Delaying Decisions to Avoid SFAIRP

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss Delaying Decisions to avoid SFAIRP (So Far As Is Reasonably Practicable).

Their conversation covers:

• if lack of a decision is the result of ignorance and poor governance rather than deliberate strategy
• how the elimination option often gets tested far too late in the design process
• why briefing board members and their legal counsel on WHS legislation obligations is often what finally moves the needle
• the example the case of the Port of Auckland's Chief Executive serve as a reminder that commercial priorities don't shield senior decision makers from criminal consequences
• if you're going to delay or decline a safety decision, you must document your reasoning thoroughly, revisit it regularly as circumstances change, and understand that sitting on a decision is itself a courageous choice.

If you’d like us to cover a specific topic or have any feedback we’d love to hear from you. Email admin@r2a.com.au.

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au, where you’ll also find their booklets (store) and a sign-up for their quarterly newsletter to keep informed of their latest news and events. 

Gaye is also founder of Australian women’s safety workwear company Apto PPE https://www.aptoppe.com.au.

Transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers, Richard Robinson and Gaye Francis discuss delaying decisions to avoid SFARP.

(00:13):

We hope you enjoyed the chat. If you do, please support our work by giving us a rating and subscribing on your favourite podcast platform. And if you'd like more information on R2A, our newsletter and resources, or have any feedback or topic ideas, head to the website www.r2a.com.au.

Gaye Francis (00:33):

Hi Richard. Welcome to another podcast podcast episode.

Richard Robinson (00:37):

Good to be here, Gaye.

(00:38):

We were just commenting that you keep saying, "What are we going to talk about today?" And we pointed out that whenever we start one of these (podcasts), we never seem to run out.

Gaye Francis (00:49):

No, that's true. We always do have interesting chats. Well, I think they're interesting. Today's really a question that we're going to try and answer and discuss. We get often asked during our courses and also during the (live) forum about decision makers taking very, very long time to make a decision. And so SFAIRP then becomes, or an option becomes not reasonable because so much time has lapsed.

Richard Robinson (01:19):

Particularly, the elimination option or a preventative option becomes non-viable because you're so far into the design process that you can't go backwards. Or they've already committed initial construction and so forth. And remember we came across that chemical plant, they were doing a fast track because that was the thing to do. And they built the control room lunchroom next door to one of the key-

Gaye Francis (01:42):

Processing. ...

Richard Robinson (01:43):

Plants. And if that processing plant went wrong, it would take out the control room. And so they then had to knock it down and build it somewhere else. But that was an oil company, I think. And resources when you're in a hurry doesn't seem to be the same problem as other people.

Gaye Francis (01:57):

They probably got their money back for that one. So yeah, the concept that decisions are being delayed, so they don't demonstrate SFAIRP. And I think one of the key one is actually looking at for that elimination option. Elimination options are often tested quite late in the design phase.

Richard Robinson (02:18):

That's correct. But I think the question you are asking is, is this just accidental or is this actually a deliberate policy of some people? I mean, I generally have a theory that stupidity theories take precedence over conspiracy theories. And so for that reason, I tend to think, well, they've had this process that either they've used before or done before or they've just launched into it without thinking too hard about what it is they're trying to achieve. And we come across that a lot.

Gaye Francis (02:43):

Yes.

Richard Robinson (02:44):

Some quite big projects, often dealing with councils, perhaps. We've had some experience there where they haven't really thought through what this thing is supposed to achieve in terms of the critical success outcomes in a way that all the key players understand.

Gaye Francis (02:56):

Yeah, all the key stakeholders on the board.

Richard Robinson (02:57):

And one particular parties politically pushed it probably from their own silo's point of view. And from their silo's point of view probably makes a lot of sense. But if you don't take it from a holistic viewpoint, you can actually waste an awful lot of community resources for no great value.

Gaye Francis (03:10):

Yeah. So that's your ignorance, not deliberate, but then if you don't have that governance process in place that decisions go through and get punted up to the right level and then they're delayed.

Richard Robinson (03:29):

Well, it's also the Orwellian thing. That was the point I was sort of making, that ignorance is sort of knowledge and that if you sort of launch into something, you don't really know what's going on, you can push the system to a place that somebody who's pulling the strings would like it to be, and yet it doesn't really suit the community. But that's a really kind of Macchiavellan way to think about things or a Soviet way, perhaps.

