IROHS010 Submission to the Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria 1 August 2016
ABOUT THE HOUSING INDUSTRY ASSOCIATION...3 1. INTRODUCTION...4 2. RESPONSE TO SPECIFIC QUESTIONS...4 2.1 OHS COMPLIANCE AND ENFORCEMENT FRAMEWORK... 4 2.2 OHS COMPLIANCE AND ENFORCEMENT ACTIVITIES... 5 2.3 USE OF DATA AND INFORMATION TO DRIVE COMPLIANCE AND ENFORCEMENT ACTIVITIES... 6 2.4 EFFECTIVE COMMUNICATION AND ENGAGEMENT WITH STAKEHOLDERS... 6 2.5 PRACTICAL AND CONSTRUCTIVE ADVICE AND INFORMATION... 7 2.6 FOSTERING COOPERATIVE, CONSULTATIVE RELATIONSHIPS... 8 2.7 INSPECTORATE ACTIVITY... 8 2.8 ENFORCEMENT MEASURES... 8 2.9 WORKING WITH OTHER AGENCIES... 9 2.10 CURRENT AND FUTURE CHALLENGES... 9 Housing Industry Association contacts: Gil King Executive Director Victoria Housing Industry Association Tony Lopez Assistant Director OHS Policy Housing Industry Association - i -
ABOUT THE HOUSING INDUSTRY ASSOCIATION The Housing Industry Association (HIA) is Australia s only national industry association representing the interests of the residential building industry, including new home builders, renovators, trade contractors, land developers, related building professionals, and suppliers and manufacturers of building products. As the voice of the industry, HIA represents some 40,000 member businesses throughout Australia. The residential building industry includes land development, detached home construction, home renovations, low/medium-density housing, high-rise apartment buildings and building product manufacturing. HIA members comprise a diversity of residential builders, including the Housing 100 volume builders, small to medium builders and renovators, residential developers, trade contractors, major building product manufacturers and suppliers and consultants to the industry. HIA members construct over 85 per cent of the nation s new building stock. HIA exists to service the businesses it represents, lobby for the best possible business environment for the building industry and to encourage a responsible and quality driven, affordable residential building development industry. HIA s mission is to: promote policies and provide services which enhance our members business practices, products and profitability, consistent with the highest standards of professional and commercial conduct. The residential building industry is one of Australia s most dynamic, innovative and efficient service industries and is a key driver of the Australian economy. The residential building industry has a wide reach into manufacturing, supply, and retail sectors. The aggregate residential industry contribution to the Australian economy is over $150 billion per annum, with over one million employees in building and construction, tens of thousands of small businesses, and over 200,000 sub-contractors reliant on the industry for their livelihood. HIA develops and advocates policy on behalf of members to further advance new home building and renovating, enabling members to provide affordable and appropriate housing to the growing Australian population. New policy is generated through a grassroots process that starts with local and regional committees before progressing to the National Policy Congress by which time it has passed through almost 1,000 sets of hands. Policy development is supported by an ongoing process of collecting and analysing data, forecasting, and providing industry data and insights for members, the general public and on a contract basis. The association operates offices in 23 centres around the nation providing a wide range of advocacy, business support including services and products to members, technical and compliance advice, training services, contracts and stationary, industry awards for excellence, and member only discounts on goods and services. Page 3 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria
1. INTRODUCTION HIA notes that in February 2016, Minister for Finance Robin Scott MP appointed the Independent Occupational Health and Safety Compliance and Enforcement Review Panel. Subsequent to this in June the Review Panel released a discussion paper inviting public comment on the appropriateness and effectiveness of WorkSafe Victoria s (WorkSafe) policies and activities in order to ensure occupational health and safety (OHS) laws and standards in Victoria are complied with, enforced and communicated (Discussion Paper). The terms of reference broadly direct an examination and review of WorkSafe s: Compliance and enforcement policy (C&E policy). Compliance and enforcement activities. The alignment of WorkSafe s C&E policy with the national compliance and enforcement policy (NC&E policy). Ability to discharge its functions in relation to providing OHS compliance information and promoting OHS awareness, education and training. These submissions are provided in response to these terms of reference and the Discussion Paper. HIA generally considers that WorkSafe has been an effective and constructive regulator in