How different can occupational health and safety (OHS) regulators be? A review into WorkSafe Victoria was announced in February 2015 but the review into its equivalent in South Australia, SafeWorkSA, is more progressed and has released a public discussion paper entitled “Transforming Work Health and Safety Performance“. Its suggestions should be noted by James Mackenzie the reviewer of WorkSafe Victoria.
Maybe not surprising to many, the future is a reworking of the past. According to a media release from the South Australian Industrial Relations Minister, John Rau:
“SafeWork SA is both the educator on work health and safety, and the regulator responsible for issuing infringement notices and carrying out prosecutions for breaches,” he said. “Under the current structure these two elements are not clearly defined and that can discourage businesses from contacting SafeWork SA and asking for assistance.
“It is not acceptable that people can not ask for help for fear of being prosecuted for breaches that may be found. At the same time the regulator can’t ignore unsafe work practices that endanger workers.”
Mr Rau the primary focus for the Government was preventing workplace injury, and the structure and culture of SafeWork SA needs to reflect this.
“Feedback from employers showed that many feared asking SafeWork SA for help because a visit from an inspector may lead to compliance action being taken against them,” he said. “These proposed changes separate the compliance and education functions because the educator should be approachable, respected and able to assist both employers and workers to understand their obligations.
Compliance activity by the Inspectorate needs to be proactive. It must enforce obligations and reduce the potential for injuries to occur. Following the Return to Work reforms last year, it became clear to me that structural separation of SafeWork SA was necessary to bring about the change we need to see in this area.” (emphasis added)
The emphasis is clearly to renew faith in the OHS regulator after many years of controversy by clarifying organisational roles
One-Stop-Shop
SafeWorkSA pursued the concept of being a “one-stop shop” for all things safety (a phrase commonly used in relation to OHS) but there is an inherent political, economic and ideological conflict between the prevention of injury and the compensation for injury. This conflict is reflected in, and perhaps caused by, the core values of the insurance industry where compensation is seen as sufficient. Whereas the safety profession and the trade union movement believes that economic concessions may be required in order to prevent physical and mental harm. In the middle of this is the Return-To-Work coordinators, and advocates, who try to fix the results of safety failures with limited funding, resources and systemic time pressures.
To a large extent the SafeWorkSA plan should be very familiar to OHS professionals:
“There are two key strategies for preventing work injuries:
- a strong enforcement and compliance regime which makes sure work health and safety laws are not being breached; and
- a comprehensive education and support service which provides businesses and workers with the information needed to keep themselves and their workplaces safe.” (page 1)
One could argue that the second “key strategy” should be emphasised over enforcement as the OHS/WHS laws clearly state that the principle responsibility for preventing harm rests with the employer or the PCBU. It is amazing that any business operator should still believe that workplace safety is the responsibility of some one else, and that that someone could be a government department or authority, but the misbelief exists.
Dual conflicting roles of OHS Inspectorate
There is an implication in the strategy document that previous strategies have contributed the misbelief. Previously in South Australian and other Australian States, the OHS regulator has blended the enforcement role and the advisory role into the inspectors, or field officers. The economic basis for having those who are out in the field respond to incidents and needs in different ways is understandable (some may say this is “common sense”) but having one role applying two very different approaches to OHS was always going to be confusing. No wonder business operators were hesitant to contact SafeWorkSA for advice. Many have a similar fear of the Australian Taxation Office.
The misbelief was further encouraged by the dual role of the Inspectors who were often asked for their advice on controlling a particular hazard and were told that Inspectors were not allowed to provide this advice, as has happened in Victoria in the past. Aren’t they subject matter experts? Isn’t this why they were recruited? We are encouraged to call the Regulator for advice but the Regulator’s representatives are not allowed to give that advice?
WorkSafe Victoria tried to avoid this conflict by establishing a Small Business Advisory service, mirrored by other regulators, but these programs seem to have had limited success. One could argue why a Government authority should be offering or support such services at all. Should not the Government be encouraging membership of industry-based associations where a broader range of services are available and of which many businesses are already members? Workers Compensation insurance agents also often have a requirement to provide OHS advisory services that will help businesses reduce insurance premiums by improving safety and at no additional cost to the employer.
Transformations
The recent upheaval in WorkSafe Victoria and Victoria’s State politics is likely to lead to a similar strategy for that State. Acting CEO Clare Amies outlined the following factors facing WorkSafe Victoria in a presentation in February 2015 as part of “transforming our organisation”:
- “Growth in health care & social assistance
- Critical point for manufacturing and the costs of doing business in Victoria
- Changing mix in full-time, part-time and casual workforce
- Reforms in regulatory oversight
- Rising pressure to reduce red tape
- Connection regulation: lead agency models to streamline regulation
- Premium pricing in other jurisdictions & impact of Comcare changes
- Increasing expectations for information, education & support
- Planning for Centre of Excellence” (Slide 4)
Cosgrove
The former CEO Denise Cosgrove was enlisted for her insurance experience in New Zealand and endorsed by the then Minister for WorkCover, Gordon Rich-Phillips:
““Ms Cosgrove will bring valuable skills and knowledge to the business, which continues to deliver great outcomes for all Victorians, including the safest workplaces in the state’s history and the lowest WorkCover premiums in Australia,” Mr Rich-Phillips said”.
The politics of OHS in the quote above is further emphasised by Rich-Phillips’ recent grumbles over the recently announced review into WorkSafe being undertaken by James Mackenzie.
It may be that South Australia is simply in the political cycle about workplace safety where Labor governments (as South Australia and Victoria currently have), with their strong traditional trade union links, give more attention to the safety of workers than to the business costs. Everyone seems to agree that OHS is a cost to business but they argue about who should wear that cost – the business owners or the workers.
The South Australian and Victorian reviews are unlikely to encourage consensus on this argument. Each political party and ideology will simply bite their tongues on the issue until the political climate swings to their advantage and then OHS oversight will change again.