Gaye Francis (03:52):

Yeah, maybe. And that's not what we've typically seen. I think some things for organisations just get put in the too hard basket.

Richard Robinson (04:01):

Well, some people have a focus on good intentions in their particular patch and just can't see anything else.

Gaye Francis (04:06):

But we have seen decisions being delayed for years, not just months. And we then do come along and are asked to resolve them. And I always say, I definitely need my fairy wings and my fairy wand for this particular one when they've gone along on for that amount of time. But what we have found with those sort of decisions is the safety decision often breaks through a lot of that stuff and taking the due diligence process and the governance top down process often cuts through a lot of the things that a decision can be made.

Richard Robinson (04:43):

Well, it's the safety imperative actually forces it because the criminal consequences are certainly focused on the senior decision makers, although I've got to ... And those who understand the significance of it are on the ball.

Gaye Francis (04:56):

Correct. But what we're finding is a lot of those decision makers don't understand the implications of some of the WHS legislation.

Richard Robinson (05:04):

And that's where we've found that if we brief whoever's the board or whatever they're talking about, their legal counsel and their legal counsel often they haven't thought about it that well either, which is a bit of a surprise to us because I mean, obviously we get beaten up by lawyers fairly regularly in different places, but they're saying, look, the SFAIRP is real, it's got to be done. Remember the first one we did was in Queensland with the tunnel and we were doing a SIL rating and it was the lawyer for the ventilation company insisted that we had to come back and do it the SFAIRP way rather than the old target levels of risk wave.

Gaye Francis (05:42):

Because the legislation had come into effect.

Richard Robinson (05:44):

And that was 2012 and the legislation passed 2011 commenced the first January 2012. So we got hit with this pretty hard, but we've been finding lately that, and only some board members are fully aware of this. And it isn't until the lawyer turns up to confirm that what we technical people are saying is legit, that that imperative is reasserted.

Gaye Francis (06:05):

And then they're looking at it from a liability management viewpoint. But if it gets the decision across the line, I guess that's what it is. But we are finding that that safety lens often doesn't come across in much of the work that's being done. And I think even if you go back to the example that we've used about Taupo and about the Black Star from the Pilots Federation for that incident, it was only when we started looking at all of the different users in that airspace and these were the controls that could be put in place that it actually cut through and that had been going on doing risk assessments for seven years.

Richard Robinson (06:42):

Yes. And endlessly, at great expense to all the players. And then, well, obviously the judicial process that was kicking in before you turned up.

Gaye Francis (06:49):

Yeah. And so I think by coming in with that safety lens and that due diligence lens, it sometimes stops organisations making or delaying decisions because on a purely commercial basis. And we always say to our clients: Oh, but that's expensive, but how expensive is it? And it's often very hard to get them to articulate the actual quantum of what expensive is when they're looking at a solution.

Richard Robinson (07:18):

Well, it's interesting because you might recall that the Chief Executive of the Port of...

Gaye Francis (07:24):

Auckland.

Richard Robinson (07:25):

Auckland got clobbered in the New Zealandi courts. And I've got to say, the NZ courts have been hammering the SFAIRP business particularly vigorously, and their legislation only commenced in 2015. But anybody who's in the port business in New Zealand is very much aware of the consequences of not acting when you know the issues are there, because that's what he got done for. It wasn't that any particular failure that it was a sequence, that is to say the commercial aspects...

Gaye Francis (07:55):

Were overriding or taking over some of the safety.

Richard Robinson (08:01):

It was a failure to address the safety aspect. And I mean, at the time, I assume the shareholders were particularly quite delighted with what he was doing, but the courts were particularly not delighted with the safety results.

Gaye Francis (08:15):

So I think delaying decisions in our viewpoint would be...

Richard Robinson (08:22):

Courageous.

Gaye Francis (08:23):

Richard likes the word courageous. And if you are going to delay or not do something, we always say it's much more important to document why you're not going to do it and have robust justification around that.

Richard Robinson (08:37):

Correct.

