AUSTRALIAN INSTITUTE OF CRIMINOLOGY ENFORCEMEMT AND COMPLIANCE OCCUPATIONAL HEALTH AND SAFETY, VICTORIA

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1 AUSTRALIAN INSTITUTE OF CRIMINOLOGY ENFORCEMEMT AND COMPLIANCE OCCUPATIONAL HEALTH AND SAFETY, VICTORIA Cath Duane Director, Operations Support Division, WorkSafe Victoria Paper presented at the Current Issues In Regulation: Enforcement and Compliance Conference convened by the Australian Institute of Criminology in conjunction with the Regulatory Institutions Network, RSSS, Australian National University and the Division of Business and Enterprise, University of South Australia and held in Melbourne, 2-3 September 2002

2 Introduction The prevention arm of the Victorian WorkCover Authority, WorkSafe Victoria, is the regulatory agency which administers and enforces occupational health and safety legislation in Victorian workplaces. WorkSafe Victoria s current strategic approach to dealing with workplace health and safety issues is outlined in Strategy 2000, a three year plan which identifies 5 specific target areas for focus of effort and sets out a framework called Constructive Compliance to underpin all our activities aimed at preventing work-related injury, ill-health and death. The Constructive Compliance framework combines encouragement to duty holders or positive motivators to improve health and safety (through information, education, communication and financial incentives) and strong deterrence against poor performance in health and safety (through increased inspection activity and issuing of Notices and Directions when non-compliance or immediate risks are observed, and increased number and more strategic prosecution with higher penalties). The overall intent of applying the Constructive Compliance framework to all the regulator s activities is to acknowledge that use of a range of tools, in combination, is considered to be the most effective strategy to achieve compliance with statutory obligations and continued improvement in protecting the health of workers and others who come into contact with workplaces. In particular, the application of the Constructive Compliance framework is intended to be balanced that, overall, the full range of tools across the encouragement deterrence spectrum are used in appropriate circumstances, without one or other end of the spectrum dominating the play. Although briefly addressing the encouragement end of the spectrum, this paper concentrates on matters to do with the deterrence end of the spectrum, and in particular the direct role of inspectors when attending workplaces. This paper does not attempt to address issues relating to prosecution activity a subject which warrants separate more considered attention than can be dealt with here. Rationale for Strategy 2000 and Constructive Compliance framework Since 1993, there has been minimal reduction in work-related injury, ill-health and death statistics in Victoria (as measured by workers compensation claims). This is not dissimilar to many other jurisdictions, here or overseas. Strategy 2000 identified the need for a continued focus of effort on preventing fatalities, and targeted a number of sub-sectors in the 4 worst-performing industry categories, 100 of the worstperforming organisations and the risk of musculo-skeletal disorders (which accounts for more than 50% of all claims) for specific attention. The fifth focus area in the current strategy is implementation of regulations covering Major Hazard Facilities. A sustained concentration of effort by the regulator on these targeted areas of poor performance was considered to give us the best shot at having the statistics move in a downward direction. It was also identified that greater emphasis was required on the specific role of the regulator than had been apparent in the mid-late 1990 s. The role of the regulator distinguishes WorkSafe Victoria from all other players in the OHS arena in this state and yet there had been comparatively less activity on the deterrence enforcement side of the scales over those years both comparative to the mid 1980 s to mid 1990 s and comparative to other OHS jurisdiction in Australia, particularly NSW, Queensland and Western Australia. 2

