Code of Practice & WHS/OHS Confusion

In this episode of Risk! Engineers Talk Governance, Richard Robinson and Gaye Francis discuss Code of Practice and WHS/OHS confusion in relation to a presentation they delivered to the Dam Owners and Operators' Forum in Queensland recently, called "How do we do ALARP? Meeting a duty of care." 

They explain how the Code of Practice doesn’t align with WHS/OHS legislation and if you conduct an “augmented ALARP” as suggested by the ANCOLD (Australian National Committee on Large Dams) Guideline it does not promote innovation or an efficient due diligence process. and that this exists in a number of industry guidelines.

They also discuss the Oroville & Edenville Dam breaks (USA), how risk is multidimensional, how many industry guidelines have the same issues, and considering reciprocity as part of diligent decision making.

Discover more about Richard and Gaye’s work at https://www.r2a.com.au.

Transcript

Megan (Producer) (00:00):

Welcome to Episode 6 (Season 3) of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis chat about Code of Practice and WHS confusion.

(00:15):

If you have any feedback or topic ideas, please do get in touch via email admin@r2.com.au. And don't forget to subscribe on your favourite podcast platform and to give us a rating.

Gaye Francis (00:30):

Hi Richard. Welcome to another podcast session.

Richard Robinson (00:33):

Hi Gaye. Good to be back.

Gaye Francis (00:35):

Today we're going to talk about the Code of Practice and WHS/OHS confusion and it's sort of in relation to a presentation that we delivered last week to the Dam Owners and Operators' Forum for the Queensland regulator. There were four presenters, and our topic was "How do we do ALARP? Meeting a duty of care."

Richard Robinson (00:58):

And that was with particular regard to the ANCOLD (Australian National Committee on Large Dams) guidelines. And the regulator we're speaking of was the Dam Safety Regulator in Queensland.

Gaye Francis (01:04):

Correct. Thank you. Thank you for that clarification.

(01:08):

So do you want to just run through quickly the difference between the Code of Practice and the WHS/OHS requirements?

Richard Robinson (01:14):

Yeah, because one of the things we realised about the ANCOLD guidelines, they're trying to do two things and we actually suspect those two things at one level are being mandated by the way in which our system set things up. Although we would disagree with the sequence in which you do them.

(01:28):

Now, the first is the WHS legislation. It basically says identify the credible critical issues, identify all the possible practicable controls, in the circumstances work out what's reasonable, and then do that.

(01:41):

The Code of Practice, which has gone through a parliamentary process and is therefore mandated at another level and purports to represent an implementation of the WHS legislation says: Identify the issue. If for known issues, you can just put in recognised good practice. But if you don't know, then you've got to assess the risk before you start looking at the controls, which is the inverse of what the legislation actually calls up.

(02:07):

Now our interpretation of the ANCOLD guidelines is it's basically saying, look, we want you to do in effect what we would call the old way of doing risk assessment, likelihood and consequence, and potentially comparing out the criteria. And then you go do the second process, you say, right, it doesn't matter what the criteria say, is there anything else we can do? So we would tend to refer to that. I think we were talking about it later as augmented ALARP or something like that. And obviously it does both processes. And I think the point we make is that we would've said that's not particularly efficient. We would've said, you want to do what the WHS/OHS legislation asks first, and then if you want to do the second one, particularly if you're trying to work out what's prohibitively dangerous and whether or not, the way you put it, you can 'hop at any time'.

Gaye Francis (02:54):

I think it also, we talked about it before and it's that safety in design review and just putting in recognisable practice or standards that you're not looking for anything new or novel that you can do. And we've used, the one that we use for the dam break is that the current controls to make sure that the dam integrity stays intact and all of that sort of thing is to do regular inspections of the dam to make sure that there's been no movement that can be seen and things like that. And we're saying, well, maybe there's some technology out there that you could monitor the side of a dam and if there's any movement in it, then that could send alarms.

Richard Robinson (03:37):

That was that LIDAR based ground probe system.

Gaye Francis (03:39):

Correct.

Richard Robinson (03:41):

And obviously it'd only work for a hard face dam rather than with grass waving all over it. That wouldn't work. But that technology would work, and we've used it for railway cuttings, it would work really well.

Gaye Francis (03:51):

But that technology and solution doesn't exist in any of the guidelines or good practice that we know of to date.

Richard Robinson (03:58):

And I haven't had a dam person mention it to me. We've been doing it the other way around. Yeah, I would agree.

