Introduction and Background
“The first wave pool was believed to have been created as far back as the late 1800s, by Ludwig II Bavaria who was a prince in the Germanic region of Bavaria from 1864 to 1886” (Surf Parks, 2021). Despite the early discovery in the mid-late 1800’s, the availability and advancements of technology has only recently made significant progress by demonstrating commercial viability and scalability to make these leisure offerings profitable. In 2020, Australia saw the launch of the first commercial operating surf park located in Melbourne, Tullamarine. Since 2020, other surf parks have launched in the United Kingdom, South Korea, Brazil, and America which has generated public interest as a new and exciting leisure offering. Despite the success and interest, there has been a rise in the growing concerns associated with WHS and public safety, particularly across unregulated leisure and amusement industries as a result of injuries and active litigation cases. In addition, concerns have arisen due to increased media attention in light of recent aquatic related incidents and fatalities across the globe. In contrast, surf parks are arguably controlled environments which could be considered as of lesser risk compared to associated risk profiles of natural oceans/surf beaches. However, surf parks also carry inherent hazards and risks based on design, technology and type of operations that need to be recognised with the adoption of appropriate controls. Given the industry of surf parks is largely unregulated with the rise of aquatic related incidents and fatalities across the sector, it is important to understand the current climate as poor WHS outcomes bear consequences not only for those who are involved in the operations of surf parks, but also users of these facilities. Considering WHS principles largely reflect legislative requirements across most Western jurisdictions, this condensed article (modified from original academic paper) seeks to understand the complexity of foreseeable risk exposures whilst examining legal obligations of due diligence. In conjunction with understanding the degree in which leadership and culture shape positive WHS practices.
Scope
The objective of this study was to understand the commonality of law across Western jurisdictions, particularly focused on Australian legislation and how it is applied in the context of leisure and amusement offerings that are unregulated. The scope of this research project was to appropriately understand the principle of due diligence in respect to WHS and public safety, given that such principal bears weight in the escalation of potential prosecution when determining a breach of reasonable care, negligence, or tort law. Thus, fulfilling legislative duties pertaining to WHS is solely the responsibility of the operator to demonstrate due diligence in the absence of regulation.
Research Methodology
The choice of research methodology cannot be limited given the appropriate level of analysis needed to formulate and present relevant findings of interest in this unexplored domain. The use of qualitative and quantitative data is favourable as scholarly sources will include the interpretation of legal case studies to better understand legal risk exposures pertaining to unregulated amusement and recreation industries. Thus, the research methodology will be limited to three key themes consisting of WHS law, leadership, and cultural factors. Findings across scholarly sources guide trends, patterns, potential correlations to support meaningful recommendations that can ultimately enhance WHS across surf park settings.
Research Structure
Introductory research of this kind is aimed at identifying, understanding, and interpreting the concept of due diligence specific to WHS law. Research efforts seek to understand how both operators and an organisation can improve WHS outcomes through the adoption of resilient controls, human and cultural influences within the context of complex adaptive systems (CAS) specific to the industry.
Legal Framework and Precedence
Principles of WHS are generally embodied within four types of law across Western jurisdictions which have significant bearing. Legislation is mostly developed at a national scale with states and territories adopting their own legislation. One of the four types of law is legislation (statutory law):
Legislation is a specifically enunciated rule that is either (1) directly enacted by a parliament (as an Act of Parliament) or (2) formulated in accordance with the principles for delegated legislation approved by parliament and, typically, approved by the constitutional head of state for the jurisdiction concerned (the governor or the governor-general, on the advice of a minister of state) (AIHS BoK, 2019).
In Australia, civil and criminal law are interrelated across the judicial system specific to WHS contraventions. Civil law considers the rights and interests of an individual, providing a framework for resolving disputes, protecting individual rights, and ensuring legal remedies for alleged violations (Waldon, 2006). In the context of WHS, matters can range from disputes arising from workers compensation, insurance and other such claims as a result of an incident. In relation to criminal law, research from Johnstone (2013) explores societal progression of criminalising key concepts of WHS specific to negligence, workplace manslaughter and breaches of care across western jurisdictions which continue to set legal precedence today.
In the event a WHS contravention, criminal or civil matter is presented to the courts. The practice of common law is adopted as a framework for judges to determine the degree of harm, sentencing and or form of settlement in regard to disputes, guided by the principles of fairness and justice (Johnstone et al., 2012). In consideration of the aforementioned, WHS matters presented to the courts are often complex in nature and require the examination of statutory framework involving the principles of duty of care, standard of care, tort law, evidence, due diligence and legal precedents (case law) to uphold the consistency in resolving WHS related matters. Furthermore, ensuring the law is ethically applied with the rights of individuals protected within the judicial system (Mclachlin, 1994). The breadth of due diligence is imposed across all four types of law retrospective of the context of WHS, including accidents and injuries where a duty of care is owed.