3 Encouragement for Effective Health and Safety Through information, education and communication strategies and provision of financial incentives, WorkSafe Victoria aims to assist or facilitate change in workplaces by those most directly concerned. We have sought to do this by means such as: improving relationships with representative bodies for employers and workers through consultative forums of both a general and industry sector-specific nature and seeking to leverage those bodies to play a more strategic role developing in conjunction with representative bodies industry-specific guidance material promoting consultative arrangements and mechanisms at the workplace level, particularly the roles and functions of health and safety representatives development of marketing campaigns aligned to key aspects of our targeted programs, and establishment of a Safety Development Fund and a Small Business Fund to financially support innovations or widespread application of good solutions to significant health and safety risks. These strategies all have as their objective achievement of voluntary compliance with legislative obligations by duty holders and sustainable improvement in workplace health and safety. They are also in recognition that that our inspectors, investigators and prosecutors cannot directly reach all workplaces to enforce compliance with health and safety laws. Strong Deterrence for Poor Health and Safety Performance The efforts of WorkSafe Victoria on the encouragement side of the Constructive Compliance framework are now again more finely balanced with or complemented by a refocussed effort on the enforcement side since late Our Compliance and Enforcement Policy, revised in March 2001, reinforced that the primary role of an inspector when attending workplaces is to enforce compliance to ensure health and safety. This contrasts with what had become standard practice for a couple of years prior to this when field officers for even the term inspectors had been disbanded for a time effectively acted as consultants to workplace parties. A spill of inspectors positions and those of the team leaders in 1998, the then senior management of the Victorian WorkCover Authority not having any significant expertise in acting as a health and safety regulator (for health and safety law administration became part of the VWA s responsibilities only in 1996), and newly appointed field staff and managers not being given sufficient training to perform their regulatory role all combined to create a climate where provision of advice and assistance to workplace parties was the primary role of those who were technically appointed as inspectors. During this period, it was not usual for a workplace to have had an inspector attend over a dozen times in the course of 12 months, but still be found to have such basics as unguarded machinery causing injuries to workers. There were some exceptions to this consultancy type role, such as in the construction industry where a zero-tolerance campaign had been launched in 1999 in response to a relatively high rate of fatalities, but in most industry sectors where inspectors were active the consultancy-type role prevailed. In 2001, with compliance and enforcement newly emphasised as the key role for inspectors, it became policy and expected practice for inspectors to issue written Notices or Directions when noncompliance or an immediate risk was detected (rather than merely give advice or verbal directions), and for escalation of enforcement activity if the same contravention or risk was evident on a subsequent occasion. 3

4 Apart from aligning more with the regulator role, this renewed approach was aimed at having the inspectorate be more efficient in terms of what it could achieve in terms of relativity small numbers of inspectors (230 at its peak) compared to the number of workplaces in Victoria (approximately 300,000). The reaction to the renewed approach to compliance and enforcement amongst inspectorate staff and their management was mixed. A proportion were very comfortable, believing this to always have been their rightful role. A proportion were very uncomfortable. And in between was a proportion who would readily adopt to the regulator role given appropriate training and support. Some of the particular concerns we needed to address, which had been expressed by inspectors about playing more of a regulator role, were: why there needed to be renewed focus on enforcement, whether they would have to spend a lot of time at fewer workplaces in order to identify all possible breaches of legislation on which to issue Notices or Directions, whether there would be quotas for the issuing of Notices or Directions, would there be back-up and support by our Legal Services and Investigations Division for those matters referred for escalated enforcement activity, why policy should dictate how and when inspectors would exercise their statutory powers, how consistency would be achieved amongst an inspectorate recently restructured along industry sector lines aligned to the targeting approach of Strategy 2000, how inspectors might be supported if complaints were made by employers about greater enforcement activity, and how inspectors could effectively play both an enforcement role and an advisory role. These concerns were responded to during a series of presentations across Victoria in April 2001 to groups of inspectors as the Compliance and Enforcement Policy and the framework setting out how it was to be operationalised was rolled out. Inspectors then attended training courses covering basic investigation skills and techniques to build confidence in performing enforcement functions including how to de-escalate conflict that may generate when doing so. Another restructure in mid 2001 resulted in attention being refocused on things other than support to the ongoing implementation of the Compliance and Enforcement Policy for a time. However, inspectors in their day-to-day interventions were readily applying the policy in practice. For the year , 10,500 Notices or Directions had been issued by inspectors compared to 6,300 in and 5,900 in For the year , the numbers increased further to 15,900. During , once restructuring implications settled, renewed effort has been given to the infrastructure supporting inspectors in their work. Field reports issued to workplace parties invite comment about the conduct of any inspection, and a centrally coordinated and monitored system has been introduced to consistently handle any complaints about the conduct of inspectors. Assessment of the application by inspectors of the Compliance and Enforcement Policy has been more specifically integrated in WorkSafe Victoria s quality assurance program for inspection work and reviewed in cases where Notices or Directions were appealed by the recipient (a relatively infrequent situation at significantly less than 1% of all Notices and Directions issued). 4

