Role of Standards & Do They Meet Your Legislative Requirements?

In this episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss the role of Standards, why it's important to understand the different types of Standards, the information they contain, and why some Standards may not satisfy your legal obligations under the OHS/WHS legislation. 

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For more information on Richard & Gaye's work, head to www.r2a.com.au and www.aptoppe.com.au.

Transcript

Megan (Producer) (00:02):

Welcome to this episode of Risk! Engineers Talk Governance. My name's Megan. I work behind the scenes as producer. In this episode, due diligence engineers Richard Robinson and Gaye Francis talk about the role of standards, particularly within the role of risk management and governance. We hope you enjoy the episode. If you do, please subscribe on your favourite podcast platform and give us a rating.

Gaye Francis (00:32):

Hi Richard. Welcome back to another podcast session.

Richard Robinson (00:36):

Okay, it's good to be here again.

Gaye Francis (00:37):

It's good to be here again. Today we're gonna talk about the roles of standards and some of the confusion that standards is creating and the different types of standards. We do outline this in our booklet "Criminal Manslaughter, How Not To Do It". So Richard's just gonna run through a quick summary of the different types of standards or have you got a bit of an introduction first, Richard? [I have a bit of an introduction first.] Go for your introduction.

Richard Robinson (01:01):

It's one of these important things. You see once upon a time, Australian Standards particularly was called by regulation and legislation. Now, one of the consequences of the OHS Act in Victoria and the harmonised WHS legislation around Australia is, we've been told this a couple of times by different lawyers, the parliamentary council's advice is that it's inappropriate to delegate the power of Parliament to unelected standards committees because if the committee changes their mind about something, then everybody's gotta follow because effectively it's got the power of Parliament behind it. Now, that was hammered into us when -- remember we did the dangerous goods review for defense and we were going around all the defense installations? We had a member of the Dangerous Goods Committee with us. And that fellow said, well, I'm on the committee. And so if we change our mind, it happens. And we sort of looked at him strangely and thought that can't be right. And that's why we found out about this question, the WHS legislation changing all this.

(01:51):

Now this is how the consequence of bumping down the role of standards. Because standards, if they're called up by regulation or by the Act, obviously have the same level of understanding. But after that, they got pushed all the way down. And I don't think it's something Standards Australia really has quite figured out yet. Now, the reason why it's also important is that people keep saying, well, I, if I've done something to the Standard, I must be good.

Gaye Francis (02:14):

I've complied with the Standard.

Richard Robinson (02:16):

I've complied, I must be good with the legislation. And the problem is that's not what the legislation intends. Now the legislation says you've gotta achieve the highest level...

Gaye Francis (02:25):

of precaution as is reasonably practical.

Richard Robinson (02:27):

That's right. Now it is true that the Act only defines reasonable practicability as one lawyers pointed out to us. But if that's the case, why does the intention of the Act say the highest level? Now it may be true that from a beyond reasonable doubt basis, the test of reasonable practicability would only be applied. But from a common law viewpoint, I would've thought the highest level that's reasonably practical would be the one that you'll be tested against.

(02:52):

Anyway, that sort of introduction then brings us to the question, what is a Standard? And the problem that we've noticed is that Standards, the fact that something is standard doesn't mean it's really a Standard. And that's really the problem. Now, historically, Standards have been developed in different ways and I'm just gonna read out the five standard types that we're aware of from our little book that Gaye mentioned before.

(03:16):

The first one is Standard as Measure -- weights and measures. I mean, what's a kilogram? You know, what's a lumen? What are those? [They're measurable things.] Yeah, measurable scientific things. Although the way they've been defining them lately is all in other physical properties like mass has now been defined in terms of energy just recently, follow from Einsteinian type things, which is really quite interesting. Well, the problem they had; they had this massive kilogram after the revolution in France and they had defined kilogram. And every time they measured it, after a few years, for some reason it was slightly decreasing. Only minusculely, but it was inconvenient! Anyway, nobody argues about Standards like that. They're not... it's not a moral question. They're factual. The next one was Specification Standards. And this is the one... Standards Australia was created by the engineers and it was particularly the engineering standards organisation.

(04:04):

And it was particularly a military thing in the sense that if you're manufacturing bullets, they have to fit the barrel or it's just kind of stupid. And so Specification Standards, they're not particularly arguable either. You know, they're sort of, either you're gonna meet the standard or you're not.

(04:18):

The next Standard is Standard is Rules. And that's like AS3000 wiring rules. Now AS3000 is a pretty good Standard. It's pretty robust sort of Standard. Okay. If you're building a house, you'd normally build it to AS3000. But as we mentioned another time, it's a Standard and that means it tends to inhibit thing and new developments from occurring. For example, I think I used this example another time, if you're wiring up a house, if you've gotta achieve the highest level of precaution you can, the home handyman fiddling with the wires of the roof space, doing them in.