Defining Unregulated Industries
Unregulated industries in the context of this article narrows the meaning to minimal government-imposed regulations or oversight specific to business operations, further inferring such sectors can operate with nominal legislative restraint offering flexibility and autonomy. Crandall and Hausman (2003) delineate the constituents of unregulated industries, encompassing fundamental attributes such as limited government intervention, minimal consumer protection, minimal quality control, accountability that possess a degree of risk and uncertainty. Thus, in the context of surf park environments (including other leisure and amusement offerings that are unregulated), the lack or absence of effective WHS controls can inadvertently present systemic risks across operational functions.
Unintended Risks of Standard Adoption in Unregulated Industries
In the context of emerging leisure and amusement offerings, particularly unregulated sectors like surf parks, a cautious approach toward the adoption of standards is imperative. Surf parks, being part of a rapidly evolving industry, encompass various wave technologies, diverse operating models, and unique designs. This diversity necessitates a comprehensive analysis before considering broad standardisation. Failing to account for the breadth of complexity within these factors may likely lead to unintended and adverse risks. Given the prematurity of the surf park industry and the significant variability across designs, technologies, and operational methods, it becomes evident that further research is essential. Each surf park presents its own set of distinctive elements, requiring a nuanced understanding. Thus, a careful exploration of these variable elements is crucial before any inclination toward conforming to potential standards is paramount.
Principles of Workplace Health and Safety
In Australia, a ‘duty of care’ is imbedded within WHS legislation and denotes that both employers and employees must ensure the health and safety of others who are objectively under their care, this also extend to themselves and public. Legislation defines specific duties of officers and persons conducting business or undertakings outlining specific health and safety responsibilities. These duties broadly consist of providing a safe working environment(s) without risks to health and safety of others, consisting of taking reasonable steps to minimise risk, prevent harm, monitoring the conditions of work, provision of training, supervision, and welfare. Furthermore, in relation to this duty, SafeWork Australia (2013) depict ‘reasonably practicable’ to mean that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The relevance of the principles of ‘duty of care’ and ‘reasonably practicable’, bear significant importance in relation to possible legal exposures as a result of either civil or criminal contraventions specific to WHS.
Legal Issues and Risk
Insights into the legal framework and principles of WHS provide an understanding into the potential manifestation of complex legal issues of substantial impact arising from the consequence of a major incident resulting in a significant injury or fatality. Dependant on the situation and causation of an incident, the degree in which WHS laws are breached presents both a significant organisational and personal risk for those who hold management or control of a workplace such as; directors, chief executive officers, chief financial officers, executive managers etc. In the context of understanding organisational risks, separate to the financial burden of costs associated to litigation and legal services, significant financial penalties can be imposed which may not be covered/absorbed by insurance in some jurisdictions (Terracall, 2021). Thus, placing significant strain upon an organisation and reputational damage from undesirable media exposure. Specific to personal risks, consequences can include financial penalties, the seizure of assets and imprisonment.
By logical extension, it can be argued that unregulated leisure and amusement, industries such as surf parks that are inherently hazardous, warrant the value in adopting strong risk and safety strategies that strategically address the principles of ‘reasonably practicable’. Not only to enhance health and safety, but to protect both the organisation and people against exposures to common WHS litigation or negligence. In particular, the emergence of key themes pertaining to CAS signify the importance of robust systems, factors, leadership and culture.
Elucidation and Prosecution Risks
A significant risk to unregulated industries is the sequence of events in the lead up to either a coronial inquest or WHS prosecution, and how the organisation or individuals appropriately shape the discourse. This encompasses deliberate actions and behaviours aimed at exerting a conscientious influence, thereby demonstrating a commitment to due diligence to the extent reasonably practicable to prove innocence or reduce severity of penalty.
Arguably, in the event a civil or criminal matter is presented before the courts, the organisations ability to maintain control is diminished as the verdict and outcome solely rests upon the judicial process. In order to understand why this presents as a significant risk for an organisation(s), it is useful to examine the findings of Johnstone (2013), having analysed the way in which courts construct WHS issues during prosecutions against alleged offenders. Johnstone (2013) demonstrates how inspectors, defence counsel and prosecutors influence and represent WHS issues during the prosecution process, including pre-trial and in court. Furthermore, his findings highlight common methods applied to investigate WHS offences which consist of analysing the initial event as opposed to broader contexts of the event, design, system of work, quality of safety management systems and due diligence.
