Groups like the AIHS have a key role in contributing to
reviews of the WHSA, to ensure that the legislation,
regulations and Codes of Practice do not result in
unintended consequences.

13. Hard line, complex or inflexible approaches to human
activities, though well intentioned, may have unintended
consequences
Work is a human endeavour and subject to variability,
including error by workers.

14. HUMANS MAKE MISTAKES

15. Sometimes small or silly…

16. Sometimes big and disastrous

17. Is it possible to eliminate human error?

18. NO…
Making errors is about as normal as breathing oxygen.
Professor James Reason

19. But it’s how we deal with error that counts

20. Most unsafe acts in the workplace are unintentional (slips,
lapses or mistakes)

21. ETTO WILL GET YOU…
Workplace leadership culture, time pressures, system hazards all
lead to ETTO
The person involved in an incident is simply at the end of this chain…
Eric Hollnagel 2008
(Efficiency vs Thoroughness Trade Off) *

22. ‘Zero tolerance’ for ‘unsafe acts’ can actually make the
workplace less safe.

23. Where there are harsh consequences for mistakes that lead
to safety events, people will not self report errors or near
misses.

24. When an incident or accident occurs, our first response is
often to add more procedures…

25. A seven minute procedure that you have to complete in two minutes - doesn’t help….

26. Even intentional, ‘unsafe acts’ can be the result of conflicting
goals or environmental pressures.
They are often well intentioned

27. We need to understand all of the aspects of ‘unsafe acts’ or
incidents in order to build resilient systems, and this requires
a particular ingredient:
Trust

28. THE TRADITIONAL APPROACH - PERSON CENTRED
(Blame culture)
The ‘guilty’ person is isolated,
scrutinised, ‘convicted’ and
disciplined or removed from
the system.

29. THREE QUESTIONS WE ASK WHEN THINGS GO WRONG:
What happened
How did it happen
and
Who is to blame

30. THE SEDUCTION OF BLAME
Blame is simple.
Blame can be understood
Blame shows we are ‘serious’ about doing something
Blame makes us feel better (and safer)
Blame moves quickly off the front page…

31. BLAME DRIVES A FEAR-BASED CULTURE
• Fear based cultures don’t challenge current incorrect assumptions
or beliefs
• Fear based cultures are not proactive or predictive
• Fear based cultures favour visible activity over effectiveness
• Fear based cultures don’t innovate
• Fear bases cultures are rigid not resilient

33. BLAME IS A RESPONSE THAT SAYS –
“This was aberrant behaviour. There is nothing to learn here…”

34. BLAME-WHAT IS IT GOOD FOR?
• Blame shuts down communication and prevents trust from forming
• People will not self report or expose system weaknesses
• Blame create and ‘us and them’ mentality
• The only thing that changes is the identity of the person at next
event.

35. EVEN FE AR OF BL AME CAN HAVE
CONSEQUENCES

37. THE REALITY
A blame culture results in low trust and disengagement which results in :
• 18% lower productivity
• 16% lower profitability
• 37% lower job growth
• 65% lower share price over time
• 37% higher absenteeism =$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
• 60% more errors and defects
• 49% more accidents
https://hbr.org/2015/12/proof-that-positive-work-cultures-are-more-productive - Queens School of Business/Gallup

38. When there is no trust or involvement…
In a study of Dutch railways, it was found that 80% of the
workforce considered that the rules were mainly concerned
with pinning blame, and 95% thought that the work could
not be finished on time if all the rules were followed.
None of the 50 respondents could remember ever having
referred to the rules in a practical situation.
IMPROVING COMPLIANCE WITH SAFETY PROCEDURES REDUCING INDUSTRIAL VIOLATIONS - UK HSE Human Factors group

39. The Management Role
IMPROVING COMPLIANCE WITH SAFETY PROCEDURES REDUCING INDUSTRIAL VIOLATIONS - UK HSE Human Factors group
Violations are highly susceptible to management influence as most
underlying causes of violations are either created by management,
accepted by management or condoned as normal working practice
by management neglect.

40. CONTEXT IS EVERYTHING
Errors happen in a complex ecosystem that can be years in the
making
Errors are always viewed with hindsight bias…
How can we get leading indicators of risk?

41. THERE IS A BETTER WAY – JUST CULTURE
What is a Just Culture?
How does it respond to
negative events?
Is discipline ever warranted?
How do we create an
environment of trust, learning
and improvement?

42. WHAT IS A JUST CULTURE?
“Just Culture" is a culture in which front-line operators and others are not
punished for actions, omissions or decisions taken by them which are
commensurate with their experience and training,
but
where gross negligence, willful violations and destructive acts are not tolerated.
European Commission in the Regulation (EU) No 691/2010

43. ICAO Annex 13 Ch 3
OBJECTIVE OF THE INVESTIGATION
• 3.1 The sole objective of the investigation of an accident or incident shall be
the prevention of accidents and incidents.
• It is not the purpose of this activity to apportion blame or liability.

44. Just Culture is about engagement
Organisations need to review whether they have a compliance focus
or an outcome focus

45. An outcome focus is inclusive and will achieve or
exceed compliance requirements as a benefit of the
process.

46. An outcome focus means:
Processes and practices are regularly reviewed
Work as imagined = work as done (Process drift)
Workers are involved in process design & review

47. But how do we assess errors vs violations?

50. When learning and prevention not blame is the focus…
• Workerrs will offer information crucial to preventing future errors.
• To be willing to do this, they must trust their leaders
• The leaders must act with courage and determination to protect just culture
• Discipline is only used in extreme circumstances (intentional harm)

51. A JUST CULTURE is a proactive GROWTH MINDSET
• Information self-reported by people working in a just culture informs a
continuous improvement process
• A free flow of information allows rapid process improvement and boosts
innovation
• Leaders in a just culture actively seek out and receive feedback
• An environment of trust pre-empts threats to the organisation

52. The Work Health and Safety Act 2011(Cth)
241 pages in plain language… It is the what of WHS..
Just 20 pages (ss 13-28, 35-39 & 46-49) contain the key duties of
people in an organisation, in creating a safe, low-risk workplace.
Safety prosecutions usually involve breaches of these duties.
The Act contains a strong emphasis on engagement and participative
processes.

53. S 46 & 47 – Duty to consult
You must:
Consult regarding the effectiveness of training
(work as imagined vs done)
Inform them of decisions affecting safety and resolution of concerns

54. Does a Just Culture approach make things better or worse?
Case study:
The Danish Air Traffic Control Authority carefully introduced a non-punitive,
Just Culture reporting system.
• Reporting of safety incidents from went 15 to 940 in one year.
• Serious incident reports went from 15 to 50

55. CAN JUST CULTURE IMPROVE OUR ORGANISATION?
Case study:
• Continental Airlines Newark International Safety Audit
• Maintaining trust? Management + employee review boards

56. JUST CULTURE ABOVE THE LINE – PROTECTIVE
(Open/Communicative/Predictive/Preventative/Resilient)
JUST CULTURE BELOW THE LINE – EVENT RELATED
Investigative/Informative/Restorative/Inclusive
Event line
An error may still occur but it is far more likely to be trapped by a responsive
organisation before it causes harm. If you are going to fail – fail safely.
ATL-BTL JC - Bentley 2019

57. LEADERSHIP BEHAVIOUR IS CRITICAL
What can we each do?

58. A fair and
just culture
A trust culture=

59. TRUST CULTURE
LESSONS FROM THE PAST AND THE PRESENT…
TO CREATE A BETTER FUTURE
DAVID BENTLEY
JUST LEADERSHIP
david@justlead.com.au 0400 823 370
www.justlead.com.au