Complying with Workplace Health and Safety Regulation

1
Complying with Workplace Health and Safety
Regulation

• Richard Johnstone
• Socio-Legal Research Centre, Griffith Law School
  and

2
Overview

• 1. Compliance with what? Changes in OHS standard
  setting
• The general duty provisions in the OHS statutes
• Regulations and Codes process standards
• Workplace arrangements
• 2. Systematic OHS management (OHSM)
• 3. What do we mean by compliance?
• A model of compliance in OHS
• Difficulties in complying
• Enforcement

3
Changes in Standard Setting

• Traditionally OHS was regulated by specification
  standards (detailed technical standards
  specifying safeguards/measures to be followed)
• Weaknesses of this approach to regulation
• difficult to understand and keep up to date
• developed ad hoc, uneven coverage
• ignored fact that hazards arise from the way in
  which work is organised
• did not involve workers in developing solutions
• precluded innovative/ cost-efficient solutions

4
Now OHS regulators use a mix of

• General duties
• Performance standards
• Process standards
• Documentation requirements

5
General duties

• employers to employees/workers (wherever are at
  work)
• employers and self-employed to others (involved
  in the conduct of the undertaking)
• controllers (occupiers) of workplaces
• designers, manufacturers, suppliers etc of plant
  and substances
• employees (have a duty to take reasonable care
  for their own safety and safety of others)

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The Queensland duty

• WHSA(Qld) s 28 imposes an obligation on a person
  who conducts a business or an undertaking to
  ensure the workplace health and safety of each of
  the employers workers and any other persons is
  not affected by the conduct of the employers
  business or undertaking.
• A person is a worker if the person does work,
  other than under a contract for services, for or
  at the direction of the employer, even if the
  worker is not paid for work done.

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• Defences in section 37 that the duty holder has
  complied with a relevant regulation, code of
  practice or, in the absence of relevant
  regulations/code, has taken reasonable
  precautions and exercised proper diligence to
  prevent the contravention.

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WHSA s 27A

• explicitly invokes the risk management process
  effectively provides that to manage exposure to
  risks in the workplace, a duty holder must
  identify hazards, assess risks that may result
  because of the hazards, must work through a
  hierarchy of controls to choose and implement
  appropriate controls, and must monitor and review
  the control measures.
• This is reinforced by a code of practice, the
  Risk Management Code of Practice 2007, which, in
  the absence of an applicable regulation or code
  of practice, must be implemented.

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Interpreting the general duties

• the courts have taken a broad approach to
  interpreting the general duties
• Must anticipate possible carelessness of
  employees
• General duties are personal and non-delegable
  duties - Paper systems are not enough
  management must ensure that systems are
  implemented.
• Offence to fail to provide a safe system of work
  prosecution does not have to prove an injury
  (inchoate offences cf manslaughter)

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A proactive and systematic approach

• employer must take a structured, systematic
  approach to safety in everything which is touched
  by the operations of the defendants. It is not
  enough to endeavour to comply with these
  obligations on an ad hoc basis looking at
  particular matters from time to time. .
  Employers are required to actively assess and
  take account of all risks that might foreseeably
  arise. Systems need to be created to deal with
  these risks and, to the extent possible,
  eliminate them. Employees need to be instructed
  and trained to apply these systems. The employer
  needs to assess from time to time whether those
  systems are working and whether employees are
  following them. This involves supervision.

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Regulations and Codes of Practice

• process requirements (prescribe a process, or
  series of steps, that must be followed by a duty
  holder in managing specific hazards, or OHS
  generally eg hazard identification and risk
  assessment and control processes)

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• performance standards (the regulator sets a
  performance target or performance outcome and
  leaves it to the duty holder to work out the
  best/most efficient manner of complying)
• documentation requirements (duty holders to
  document measures taken to comply with
  process-based standards, performance standards
  etc)

13
Workplace Arrangements

• Workers can establish work groups and elect
  health and safety representatives right to
  inspect the workplace, be trained, be consulted
  on workplace changes affecting OHS, access to OHS
  information etc
• OHS committees which are to include workers
  (facilitate co-operation between employer and
  employees formulate, review and disseminate
  standards, rules and procedures etc)
• Workplace health and safety officers for
  employers with more than 30 workers

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Constitutive regulation

• Regulator uses legal norms to constitute
  structures, procedures and routines which are
  required to be adopted and internalised by
  regulated organisations, so that these
  structures, procedures and routines become part
  of the normal operating activities of the
  organisation.
• The aim is for legal norms to infiltrate deep
  into the organisation to require the
  organisation, and the individuals within it, to
  act responsibly (Hutter, 2001, chapter 1)

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Requirements for Piecemeal OHSM?