Earlier research undertaken by Bluff and Johnstone (2005) explored the relationship between two concepts that are central to Australian WHS legislation, the notion of ‘reasonably practicable’ and the principles of risk management in relation to the judicial process. The detail of this article provides the legal interpretation detailing:
Whether the risk was significant enough for a reasonable person in the defendant’s position to consider taking precautions against it — the test that the courts have laid down is whether a reasonable person in the defendant’s position would have foreseen, in all the circumstances of the case, that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. (Bluff and Johnstone, 2005)
Furthermore, the position of the courts is that the plaintiff is not required to bear the burden of proof where injury or loss was reasonably foreseeable. In contrast, highlighting the fact if it was reasonably foreseeable that the defendant’s carelessness contributed to the plaintiff’s injury or loss, carries greater weight in regard to imposing a verdict. This inherent practice and trend across Australian law, demonstrates the legal precedent that may likely be applied to owners and operators of unregulated leisure and amusement offerings, including that of surf parks. Thus, stressing the importance of adopting strong management systems to fulfil due diligence specific to operations.
Complex Adaptive Systems
The terminology of “complex adaptive systems (CAS) refers to the interconnected and dynamic nature of the work environment, where multiple factors interact and influence each other, leading to emergent behaviours and outcomes” (Carayon et al., 2006). In the context of WHS, CAS considers overarching factors that impede, influence or confirm a phenomenon which in simplified terms can consist of methods of commercial operations, social dynamics within the workplace, behavioural tenancies and governance (Movsisyan et al., 2020). When seeking to understand the degree in which leadership and cultural influences impact health and safety outcomes, the adoption of CAS can support detailed analysis of various workplace factors in efforts to foster an enhanced safety culture.
Leadership and Cultural Influence
In today’s settings, it is not uncommon to come across organisations that promote the value of safety within their organisational values. However, the degree in which an organisation(s) invests, successfully reduces risks and adopts a positive safety culture can be analysed, measured and validated based on their safety performance. Organisational values and strategic directions are generally led by executive or senior leadership across an organisation. Thus, individuals who hold high-level leadership roles have the power to influence the improvement of WHS outcomes within an organisation (Nielsen et al., 2010). “While the importance of leadership may seem obvious, a leaders influence in achieving positive safety outcomes has not always been completely clear” (Krause & Weekley, 2005). Modern research efforts have sought to explore and measure the effectiveness of various leadership styles, patterns and behaviours that promote positive safety outcomes across business and psychological settings. Studies of this nature apply theories that consider the relationship between the roles of leadership, cultural influences, and conclusive consequence of safety. Recent research was undertaken by Cristina et al. (2019) involved assessing leadership behaviours of senior executives and the relationship to organisational performance specific to WHS outcomes. Findings revealed strong correlations between positive safety leadership behaviours and the significant reduction of workplace incidents. Thus, advocating the important role leadership plays in enhancing safety and risk management efforts within an organisation.
Cultural Factors Affecting Safety
Understanding prevailing factors affecting safety outcomes from a range of scholarly sources can cause confusion and fail to provide strategic guidance when seeking to enhance WHS outcomes. However, Lee et al. (2021) recognised this issue and conducted a systematic review and metric analysis of cultural factors affecting safety. Research findings revealed several factors of interest consisting of organisational dynamics (management commitment, management support, communication, safety management systems, physical work environment, and organisational environment), two cultural (interpersonal support and organisational culture), and three individual (perception, motivation, attitude, and behaviour) factors. The findings of the review offer significant value by illustrating the interplay between the mentioned factors and legal principles of ‘reasonably practicable’. Thus, providing a blueprint on how an organisation could make a meaningful contribution to enhance WHS outcomes.
While not stating it overtly, both scholarly sources and case law warn of the dangers of leaders remining detached from WHS functions and their minimal participation across risk management processes in the context of coronial inquests and case law. Callender (2023) shares his leadership observations having worked in high-risk environments, stating that it is not uncommon for a single person or small subcommittee to take ownership and management of key risk management practices such as a risk register. An effect of this practice is that any risk process done in isolation can often fall short in managing hazards, let alone effectively shine a light on methods to reduce risk and highlight opportunities that can enable business to thrive.
