Despite being dated November 2016, the long-awaited report entitled ‘Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria’ (the review) was released on 18 December 2017, just in time for some light holiday reading. At the same time the Victorian government response to the review was also released (the government response).
The review was undertaken between February and November 2016 by Dr Claire Noone, Ms Cathy Butcher and Ms Margaret Donnan (the panel). The terms of reference included to examine, review and make recommendations about “…the relevance and appropriateness of WorkSafe’s Compliance and Enforcement Policy” and “…the appropriateness and effectiveness of Worksafe’s compliance and enforcement activities”.
In all, 22 recommendations were made by the panel (after having reviewed 112 submissions) and a number of them are summarised below.
Key comments of the panel included that WorkSafe’s compliance and enforcement framework (the framework) did not involve a “coherent suite of documents” which was “…readily accessible on the website” and that there was no clear articulation as to how the “…components fit together”. The website did not indicate whether the available documents were up to date or what the process is for reviewing and managing the compliance and enforcement (C&E) documents. Therefore, the panel’s first recommendation was that WorkSafe “…clearly articulates the hierarchy of compliance and enforcement documents and explains each …[document]…its purpose and…how it fits within the suite…”. The government response states that a guide will be designed, developed and delivered which sets out the purpose of each document in order to “provide clarity to dutyholders”, and that a formal process for review of the framework and a ‘refreshed’ C&E policy will be delivered by June 2018.
The review also referred to the need for WorkSafe to work more cooperatively with co-regulators including the EPA (which echoes previous findings of the Victorian Auditor-General’s Office and parliamentary Inquiries) to, amongst other things, share information, tools and strategic initiatives and collaborate on national campaigns.
The review also found that “…none of the documents in the C&E Framework sets out which particular tool should be used to address a specific compliance and enforcement issue” which has led to the stakeholder view that “…there is confusion and a lack of consistency in the approaches taken by WorkSafe inspectors”. Interestingly, the panel relied on the EPA’s 2011 C&E policy (which includes a table indicating what kind of risk and level of culpability will lead to one of the various enforcement responses) as an example of best practice in this area.
Comparisons were also made to other regulators’ (including the EPA) communication of priorities for enforcement and prosecution and the recommendation was made that WorkSafe should publish an annual compliance and enforcement plan. According to the government response, WorkSafe will provide additional detail in its 2018/2019 Corporate Plan.
It was noted that the infringement notice scheme has not yet been activated by WorkSafe (despite the use of infringement notices elsewhere). The government response notes that in principle support has been given to ‘considering’ offences for which infringement notices may be issued (although no timing has been given) so as to enable the use of infringement notices as part of the enforcement toolkit.
In relation to enforceable undertakings (EUs) there was “…general support for the continuing use of EUs from unions and employer associations”. The review noted that the current policy on when it is appropriate to consider an EU and its contents “…should be enhanced to encourage wider use of the tool”. The panel also found that the current EU Policy:
- doesn’t clearly state what the role of the EU is within the suite of C&E tools;
- doesn’t state what the objectives of individual EUs should be geared towards; and
- sets out evaluation criteria but not whether all or some of those criteria have to be met.
It was suggested that a revised EU policy address specific recommendations of the Australian Law Reform Commission that the EU should:
- bear a direct relationship with the alleged breach;
- be proportionate to the breach; and
- set out the circumstances in which the regulator will accept an EU and include examples of acceptable and unacceptable terms and when and how third parties’ views will be taken into account.
The government response notes that the recommendation is supported although it states that WorkSafe will “…continue to ensure that the policy is kept up to date and relevant as part of its ongoing period reviews”.
Other recommendations included that WorkSafe:
- collaborate with its stakeholders to seek “…input in developing, testing and refining strategies and interventions that address workplace risks” to create more “…nuanced and effective strategies and interventions”;
- publish a research agenda which identifies its research priorities. The government response is that publication of the agenda will commence in 2018;
- implement a formal process for evaluation of its strategic interventions and develop KPIs to measure performance against the principles in the C&E policy;
- update its website to improve the accessibility of information and advice. The government response is that this has commenced and ongoing improvements are to be made;
- increase its focus on strategic workplace visits. The review noted that WorkSafe conducted more than 46,000 inspector visits in 2015/2016 but that the “…percentage of strategic visits had remained static over time”.
- ensures that lessons learnt from the internal review process and quality assurance are used to improve consistency in inspector decision-making;
- undertakes more strategic prosecutions. The government response is that WorkSafe will commence measuring and reporting on the alignment of prosecutions with strategic priorities based on the greatest risks to workplace safety. Further, WorkSafe has increased its investigation resources.
A number of the recommendations of the review panel directly address common experiences of employers in interactions with WorkSafe, such as the lack of transparency in relation to when and how enforcement tools will be used. It is pleasing to note that the government response supports the recommendations and that we should see a number of ‘refreshed’ documents from the regulator in June 2018.
 The panel also met with the OHS Advisory Committee, Stakeholder Reference Group, WorkSafe executive leadership team, WorkSafe Board and other persons including from the EPA and the Qld and NSW safety regulators although the information from these meetings is not summarised in detail. Unfortunately, there are also a number of internal WorkSafe documents referenced in the report which aren’t publicly available.
 ‘Strategic visits’ are defined in the report as “…proactive and undertaken as part of a project or program intervention that focuses on particular hazards or industries”.