(04:50):

And you might remember the Royal Commission we had where people were stapling the new installation. And people got killed. And the whole Royal Commission into that. Well, these days you could buy the house with power of ethernet, which uses extra low voltage wiring, 48 volts AC in the roof. All the lights could be power of ethernet. You can get 25 volt lumineers these days for the power of ethernet. A new building, a new house should probably be wired with extra low voltage wiring and not up to AS3000, 240 volt low wiring. That's what the legislation requires you to do. I'm yet to see a house that's been built because of the WHS legislation imperatives. But anyway... [Or it has to be thought through anyway] The point is this one does have some arguability, but for the most part, AS3000 is a pretty robust standard. And if somebody's doing something to that, you wouldn't normally argue the point.

(05:40):

But that leads on to Design Standards. And boy, (Australia's) Design Standards are arguable, because there's any number of ways, if you're an engineer, you could do Design Standards. The case that I'm thinking of in particular is... Remember there was that large digger? The big spinning rotary digger that got a crack in it? <affirmative> And um they imported a German Professor of Mechanical Engineering; I think he was a doctor. And he basically, he was a member of the... the German's have two mechanical design codes. And he was a member of one committee. And he chose to apply the standard with which he was familiar. And it went wrong. And so one of the big mining companies took it to Australian courts. And that, that's where that line comes out; now, engineers should remember that in the eyes of the court, an Australian Standard is only about recommended practice. You've gotta do better than that if you can. And they took him out for that reason. They took him down for I don't know how much cost.

Gaye Francis (06:39):

And that was because the second Standard that was there knew of this deficiency of the first Standard.

Richard Robinson (06:45):

And he was of that.

Gaye Francis (06:45):

And he was aware of it. And the second Standard addressed that deficiency and he chose not to adopt that for that particular purpose.

Richard Robinson (06:54):

Yep. And so that means design things... And that's the quote I've got here (reading from Criminal Manslaughter booklet). "Engineers should remember that in the eyes of the court, in the absence of any legislative contractual requirement, an Australian Standard amounts only to an expert opinion about usual recommended practice. In the performance of any design reliance on an Australian Standard does not relieve an engineer from a duty to exercise his or her skill and expertise." And that's Paul Wentworth commenting on AS7000, which is the high voltage transmission standard.

(07:22):

That then leads you to the last category, which is the one that drives us crackers! And that is Technique or Method Standards like ISO31000 or the COSO Risk Management Standard.

Gaye Francis (07:35):

It's about a process; how to apply a process.

Richard Robinson (07:37):

A process.

Gaye Francis (07:38):

And it might or might not work for your organisation.

Richard Robinson (07:42):

Yeah. Such Standards, I mean I understand that you do need certain sorts of Standards like that, like Accounting Standards. If you don't have some kind of commonality, how can you compare and understand what's going on? But this is more a question.

Gaye Francis (07:55):

But they're almost guidance documents then, aren't they? Or methodology guidance documents of different ways.

Richard Robinson (08:00):

It's not Standard Standard. It's not like a Weights or Measures Standard. And so from my our point of view, I think we sort of came to the view that a lot of... When when somebody says: It's the Risk Management Standard, that's actually a marketing term. That's not a Standard. It's just an idea.

Gaye Francis (08:17):

And I think with the Standards, in particular the Design Standards and things like that, they're all re always retrospectively looking at it. They're what's been done in the past and it always takes Standards a long time to catch up. So it's not even almost recognised good practice. Sometimes it's recognised good practice three or four years ago when the Standard was written.

Richard Robinson (08:39):

Well the one that sort of, I mean this is historic because I haven't actually looked at it lately, but you see I was trained by Factory Mutual as I've pointed out (previously). They actually designed theSprinkler Standard for North America NFPA 11 or NFPA 13. NFPA 13 was in fact the Factory Mutual Standard. And they're a bunch of engineers and if they have an unfortunate incident, they get into their research facility in Norwood, Massachusetts, they rack it up and burn it down and find out what the sprinkler standard has to be to put it out. The Australian Standard AS 2188 on sprinklers is based on the fire offices committee of the UK, which is the insurance officers. And what they basically do is after a few buildings are burnt down, they sort of think, huh, maybe the Standards are not quite right, perhaps we should improve it. But it's not an Engineering Design Standard.

Gaye Francis (09:23):

So they haven't actually tested it the way in that Factory Mutual test it.

Richard Robinson (09:27):

Well they are doing it, and they've now got their research facilities. Australia's starting to do that. But there's been a tendency to sort of... these things kind of osmosed, they're not sort of engineered Standards in the the way the Factory Mutual certainly is.

Gaye Francis (09:39):

Mm-hmm. I think also in James Reason terms, and we talked about James Reason in a number of ways, we always think that Standard approach is the bureaucratic approach, isn't it? The base standard. You know, it's sort of that minimum thing that you must achieve. And the WHS legislation's really saying generative, what is the highest level of protection that you can achieve? Rather than just what the minimum standard is. And you know, it changes the question from: Is it bad enough that we need to do something about it creeping up to that standard level; to: Here's a really good idea, why wouldn't we do it?

Richard Robinson (10:12):

Correct.

Gaye Francis (10:14):

So, you know, Standards can be as useful or not. And, and I think everyone's got it that you have to comply with the Standard and we say to our clients sometimes when you're doing work, sometimes Standards actually aren't relevant to the piece of work that you're doing. But you have to have an argument as to why it's not relevant and you can still be diligent by not applying a Standard.