Gaye Francis (08:39):

The problem with that sort of stuff is the goalposts often change. So you've got to go and revisit these ideas. So delaying a decision for seven and eight years, you might say it's not SFAIRP at the moment for these particular reasons. And yes, it then moves on, but you have to have that argument upfront. I think you're putting yourself in a very difficult position if you're just saying, we're not going to address it and we're not going to make a decision around that.

Richard Robinson (09:06):

Well, one of the advantages in doing the way we do it with the threat barrier diagrams and things like that is you do put down all the possibilities, including things that might be emerging. You can recognise it's not current at the moment, like the ship's divers work we're doing with ... I mean, sending down an ROV, remotely operated vehicle, you have look under the ship before you send a diver down is obviously a very good idea because in a heavy sea...

Gaye Francis (09:27):

 You're not putting someone at risk.

Richard Robinson (09:30):

And going under a hull of a ship in a heavy sea is a particularly dangerous activity for a diver to do.

Gaye Francis (09:35):

I think that's sort of in two parts, isn't it? That's giving you your situational awareness and that becomes with knowledge a safety thing.

Richard Robinson (09:41):

With the ROVs you're getting these little nippers out there and they can probably untangle the propeller that previously a diver had to do.

Gaye Francis (09:47):

Possibly, possibly. So the reasonableness of some of those solutions is changing on balance potentially.

Richard Robinson (09:54):

Do you see what those drones in Ukraine are doing now and how many people they've rescued? You couldn't send somebody to save a soldier, but they can put them on a wheel drone and just drive them out.

Gaye Francis (10:06):

So I guess from an engineering viewpoint, because I think the complaints that we've had or the questions that we've had in our forum and online in the courses is that engineering decisions are made here, but they often have to be punted up to an executive level to make the decision. And that's where the decisions aren't being made. But is it enough for the engineers to say, we've made these recommendations on these basis, and then it's with the people that make the decisions, I guess.

Richard Robinson (10:36):

We're about to do that next week, if I recall correctly, with regards to the movement of large ships under a bridge that have previously fallen down.

Gaye Francis (10:43):

We are. We're going to test those arguments again to make sure that we're still SFAIRP. And I think that's that regular revisiting of the particular issues.

Richard Robinson (10:53):

And the elimination option is obviously practicable, but expensive. So the decision will be punted up again for review and the world keeps changing. What was previously expensive can sometimes have changed in cost. Other times, particularly the modern area, it's probably gone up.

Gaye Francis (11:10):

I think we just have to be careful that not all decisions can purely be based on cost either. We always say it's on the scale, so it's the reasonableness. So it's the difficulty and inconvenience of doing it, the cost and also the utility of conduct, what other things go missing because you adopt those course of action. So when we're doing it that balance, I think you got to keep it ... Often the commercial imperative drives it, but then I think you got to ... And that's the whole discussion of this particular podcast season is around the moral imperative versus that commercial reality and the context in which organisations have to do business.

Richard Robinson (11:51):

I agree that's what we say, but it was Justice Mason's decision in Wyingshire Council versus Shirt.

Gaye Francis (11:58):

Yes.

Richard Robinson (11:59):

Yeah.

Gaye Francis (12:00):

Okay. He's going to pick on me at the very end of the episode, but that's all right. <laughs>

Richard Robinson (12:06):

No, I'm just pointing out that we didn't dream that idea up. We adapted it.

Gaye Francis (12:10):

Yes. We use that as a decision making process, but often the decision is commercially focused when there's a whole lot of other things that should have been taken into account.

Richard Robinson (12:20):

But that's why having the lawyer with you who endorses that position from the high court of Australia means that you actually get an answer from a senior decision maker who previously they were just say, oh, let's go with the money.

Gaye Francis (12:31):

And that comes down to what we've talked about in other places, silos and being driven by other things. But I think from a moral imperative, the SFAIRP option or this delaying SFAIRP options, (are) very courageous and you just hope that something doesn't happen in that time.

Richard Robinson (12:53):

Yeah. And if you're a punter, you're probably right, which is the scary thing.

Gaye Francis (12:57):

It is very scary. All right. Thank you for joining me today, Richard, and we'll see you next time.

Richard Robinson (13:03):

Thanks, Gaye.