OHS Enforcement in Australia a Stocktake

1
OHS Enforcement in Australia a Stocktake

• Liz Bluff Presentation to 4th Colloquium of
  the National Research Centre for OHS Regulation
• 9-10 February 2005

2
Overview of the Stocktake

• Analysis of enforcement structures,
  responsibilities, resources, policies practices
  of 9 Australian New Zealand OHS regulators (10
  in total)
• A number of contributors sources developing
  responding to 2001 2002 survey questionnaires
  conducting participating in 2003 interviews
  with regulators 2004 update by review of
  regulators public reports, policies, procedures
  discussion papers 
• Comparative summary tables description

3
Some Qualifications

• Diversity in regulators practice means need to
  be cautious about direct comparisons - eg
  resources for OHS inspection FTEs coverage
  legislation (OHS, DG, WCR /or labour) need to
  read in context 
• Gaps in data because not recorded take a
  different approach so data doesnt fit data
  need updating or regulators tell differently
  so have info for some but others might do too

4
Topics Covered in Report

• Type of agency scope of role functions
• Staffing numbers (OHS support roles)
• Organisation of field services
• Recruitment, training powers
• Approach to enforcement
• Support for compliance
• Types of inspection, who decides what is
  inspected basis for
• Targeted inspection programs
• Documentation of inspection
• Number of each type of inspection
• Criteria for taking particular enforcement action
  how often taken
• Criteria purpose of investigations
• Criteria for prosecution, number focus of
• Measuring effectiveness of inspection
  enforcement

5
Regulators Their Responsibilities

• 6 departments 4 statutory agencies ( separate
  standards policy (ACT) Act administration etc
  (SA)
• Enforce OHS legislation DG (7) energy (4)
  IR/labour (3) WCR (5) or WCR policy advice 2
  sporting injuries (1) radioactive ores (1)
  ozone protection (1) tobacco (1) building
  safety (1) equipment/public safety (1)
• Legislation enforced by OHS inspectors varies as
  some have separate inspectorates but most enforce
  more than OHS OHS only (WA) ? 4 or more
  (ACT, NT Tas)
• Smaller inspectorates WCR or IR role challenges
  OHS enforcement resources (ACT, NT, Tas)
• Enforcement in all industries (5) all except
  mining petroleum (3), or Cwth only ( all do
  Cwth)

6
OHS Functions of Regulators

• OHS policy, strategy, standards development
  (except ACT). In conjunction with tripartite
  Council(3), Commission(2), Board(2), Advisory
  Committee/Group(2)
• Developing providing information education -
  toll free telephone advisory services, guidance
  material (fact sheets, hazard alerts etc),
  newsletters, print copy web, information
  sessions, accrediting/approving training or
  providers (HSR other training)
• Administering notification, registration,
  licensing /or certification of work premises,
  plant, substances or occupations (as for
  legislation approach of regulator, eg
  notification vs active audit)
• Grants (3 W/C SA) to employer worker
  organisations, others (NSW SA cover research)

7
Staffing Numbers Roles

• Job roles with OHS focus field coordinators,
  specialist investigators, legal services,
  legislation/standards, OHS inspectors, OHS
  technical staff
• Other job roles administrators business
  services media/publicity staff
  supervisors/managers
• Data on number of FTEs, FTEs with inspectors
  powers, number centrally vs regionally located
  percentage of time spent on OHS-related
  activities (if less than 100)
• Tables need careful checking updating ( check
  not double counting)
• Once data checked discuss resources in context of
  demographic data, legislation enforced, spread of
  functions - not just numbers

8
Recruitment Training

• Mostly recruit inspectors as vacancies arise but
  some have group intake
• All apply EO principles but only NSW Vic
  specifically encourage women, indigenous, NESB
• Powers after - probation training (NSW, NT, Vic
  WA) probation mentoring (Tas) training
  (Cwth Qld) mentoring (ACT) or powers after
  recruitment (SA)
• Induction training well developed in some -
  training mentoring Diploma of Government
  (Workplace Inspection) (Qld, Vic, WA) or Diploma
  of Injury and Illness Prevention Management (NSW)
• Others Certificate in Government (Investigation
  Methods) (Cwth) 3 months mentoring Diploma in
  OHS encouraged (ACT) training mentoring (NT
  SA) 6 months mentoring (Tas) any training
  offered to meet competency standards