Recommendations for Reducing Risk Exposures and Improving Cultural Factors
In recognising legal complexities, case law interpretations of ‘reasonably practicable’ and understanding the volatile nature of judicial processes, it can certainly be difficult for an organisation to successfully navigate compliance requirements, particularly in unregulated industries such as surf parks. Considering the breath of the issue and depth of analysis required, a multifaceted approach consisting of regulation, self-assessment of one’s safety culture and adherence to due diligence reflecting WHS law, can be considered as the first step in reducing legal risks and enhance WHS in unregulated industries. One method to combat risk exposures is to analyse how other countries seek to strengthen and prevent organisational failings specific to WHS law. For example, outside of Australasia, other Western jurisdictions such as Europe imbed specific requirements to promote the use of specialist WHS services by businesses and undertakings into WHS legislation and industries that are high-risk (Johnstone, 2017). In 1995, Queensland became the only state to incorporate similar legislation strengthening the Workplace Health & Safety Act 1995 by defining specific duties for WHS officers, however the degree of details failed to be adopted into the national model. Thus, the provisions were removed, superseded and replaced in the form of health and safety representatives. The legal principle to promote the use of specialist WHS services would axiomatically provide appropriate guidance, especially in the context of unregulated industries where significant risk exposures knowingly and unknowingly exist. Thus, there may be validity in advocating for potential reforms that identify high risk working environments to engage experienced and competent specialists in either the adoption of WHS roles or consultative services to proactively meet fundamental aspects of WHS law.
Separate to the reliance of government imposing additional legislation, organisations have the ability to take initiative by beginning to formalise systems of work and processes for both managers and employees to understand the value and return of effective WHS practices. This can be attained by undertaking training for leaders to understand their legal duties, identify meaningful strategies to reduce risk and promote safety practices to those under their leadership. Thus, fostering a greater culture of safety within an organisation (Bowers & Bishop, 2017). However, the reliance of training alone does not suddenly improve an organisations safety culture. It should be acknowledged that an organisational safety culture cannot be measured by a single metric, but rather comprises of an evolving spectrum of qualitative and quantitative factors that overtime decline and improve. An example of these factors and organisational behaviours can be further understood by Patrick Hudsons’ ‘Safety Culture’ model that presents five (5) distinct levels of maturity in relation to WHS.
Example of safety culture model.
The safety culture maturity ladder described by Patrick Hudson (1999), can range from pathological (uninformed and passive) through reactive, calculative (command and control) and proactive to generative (universal involvement, with safety integrated in day-to-day activities). The value offered to organisations such as surf parks, is that frameworks of this kind provide the opportunity to potentially assess their current safety culture and take steps to achieve a greater level of maturity underpinned by an evidence-based approach (Commcare, 2010).
Since the development of Hudson’s safety culture maturity ladder, other models have been developed to assist organisations in taking the next step to practically identify cultural tendencies and behaviours showing how an improvement of safety culture can be achieved in efforts to lower incident rates and risk exposures (Jabulani et al., 2020).
Example of a maturity model.
Another achievable step for organisations to reduce legal risks and exposures is to develop operational systems that demonstrate adherence to due diligence. By understanding the principles of due diligence, organisations can arguably determine what steps need to be taken to manage legal risks and promote proactive principles specific to compliance in order to support the fulfillment of legislative compliance (Salguero-Caparrós et al., 2020).
Example of due diligence framework.
The figure above provides a simplistic illustration of six elements that together form strong due diligence practices which can be imbedded into day-to-day operations and safety management systems. These elements consist of knowledge, understanding risk, allocation of resources, monitoring performance, compliance, and verification. SafeWork Australia stresses the importance for organisations to understand WHS risk factors and principles of due diligence specific to the conduct of their business or undertaking in order to maintain safe work environments (SafeWork Australia, 2015). Therefore, simple frameworks such as above can guide organisations to adopt their own methodology in enhancing WHS outcomes.
Conclusion
In principle, this article seeks to provide a greater insight into the complex nature of unregulated leisure and amusement offerings such as surf parks. It is important to recognise that risk is simply determined by comparing the threat of a hazard against the likelihood of it being realised, then considering the consequence of the threat of hazard occurring. In the absence of regulation and standards, unregulated industries are presented with both moral responsibilities to prevent injury or harm and legal duties to demonstrate the adherence to common WHS law such as due diligence. Falling short of fulfilling moral or legal duties can expose operational failings and adversely impact an organisations reputation if escalated to litigation or prosecution. Thus, this extract seeks to provide an even breadth to the representation and balanced perspective on issues that affect owners and operators of surf parks, including other unregulated leisure and amusement offerings. Further highlighting the need and ability to recognise legal complexities, take reasonable action to safeguard against known risk exposures, seek industry experts, competent specialists to strengthen existing systems and evaluate current cultural dynamics to promote positive WHS outcomes. In the context of this extract, research provides practicable methods to enhance WHS so unregulated industries such as surf parks can deploy evidence-based practices to protect not only their organisation, but most importantly, employees and the public as far as reasonably practicable.
© 2023 Ashley Presser. All rights reserved.
Extract: "Enhancing Workplace Health and Safety in Unregulated Industries: A Comprehensive Legal and Organisational Analysis of Surf Parks."
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