5 The learnings from the QA program and the Notice and Direction appeals have triggered the need to clarify and elaborate on some aspects of the Operational Framework for applying the Compliance and Enforcement Policy, and to revise the operational procedures for issuing Notices and Directions to provide more comprehensive guidance to inspectors. Some current challenges facing the inspectorate when issuing Notices and Directions, which are to be addressed in the enhanced operational framework and procedures currently being worked on, are to ensure in all cases that o o o sufficient inquiries are made to ascertain the correct duty holder and their identity, sufficient evidence is gathered to properly form an opinion there has been a contravention of legislation or immediate risk and the reasons for the opinion, and any directions to remedy the contravention on immediate risk are appropriate and specific enough to sufficiently address the issue. There are other more strategic challenges we are currently seeking to address in applying the Compliance and Enforcement Policy. One of these is having inspectors identify and recommend additional enforcement action other than prosecution in appropriate cases. Specifically, we have traditionally had very few cases where contraventions by licensed or approved persons or organisations have been referred by inspectors for possible revocation or suspension of their license or approval. In some respects, this action could be regarded as even more effective both as punishment and for general deterrence than prosecution in appropriate cases, as the outcome affects their ability to continue to earn income in their chosen work or business. Another strategic challenge for us at present is to ensure consistency of approach in incorporating relevant elements of the Compliance and Enforcement Policy in targeted projects involving workplace intervention across the range of industry sectors on which we are focussing our attention. This is particularly important as we seek to address a wide range of issues including large employers with multiple and varied worksites, small business, the implications of labour hire and other less-traditional but growing forms of employment, stress, fatigue bullying etc. Another challenge I want to cover in this paper is the reaction of some employers and employer associations to the renewed vigour with which compliance and enforcement activity have been undertaken in the last couple of years. This pushback has been directed at both WorkSafe Victoria and the Victorian Government. The Victorian Labor Government last year introduced a Bill into Parliament which sought to increase maximum penalties in health and safety legislation and to amend the Crimes Act in Victoria to enhance the capacity to prosecute larger corporations and their senior officers for manslaughter where gross negligence resulted in workplace death. (Although corporations can be prosecuted for manslaughter under current law, it really only has full effect in the case of small business.) A concerted campaign opposing the Bill was launched by employer groups primarily arguing such legislation took the focus away from prevention and towards punishment. The Bill was defeated in the Upper House earlier this year by the non-labor members of Parliament. It is regrettable that the employer groups opposing this legislation did not appear to appreciate the potential impact that could be achieved for prevention through deterrent strategies of higher penalties for non-compliance and the prospect of gaol sentences and/or very significant fines where gross negligence resulted in death or serious injury. 5

6 In relation to WorkSafe s direct activities, through issuing Notices and Directions, conducting prosecution and importantly publicising both individual cases and the general approach there has been an amount of disquiet expressed by employer representatives at our stakeholder forums, directly to our Chief Executive, Board Members and Minister, and publicly at various conferences and seminars. Our inspectors often face questioning and criticism of their role when directly dealing with employers at the workplace level. We have responded to this in a number of ways, by explaining the rationale of the approach in public forums and stakeholder forums and making no apology for it. We are, after all, the regulator for health and safety in Victoria and, as stated earlier in this paper, our compliance and enforcement function is what distinguishes us from all other participants in this area. Our Compliance and Enforcement Policy is published in written form and on our web-site, and statistics of our actions are included in the annual reports of the Victorian WorkCover Authority and provided at key stakeholder forums. We have published a booklet to inform others about the role of inspectors and the nature of their powers in seeking to enforce compliance with health and safety laws. And, most recently, we televised a series of advertisements which seek to educate the public about the existence of health and safety laws and the inspector s role in enforcing them. In these ads, the actors use the very words of some of our inspectors who believe that ads help create a more informed and accepting space in which they can operate more effectively. Conclusion WorkSafe Victoria is again operating to a compliance and enforcement policy which stresses our primary role as a regulator, but facilitates combined use of a range of tools to both encourage effective workplace health and safety and deters against poor performance. In coming to develop this revised policy and during its implementation, WorkSafe Victoria has faced a number of challenges, both internally and externally. Like any regulator, there will no doubt continue to be challenges to face. 6