• Currently OHS statutes take a piecemeal approach
  to OHS Management (OHSM) ie require aspects of
  OHSM (eg risk management processes, worker
  participation)
• Nevertheless require a systematic approach to
  OHSM, rather than simply mitigating particular
  hazards under a specification standard regime
  ie must take an active, comprehensive,
  programmatic and enduring responsibility for OHS
  quality, through a systematic managerial process
  to detect, abate and prevent workplace hazards
  (Frick et al 2000 1)

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Characteristics of systematic OHSM

• Senior management drives OHSM strategy
• A planned and order-seeking approach to OHSM
• A comprehensive approach to risk management
• Workers are actively involved and legally
  entitled to perform OHS functions
• A local understanding of OHSM and OHS know-how
• Arrangements to address OHS in work of
  contractors and other non-employment work rel.

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Characteristics of systematic OHSM

• The organisation learns from past experience
• OHSM policy, procedures and action taken are
  documented, complexity of documentation is
  minimised, and understanding and ownership of
  principles by those implementing is maximised
• OHSM is monitored using positive performance
  indicators
• OHSM is integrated into the organisations other
  management arrangements
• See Bluff (2003)

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Compliance

• Define
• compliance as the steps firms take to meet
  regulatory requirements
• and
• enforcement as all dealings between enforcement
  agencies and firms to ensure compliance.

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Compliance

• Overly simplistic to think that compliance is
  simply about regulators comparing the way in
  which actual behaviour conforms the requirements
  of published rules or standards
• Compliance from the regulators perspective is
  not just a single event, but a process of
  extended and endless negotiation (Manning, 1988)
• Parties build up social relationships and mutual
  trust which enables bargaining relationship to be
  maintained (see Hutter, 1997)

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Why is compliance on ongoing process of
negotiation?

• Business regulation more often than not imposes
  ongoing (or continuing or repetitive) obligations
  (it may take considerable time for organisations
  to organise themselves to reach the required
  standards)
• 2. Rules and standards are often unclear about
  what is meant by compliance (complexities of
  language impossible to standardise required
  performance preference for broad, inclusive
  rules)
• 3. The interpretation of facts may be challenging
  (involves complex and technical issues)

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Conceptual framework for business responses

• Haines (1997) identified two kinds of
  organisational responses to workplace fatalities.
  
• Some organisations responded in a virtuous
  manner, ensuring that as much thought as possible
  went into the changes that were made and that the
  response was far reaching .
• Others took a "blinkered" response, confining
  themselves to obvious changes, to limiting legal
  liability, and leaving broader issues unexamined.
  

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Variety of organisational responses to regulatory
requirements

• Conformity accept and adopt regulatory (i)
  goals and (ii) institutional means
• Innovation accept (i), but achieve with means
  other than (ii)
• Ritualism reluctant to accept (i), and
  implement (ii) perfunctorily
• Retreatism no engagement with (i) or (ii)
• Rebellion reject (i) and (ii) and substitute
  with antipathetic goals and means
• (Braithwaite, 1993, building on Merton,
  1968)

23
External pressures shaping firms responses to
requirements

• Haines (1997) showed significant external
  pressures which affect organisations ability to
  conform or be innovative in complying with
  regulatory requirements.
• Organisational culture was the "touchstone"
  (Haines, 1997 216). (An organisations
  assumptions about how success was to be
  achieved). A virtuous culture made a virtuous
  response possible, and a blinkered culture was
  likely to lead to a blinkered response.

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• Organisational behaviour and organisational
  responses to regulation could only be understood
  "when the social context ( the regulatory
  space) was taken into account."
• The "regulatory space" is affected by the size of
  the organisation, the industry within which it
  operates, industry competitiveness, and the
  organisations position within the industry.
• Can be conflicting regulatory and other demands
  within the regulatory space

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Stages in Compliance with OHS Standards (Parker,
2002 and Hutter, 2001)

• 1. A management commitment to comply through
  self-regulation
• 2. Learning how to comply, by acquiring skills
  (know how and personnel) for self-regulation
  (design/establishment)
• 3. Ongoing institutionalisation of compliance
• operational phase (procedures implemented to
  implement compliance detect, prevent and
  correct non-compliance)
• normalisation phase (processes
  institutionalised part of everyones job and
  way the firm does things)
• So compliance is extremely difficult to
  measure, and requires subtle and nuanced
  judgments

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Zwetsloots 4 stages in the development of OHSM

• Ad hoc - little expertise in OHSM, react to
  problems as occur
• Systematic stage - undertake occasional risk
  assessment, action planning, prioritise problems
  and implement control measures developing
  internal OHS competency (use outside expertise?).
  
