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Complying with Workplace Health and Safety Regulation


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Title: Complying with Workplace Health and Safety Regulation

Complying with Workplace Health and Safety
  • Richard Johnstone
  • Socio-Legal Research Centre, Griffith Law School

  • 1. Compliance with what? Changes in OHS standard
  • 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

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

Now OHS regulators use a mix of
  • General duties
  • Performance standards
  • Process standards
  • Documentation requirements

General duties
  • employers to employees/workers (wherever are at
  • 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)

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.

  • 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.

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.

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

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.

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)

  • 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

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

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
  • 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)

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
  • 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)

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.

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
  • OHSM is integrated into the organisations other
    management arrangements
  • See Bluff (2003)

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

Why is compliance on ongoing process of
  • 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
  • 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
  • 3. The interpretation of facts may be challenging
    (involves complex and technical issues)

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.

Variety of organisational responses to regulatory
  • 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,

External pressures shaping firms responses to
  • 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.

  • 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

Stages in Compliance with OHS Standards (Parker,
2002 and Hutter, 2001)
  • 1. A management commitment to comply through
  • 2. Learning how to comply, by acquiring skills
    (know how and personnel) for self-regulation
  • 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

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.

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

  • concentrated on resolving problems in existing
    worksites and activities rather than solutions
    involving design of equipment, workplaces and
  • 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.

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

  • Queensland maximum penalties depending on
  • 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

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)

  • 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)

  • 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

  • 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

  • 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