Gaye Francis (04:05):

So I think by following the Code of Practice and the ANCOLD guidelines, it's sort of doing "same old, same old" and not looking for that innovation.

Richard Robinson (04:16):

And the problem you've got is if you start with the target level of the risk approach and it turns out to be really low...

Gaye Francis (04:23):

What else are you going to do?

Richard Robinson (04:24):

It's hard to get yourself motivated looking for anything else that you could do. It sort of puts you in a culturally... you sort of don't want to do anything else because it doesn't seem much point.

Gaye Francis (04:35):

Well, you're almost in your comfort zone, aren't you?

Richard Robinson (04:38):

In effect. That's right. And you might remember in the presentation, I mean the Oroville Dam spillway break (in California), and I forget which the other dam was, but in each case, the American reviewer saying they were going to go and test what the design philosophy and cultural attitudes of the design team were when the dam was built. Because obviously, I mean we've been through this a number of times before, but in engineering term, the meaning's in the method. The design process will have certain consequences and if you've got a certain design process, you will get certain consequences. And if you look at this thing from different points of view, you do get different insight.

Gaye Francis (05:16):

And I mean, we've touched on this many, many times in our podcast that risk is multidimensional. And if you cut it different ways, if you look at it from a cultural viewpoint, you get a different insight into (as opposed to) if you look at it from a purely technical viewpoint. That dam that you were referring to was the Edenwille Dam (Michigan) break.

Richard Robinson (05:35):

Yeah, that's the other one.

(05:37):

Now, that was the other question which pops up a couple of times because in the safety case guideline, which was one of the reasons that the Dam Safety and Regulator in Queensland was attracted to us giving a presentation because he'd found that to be particularly helpful. But those cultural attitudes, the way you get ideas done. I mean, one of the observation we've had, it's not a bad idea to sort of get the community, who are at risk and brief them and get their feedback on what it all means.

(06:03):

Now, as you pointed out, that doesn't normally happen with dams. And you'd probably expect that it'd be the council who in one way represents the rate payers and residents downstream of a dam in a particular region who would probably have the greatest interest in this. Because there's nothing like having to explain as a dam owner or operator to a group of residents whom if the dam goes wrong, have a good chance of getting killed to actually have to explain what you're doing and why you're doing it. It does tighten up the argument, make it a lot more robust because the argument, the point went back, it's the principle of reciprocity. What you've really got to do is explain to them that as the dam owner an operator, if I was living downstream of the dam, this is what I have to ensure it would be reasonable. So it's that principle of reciprocity again.

Gaye Francis (06:53):

And it provides that transparency that people are looking for. And I think that's what appealed to the Dam Safety Regulator, that sometimes that safety case guideline could be used to establish some of those arguments in a transparent way that could be communicated to those stakeholders.

Richard Robinson (07:11):

Well, I think the thing that interests me the most is the last presenter was the General Counsel for one of the large water authorities in Queensland. And she just basically more or less went through the process the way R2A basically says to do it: Identify the issues, look at all the possible practical controls, determine in the circumstances which are reasonable and do that. Didn't have any problem following the ANCOLD guidelines as well, which was really from our point of view, a double up. And as we mentioned earlier, from the point of view of establishing whether something's prohibitively dangerous after you've put all your controls in place, it's probably not a bad thing to do anyway. So we're certainly not saying that the ANCOLD guidelines are massively in error or anything like that, but I think the difficulty we have is they're still doing it in the reverse order. But you can see from the way in which the legislation has been written and the code of practice has been written, why this confusion exists, it must exist at very high levels in just about every government agency.

Gaye Francis (08:04):

It's in a number of guidelines, isn't it that understanding of what they need to do. I think it's also creating a little bit of double-up work, and the process that it takes, and we've talked about this in a number of other podcasts, compliance with these guidelines and things like that where we are sort of saying, yeah, have a look at them and check them out. But following them as step-by-step guides usually doesn't meet the obligations of the legislation.

Richard Robinson (08:35):

And it certainly doesn't create innovation and create testing for other new ideas that could be potentially valuable. When you follow a standard, you just design to the standard. And that's that.

Gaye Francis (08:48):

And I think that's one of our topics for a podcast to follow. So I think unless you've got any closing comments, Richard, we might wrap this one up for today. So we hope you enjoyed that. It was an interesting presentation. We always enjoy giving these industry based presentations and that insight. So thanks for joining us today and hope you can join us next time.

Richard Robinson (09:10):

Thank you.