• System stage - implement and maintain an OHSM
  system by continuous and well-structured
  attention to OHS before activities are
  undertaken procedures and accountabilities are
  clear focus on prevention and control
• Proactive stage - OHSM is integrated into other
  management systems and/or business processes
  attention to continuous improvement directive
  participation from everyone collective learning
  fostered fully fledged OHSM institionalised and
  constantly evaluated and reviewed.

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Difficulties with compliance

• Research suggests duty holders often have
  difficulty understanding these obligations and
  developing systematic approaches to OHSM.
• Jensens (2001 and 2002) research showed that
  Danish firms
• are mostly concerned with physical risks
• identified problems already known
• identified one or two immediate causes, rather
  than multi-layered causes
• generated paperwork, rather than preventive
  action

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• concentrated on resolving problems in existing
  worksites and activities rather than solutions
  involving design of equipment, workplaces and
  jobs
• emphasised the parties reaching a shared feeling
  of satisfaction with the job done, rather than
  following a hierarchy of control
• referred problems for resolution by a department
  responsible for technical equipment and
• demonstrated weaknesses in the ability to
  establish a participatory process covering all of
  the phases of risk management.

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Enforcement

• Informal sanctions persuasion, advice, warnings
  and threats.
• The formal sanctions include
• improvement notices
• infringement notices prohibition notices
• enforceable undertakings
• prosecution

30
Prosecution

• Queensland maximum penalties depending on
  outcome
• 187,500 for corporations for contraventions not
  resulting in death or grievous bodily harm etc
• exposure to a substance likely to cause death or
  grievous bodily harm and contraventions causing
  bodily harm (281,250)
• contraventions causing death or grievous bodily
  harm (375,000)
• contraventions causing multiple deaths
  (750,000).

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Role of Inspection and Enforcement

• Responsive enforcement model has been developed
  because of the limitations of both the advise
  and persuade approach and the deterrence
  approach. It covers the weakness of one with the
  strengths of the other (Braithwaite, 2002).
• Regulators should be responsive to the conduct
  of those they seek to regulate, or more
  particularly, to how effectively citizens or
  corporations are regulating themselves before
  deciding on whether to escalate intervention
  (Braithwaite, 2002 Ayres and Braithwaite, 1992)

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• Inspectors "oversee the firms own efforts to
  self-regulate (Braithwaite, 2002)
• Regulators should set goals and incentives to
  move firms to the next stage (Parker 2002 and
  Parker 2004)

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References

• Ayres, I and Braithwaite, J, Responsive
  Regulation Transcending the deregulation debate,
  Oxford University Press, New York, 1992
• Bluff, L, Systematic Management of Occupational
  Health and Safety, National Research Centre for
  OHS Regulation Working Paper 20, 2003
• Braithwaite, J, Restorative Justice and
  Responsive Regulation, OUP, Oxford, 2002
• Frick, K, Jensen, PL, Quinlan, M and Wilthagen,
  T, Systematic Occupational Health and Safety
  Management Pespectives on an International
  Development, Pergamon, Amsterdam, 2000

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• Gunningham, N and R Johnstone, Regulating
  Workplace Safety Systems and sanctions, Oxford
  University Press, Oxford, 1999
• Haines, F Corporate Regulation Beyond Punish or
  Pursuade, Clarendon Press, Oxford, 1997
• Hawkins, K, Environment and Enforcement
  Regulation and the Social Definition of
  Pollution, Clarendon Press, Oxford, 1984
• Hutter, B M, Compliance Regulation and
  Enforcement, Clarendon Press, Oxford, 1997
• Hutter, B M, Regulation and Risk Occupational
  Health and Safety on the Railways, Oxford
  University Press, Oxford, 2001

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• Jensen, P L, Assessing Assessment The Danish
  Experience of Worker Participation in Risk
  Assessment (2002) 23(2) Economic and Industrial
  Democracy 207
• Parker, C, The Open Corporation Effective
  Self-Regulation and Democracy, Cambridge,
  Cambridge, 2002
• Zwetsloot, G, Developments and debates on OHSM
  system standardisation and ceritifcation in
  Frick, K, Jensen, P, Quinlan, M, Wilthagen, T,
  (eds) Systematic Occupational Health and Safety
  Management Perspectives on an International
  Development, Pergamon, Amsterdam, 2000