9
Organisation of Field Services

• Regional focus - regional offices across
  jurisdiction undertake OHS inspection within
  regions - Cwth NT visiting program across wide
  area Qld 6 regional offices 20 district for
  coverage but not inspector numbers for industry
  teams
• Industry/hazard focus - ACT has 3 industry/hazard
  teams at central location Tas has 9 industry
  teams (by range of legislation not OHS risk)
  staff at 3 locations WA has two industry
  branches at 3 locations subject to industry a
  central health hazards branch
• Industry regional focus - SA has 5 centrally
  located industry teams a country team with 5
  regional locations - industry specialists may
  work with country generalists on country blitzes

10
Organisation (continued)

• Industry/hazard specialist focus - Vic has 4
  industry divisions (a couple of main industries
  response work in others) industry staff in 13
  metro regional locations Hazard Management
  Division for major hazards, plant engg, occl
  hygiene, hazardous substances dangerous goods,
  manual handling ergonomics, OHS management
  specialist investigators in Legal Services
  Investigations Division
• Industry, regional, hazard specialist focus -
  NSW has 7 industry teams 2 generalist country
  teams, located in 23 offices. Specialist units -
  Workplace Fatality Investigation Unit Hazard
  Management Team (technical specialists)

11
Common Approaches to Facilitating Understanding
Compliance

• Broad, community wide, TV radio advertising to
  raise OHS awareness (print media vs direct mail)
• Information, advice assistance through toll
  free telephone or email advisory services, via
  the internet, publications CDs.
• Face-to-face advice at field days other public
  events
• Training packages /or accrediting providers of
  OHS training
• Specific industry sector guidance material
  campaigns including national ones for Prevention
  of Falls in construction industry Design 4
  Health in health aged care
• Small business, step-by-step guides some
  resources for face-to-face advice - NSW Small
  Business Asistance Strategy (one on one advice at
  WorkCover offices, after hours) Worksafe
  Victorias funding of 3 hrs free advice by OHS
  consultant.
• Some rebate schemes Victoria for ROPS NSW
  shearing hand pieces

12
Approach to Enforcement

• All regulators have enforcement/compliance
  policies/frameworks when how action taken
• Very broad statements of intent, eg safe secure
  workplaces (NSW), workplaces free from injury
  and disease (Vic) etc
• Enforcement principles indicate approach
• Transparency - open unambiguous dealings
  between regulator duty holders (ACT, NSW, Qld,
  SA, Vic)
• Proportionality - action taken proportionate to
  risk, seriousness of breach level of
  non-compliance (ACT, NSW, SA, Qld, Vic)
• Consistency - similar action in similar
  circumstances of risk, non-compliance,
  seriousness of breach (ACT, NSW, Qld, SA, Vic)
• Targeting - focusing resources on high-risk
  situations (ACT, Qld, Vic)
• Accountability - to government, statutory
  investigation bodies (Ombudsmen and ICAC)
  broader community (NSW)

13
Approach (continued)

• A pyramid of mechanisms but limited
  responsiveness (escalating according to track
  record of compliance)
• Vic Qld policies consider compliance record in
  determining seriousness of breach proportional
  response
• DOCEP Compliance Strategy - identifies attitudes
  to compliance (active compliance willingness to
  comply but not succeeding reluctance to comply
  not choosing to comply making little effort) -
  measures taken tailored by regulator to attitudes
  (from informing to encouraging by rewarding
  compliance using incentives to assisting by
  training, advisory visits, dispute resolution to
  monitoring by proactive inspections
  investigation of complaints to warning by
  cautioning issuing notices) finally to
  bringing full force of the law to bear
  (prosecution publication of outcomes)) - ? How
  fits with Worksafe Enforcement Policy
  enforcement action tailored to seriousness of
  breach
• Political priorities influence level of pyramid
  preferred by regulator

14

Types of Inspection

• What is inspection - an inspectors visit to a
  workplace or other premises associated action
  (? rigorous questioning of relevant parties over
  the phone re remote workplaces)
• Terms inspection, investigation (Cwth),
  workplace assessment (Qld)
• Types but generally combined
• Educative - general awareness raising outlining
  legislation
• Advisory - non-compliance, interpretation of
  legislation technical issues
• Enforcement - giving direction /or issuing
  notices
• Response - to hazard report, complaint or
  unresolved dispute
• Investigation - of incidents or accidents
• Blitz - focused inspection of high risk
  activities or significant hazard/risk
• Routine - by door to door visits, random
  selection or at intervals
• Targeted - particular industries or employers
• Follow-up assess compliance with notices or
  directions