Richard Robinson (10:36):

Well, it's a long time ago now, but I was doing a, a job on an old folks' home and the reason was is because they'd installed it to what was then the Australian Smoke Detection Standard.

Gaye Francis (10:47):

So that was their fire alarm system.

Richard Robinson (10:49):

Their fire alarm system. And there was some old souls in this place who were doing various things like smoking when they shouldn't be in bits and pieces in their rooms and so forth. And the alarm kept going off and they kept evacuating the place and more people were dying from the evacuation process than

Gaye Francis (11:03):

More from heart attacks than from the alarms.

Richard Robinson (11:05):

That's right! And so we turned up and said, well, applying the Standard was not the right solution to the problem. It might be true for example in a student accommodation. But even there, I remember doing the work in the US all those years ago, you know, if you've got people waxing skis and doing wacky things that students do around the place, the fire alarm goes off regularly (and) after a while they just don't respond, they just ignore it. And that's even worse! You only ever want fire alarms to go off when there actually is an incident and then you want people to respond appropriately.

Gaye Francis (11:33):

So false alarms are worst thing that you can almost have.

Richard Robinson (11:37):

Well the 1937 Chairman of Victoria's Division of Engineers Australia got it right when he was talking about Standards, I think. He commented, I think it's one of those Kernots -- you know, the first professor of Engineering at Melbourne (uni) was a Kernot. I think, I can't remember it was a brother or son. I got a bit lost in those brothers. You (Gaye) live in a street in where your suburb, where all the engineering professors are lined up. I've gotta point out. But, he made the point that the Standards really only have two purposes in life: To prevent fools from their folly and rogues from their roguery. And the reasoning is, if somebody's made a mistake and you want to hang the poor sod, the quickest way to do it is say 'you rotten bastard, you haven't complied with the Standard, you are toast'. And that's rogues from the roguery. <affirmative>. But what you ought to be doing from an engineering design viewpoint is figuring out how you think it ought to be and then you check back against the Standard, which is the sort of cumulative history of good designs to test to see whether you overlooked something.

Gaye Francis (12:37):

That you haven't looked overlooked something. Yeah.

Richard Robinson (12:40):

That's fools from their folly. <affirmative>. And if you do that, that's the right way to do it. That's 19... when did I just say?

Gaye Francis (12:47):

1932. A long time ago.

Richard Robinson (12:50):

You know, it's almost a hundred years ago. And we're still arguing about what is the utility of a Standard and we're still misusing them.

Gaye Francis (12:55):

Just going back to your story about the older folks' home and you're realising that the Standard, or the Building Code, wasn't appropriate for that case, but you could put in place things that were in-line with the intent of the Standard.

Richard Robinson (13:10):

Correct. And that's what we did.

Gaye Francis (13:11):

To make sure, because you're looking at the function of it. You wanna evacuate people and make sure that if a fire does occur that the residents are notified and accordingly. So what you can do is you can actually put the first alarm to the nurses' station, which is what you believe I did. Someone then had time to go and have a look to make sure there was a fire and it wasn't just somebody, you know, who'd burnt their piece of toast or whatever before the full evacuation alarm went off. So you just have to think these things through and it's not just the automatic: The Standard says this, we'll do this without thinking these things through. I think standards are stop people from thinking what needs to be done. And I think you've said it at the start of this podcast, was they're really become almost inhibitors to what can be done better. You know: 'This is what the Standard says, so that's all I'm going to do'. Whereas the legislation asks you to put in place what's reasonable, practical, and the reasonableness of some of those things that are emerging now is becoming more and more reasonable than it was 10 years ago, for example. And some Standards are still 10 years old.

Richard Robinson (14:13):

Correct. I mean that's one of the reasons, I mean I think in this sense, Engineers' Australia's abrogated its role to some extent when they basically just gave all intellectual property over to Standards Australia, breaching the Code of Ethics of Engineers' Australia, by-the-by, because there is a duty to give credit where credit's due. The NFPA Standards, for example, the members of the committee are listed by name and which organisation they work for and who the alternates are, in Standards Australia, it's just organisational. You have no knowledge of who's on the committee or what they've done and who's ultimately responsible for this thing. But that transparency question just isn't there. I just find the whole thing incredibly annoying. And it inhibits engineers from doing their role and their duty under all this legislation that's popped up. It's really gonna be fascinating with the Registration of Engineers, which is popping up everywhere, just how well that's gonna roll out. Cuz I don't really think people have been thinking this through. But you know, we'll see.

Gaye Francis (15:12):

We'll watch that with interest.

(15:15):

So I guess for this podcast, what we're saying is Standards aren't necessarily wrong, but you need to be aware of the different types of Standards, the information that they contain, and be careful that they may not satisfy your legal obligations under the OHS/WHS legislation.

Richard Robinson (15:33):

Especially ISO 31000. But that's probably its own podcast, I think.

Gaye Francis (15:39):

Yes. I think we might cover that topic at a different session. So have a great day everyone. Thanks for joining us again.

Richard Robinson (15:45):

Thanks everyone.