Workplace Health and Safety Queensland (WHSQ) recently released its Compliance and Enforcement Policy 2009 (Policy). This Policy replaces WHSQ’s existing Enforcement Framework and applies to the administration of the Workplace Health and Safety Act 1995, Dangerous Goods Safety Management Act 2001 and Electrical Safety Act 2002. The Policy, which is modelled on the National Occupational Health and Safety (OHS) Compliance and Enforcement Policy, takes a risk-based approach to compliance and enforcement.
Focus on Risk
Under the existing Enforcement Framework, WHSQ prioritised workplace incidents causing death or grievous bodily harm as part of its enforcement processes. In contrast, the new Policy focuses on risks to health and safety, rather than events. In this regard, the Policy provides that WHSQ will target compliance and enforcement strategies to address the following priorities:
- reducing high incidence/severity risks
- improving the capacity of business operators and workers to manage OHS effectively
- preventing occupational disease more effectively
- eliminating hazards at the design stage
- strengthening the capacity of government to influence OHS outcomes, and
- protecting the community and workforce.
Risk based and responsive
The new compliance and enforcement strategy has two prongs:
- risk based compliance and enforcement; and
- responsive compliance and enforcement.
Firstly, the Policy aims to target compliance and enforcement actions to areas of greatest risk to health and safety. Secondly, the compliance and enforcement measures seek to respond to the particular circumstances of the relevant obligation holder or workplace to promote sustained compliance. The Policy also sets out the aims of responsive sanctioning, which forms part of responsive compliance and enforcement, such as changing behaviours, eliminating financial incentives of non-compliance, proportionality, reduction of harm and deterrence.
The Policy incorporates a “Compliance Pyramid” which has three levels: encouraging and assisting compliance at the base, directing compliance in the middle and sanctions at the apex. The Compliance Pyramid illustrates the increasing severity of compliance options at the Department’s disposal. Information, advice and assistance are the preferred elements of interaction with obligation holders at the base of the pyramid, prohibition notices and directions are in the middle and criminal proceedings are at the apex of the Compliance Pyramid.
The existing Enforcement Framework set out a categorisation of events which were notified to WHSQ and enabled intervention by WHSQ to be prioritised and proportionate. Events were classified as type one, two, three or four events with type one being workplace incidents causing death or grievous bodily harm to workers or members of the public; type two events involving workplace incidents causing bodily harm and dangerous events; type three events were complaints involving significant risk to health and safety and type four events were other complaints.
The new Policy does not refer to the categorisation of events notified to WHSQ, rather the Policy provides that in selecting which complaints or reports to investigate, and in deciding the level of resources to be used, the following factors will generally be taken into account:
- the severity and scale of potential or actual harm
- the seriousness of any potential breach of the law
- the obligation holder’s compliance history, including such matters as prior convictions and notices issued
- the enforcement priorities
- the practicality of achieving results, and
- the wider relevance of the event, including matters of significant community concern or emerging issues.
The Policy further provides that in determining whether or not a matter should be further investigated, the Department will have regard to the following priority areas for investigation:
- fatalities and serious injuries or where there is a risk of such consequences damage to property or the environment caused by electricity or hazardous materials
- non-compliance with notices or directions
- offences against Department inspectors
- offences against persons exercising OHS responsibilities at the workplace
- discrimination against employees on the basis of their OHS activities, and
- failure to notify incidents.
It seems from the new Policy that there is a greater focus on WHSQ providing guidance to industry to assist obligation holders to meet their statutory occupational health and safety obligations. This is enshrined as one of the key principles in the Policy which states that the Department is to provide support, advice and guidance to help people comply with OHS legislation. This approach will no doubt benefit industry, particularly those obligation holders with less means to be able to invest time and money to put in place appropriate systems to meet their obligations.
While the primary focus of the new Policy seems to be prevention, there is still the capacity for other enforcement measures to be taken such as the issue of notices and prosecutions. In that regard, it is likely that there will be more risk-based prosecutions in situations where an injury may not necessarily have occurred but the severity and scale of potential harm is high. It is important for businesses to be vigilant in monitoring risks that arise in the workplace and comply with WHSQ requirements.