15
Types (continued)

• All do each type of inspection except blitzes
  (not in WA, NT, Tas) routine inspections (not
  in NT, SA Vic)
• Some special cases
• Cwth Planned Investigation Program (PIP) each
  employer at least every 5 years - focus on
  management of OHS system weaknesses underlying
  OHS problems report on corrective action needed
  agency must develop action plan to address
  follow up with sample (more serious problems)
  notices not normally used
• WA Priority Investigations in all inspections
  inspectors assess compliance with checklist of
  key requirements for six priorities -
  electricity, manual handling, work at heights,
  slips trips, hazardous substances, new young
  workers

16
Proactive vs Reactive

• amount of reactive work /or responsibilities
  across different legislation limit time available
  for proactive (ACT, Tas, WA)
• designate some inspectors to proactive achieve
  more (reactive proactive ratio - SA 5050 NSW
  6040 NT 2080)
• specialist investigators proactive by others
  (reactive proactive ratio - Qld 5050 Vic 4060)

17
Who Makes Decisions AboutWhat is Inspected

• Tripartite boards, councils, committees set
  strategic directions (also governments
  Ministers)
• Agency wide planning, coordination oversight of
  consistency by Comcare Safety Operations Group
  Research Strategy Group NSW WorkCover
  Strategic Interventions Group (esp Statewide
  Programs Team) Hazard Management Group Qld
  Planning and Monitoring Unit Senior, Principal
  Specialist Inspectors Vic Worksafe Strategy
  Programs Division other Divisions WA Worksafe
  Executive Management Group SA strategic
  planning sets priorities directions
• Industry regional teams (divisions) also plan
  organise specific programs/projects consistent
  with agency priorities (NSW, Qld, SA, Vic , WA)
• ACT, NT Tas programs projects developed at
  level of industry or regional teams

18
Basis for Decisions

• Reactive work complaints investigations
• enforcement policy/procedures set criteria -
  consideration to potential seriousness of risk
  non-compliance, complaints or occurrences from
  particular workplace, need to resolve disputes,
  Ministerial concerns (need more info here)
• regional or industry team/group managers/leaders
  determine in conjunction with inspectors
  (according to policy/procedure)
• Proactive work - targeted inspections or blitzes
• priority areas set principally on basis of
  workers compensation data
• other information may be used
  incident/accident, prosecutions/notices in
  industry, stakeholder concerns, tripartite
  advisory body priorities, emerging issues, new
  legal standards, field experience HSRs, NOHSC
  priorities, community concerns (need more info re
  who uses what)
• targets may be poor performing industries,
  employers, occupations, workforce groups (young
  workers), specific hazards/risks
• Comcare unique - proactive investigations to
  inspect all employers at least once every five
  years

19
Targeted Inspection Programs

• Common focuses - 2 national campaigns several
  regulators targeting wine brandy, construction,
  transport, registrable plant, MH substances
• Diverse range of industry sectors or
  hazards/risks targeted by one or two
• Some have consistent methodology or proforma for
  targeted work
• Comcare OHS management audit tool with 64
  criteria based on SafetyMap but adapted to
  Commonwealth legislation (assess by observations,
  interviews reviewing documentation
  standardised report to employer)
• WHSQ Vic Worksafe protocols based on states
  legislation to assess compliance, provide infor
  about OHS obligations issue notices (Vic Field
  Link database has standard phrases to download
  into notices)
• Workplace Services SA uses AxonIT software to
  develop apply consistent question sets based on
  OHSW regulations tailored to target general
  OHSM appropriate enforcement action comments
  embed photos standardised report format

20
Measures of Effectiveness

• Little information available from regulators
  about evaluation of programs (need more info
  here)
• Agencies unable to indicate a particular program
  as especially successful but some said evaluating
  success difficult as particular programs or
  enforcement action overlap confounding
  variables (employment trends in industry sector
  or influence of industry associations)
• As a result, regulators typically monitor key
  milestones for a project then monitor higher
  level KPIs (trends in fatalities workers comp
  data) for the jurisdiction
• Possible indicators suggested by regulators
  include involvement by industry in program
  changes incompliance as measured by follow up
  visits awareness in industry reduction in
  fatalities, injuries or ill-health changes in
  notification reporting reduction in risk
  factors reduction in claims implementation of
  particular control measures.

21
Where to Next?

• Distribute report to regulators to
• help fill data gaps in summary tables data not
  previously available /or data for recent years
• check accuracy of descriptive information for own
  jurisdiction
• consider information from other regulators does
  it apply to you, if so add to
• address highlighted questions gaps or
  uncertainties in information available so far