its compliance and enforcement activities in the construction industry. The promotion of compliance and enforcement activities through a robust C&E Policy and supplementary enforcement policies has ensured the delivery of a consistent message when it comes to compliance expectations within the industry. Additionally, a focus on practical and constructive motivators has assisted duty holders comply with their OHS obligations encouraging health and safety improvements. However, the balance between compliance and enforcement activities and the impost of unnecessary regulatory burden on business, particularly small business must be monitored and maintained in order to ensure that, in practical terms a workplace can comply with its safety obligations. Further to this, HIA would highlight that WorkSafe needs to find specific ways of delivering safety messages to small business, who received the highest number of visits for WorkSafe. Information and guidance material must be tailored to the needs of small business. Such moves would assist in their compliance with, and understanding of, OHS laws. HIA provides responses to the specific questions raised in the Discussion Paper below. 2. RESPONSE TO SPECIFIC QUESTIONS 2.1 OHS COMPLIANCE AND ENFORCEMENT FRAMEWORK Question 1: How appropriate and relevant is the C&E policy in guiding WorkSafe s approach to ensuring Victorian OHS laws are complied with, enforced and communicated? The C&E policy along with supplementary enforcement policies clearly set out the way WorkSafe will undertake compliance and enforcement activities. These policies are quite appropriate and relevant. HIA welcomes the fact that the C&E policy provides that: In performing its functions, WorkSafe applies a strategy of constructive compliance a balanced combination of positive motivators and deterrents to improve workplace health and safety. HIA believes that this strategy and the rest of the C&E Policy are effective at facilitating how WorkSafe should approach its compliance and enforcement activities. In particular we believe that a focus on mechanisms such Page 4 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria
as education, information, consultation and other constructive incentives for compliance have been key drivers of OHS improvement. Constructive compliance should be WorkSafe s primary strategy rather than enforcement/prosecution. It is still highly relevant as an effective means of improving OHS performance and needs to remain a key feature of the C&E Policy. Question 2: How can the C&E policy be improved? WorkSafe regularly engages stakeholders in regards to some elements of the compliance and enforcement framework. However, whilst recognising the important role that key external stakeholders can play at improving OHS outcomes, to date, stakeholder engagement has generally been focused on informing stakeholders about the activities of WorkSafe as opposed to seeking stakeholders feedback in relation to decision making. One object of the OHS Act is to provide for the involvement of employees, employers, and organisations representing those persons in the process of deciding on the formulation and implementation of health and safety standards. The C&E Policy should explicitly give effect to this object and should emphasize engaging directly with key stakeholders, such as HIA, as a key principle. Question 3: How consistent is Victoria s C&E policy with the NC&E policy? The NC&E Policy was based largely on Victoria s C&E Policy and therefore there is a high degree of consistency. Question 4: Does the Victorian policy need to be more consistent with the national policy? No, the Victorian C&E policy should be focused on what is most appropriate for Victoria. 2.2 OHS COMPLIANCE AND ENFORCEMENT ACTIVITIES Question 5: How effectively is WorkSafe operating as a modern regulator? WorkSafe is generally considered to be effective at reducing injury claim targets and making workplaces safer. In response to a series of reviews, WorkSafe has implemented a number of recommendations which has improved its effectiveness as a modern regulator. However, HIA notes that recently there has been some fragmentation and confusion in WorkSafe s health and safety operations and strategic policy. Whilst structural processes now appear to be in place to address these issues, it should be noted that the effectiveness of a regulator is impacted where internal changes result in a loss of skills and knowledge. Question 6: Are there areas in which WorkSafe could improve its approach as a modern regulator? Yes, HIA as identified two areas for improvement. Firstly, WorkSafe must better understand the specific issues facing the housing construction sector. A tailored approach is essential to improving safety on residential construction sites and applying a one-size-fits- all approach or recommending generic safety solutions is at odds with the notion of a modern regulator. WorkSafe needs to move away from a tendency to apply to housing what is perceived as best practice in general (i.e., commercial ) construction. This has occurred with some codes and guidance material. Page 5 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria
Secondly, one of the attributes of a modern regulatory approach is to tailor compliance and enforcement to those being regulated. HIA submits that the specific needs of small business must be better addressed by WorkSafe. Question 7: Are there other regulatory approaches that the review should consider? Yes. HIA submits that WorkSafe must place less emphasis on formal regulation as the answer to improvements in compliance with OHS laws. Non-regulatory approaches, such as information and guidance are equally effective in improving safety outcomes. These should be developed in consultation with industry to address the specific needs of the housing sector. Question 8: How effective is WorkSafe in applying the levers to ensure OHS laws are complied with, enforced and communicated? It is HIA s view that WorkSafe has been effective in ensuring compliance but needs to improve communicating safety requirements and expectations for compliance in a practical manner. Question 9: Are there other approaches and/or levers that the review should consider? Before considering other approaches or levers WorkSafe should focus on optimising the approaches discussed above. 2.3 USE OF DATA AND INFORMATION TO DRIVE COMPLIANCE AND ENFORCEMENT ACTIVITIES Question 10: How effective is WorkSafe at using data and information to target its compliance and enforcement activities to the areas of most need and effect? WorkSafe tends to rely heavily on injury claims data to target its compliance and enforcement activities, but is not very effective at gathering data and information to determine the effectiveness of its interventions. This is an area that could provide practical learnings about what works, the barriers to compliance and the drivers that motivate duty holders. Worksafe could also better enable duty holders to learn from incidents and prosecutions by providing better information in relation to prosecution outcomes and safety alerts about what can be done to eliminate or reduce risks. Question 11: Are there other sources of data and information WorkSafe could use to inform its activities? See response to Question 10. 2.4 EFFECTIVE COMMUNICATION AND ENGAGEMENT WITH STAKEHOLDERS Question 12: How effectively does WorkSafe engage and involve stakeholders such as OHSAC? WorkSafe s communication and engagement with key stakeholders such as the SRG and its subgroups has been reasonable and welcomed by HIA. However, as detailed above, WorkSafe needs be more inclusive at involving key stakeholders in the decision-making process. Question 13: How can WorkSafe improve engagement with and involvement of stakeholders to drive compliance and enforcement activities? See response to Question 12. Page 6 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria
2.5 PRACTICAL AND CONSTRUCTIVE ADVICE AND INFORMATION Question 14: How effectively does WorkSafe provide advice and information to duty holders, consistent with the C&E policy? WorkSafe has been reasonably effective at communicating with most parties who have obligations under the OHS laws to help them understand the requirements. HIA welcomes the fact that WorkSafe recently developed a one stop housing webpage to assist the housing sector of the construction industry. Some of WorkSafe s communication of general OHS compliance requirements could be improved. The requirements of the OHS Act and OHS Regulations can be difficult to understand, particularly when deciding what is reasonably practicable for reducing risk, or where more than one duty-holder is involved. These are areas where more practical guidance is needed. Whilst WorkSafe has been reasonably proactive at developing guidance it is sometimes hard to find information on the website, and in some instances the information is poor or of little practical value. For example, finding whether or not a high risk work licence (HRWL) is required for operating a scissor lift is difficult for someone who may be unfamiliar with the material because WorkSafe s licencing webpage does not provide clear information. Firstly, it takes some skill to navigate to the webpage that lists the 29 licence classes. Once there, it is headed Certificate Classes to be transferred to a Licence to Perform High Risk Work, Old Style Certificate classes (issued up to 30 June 1995), which is confusing. Secondly, scissor lifts are not mentioned, but one of the HRWL classes listed is personnel and materials hoist, which someone could assume is what a scissor lift does and therefore requires a HRWL to operate. It takes some acumen and a review of the regulations to determine that a HRWL is not actually required. In this instance, more practical information could list the types of plant for which a HRWL is required and examples of the commonly used types or plant for which a HRWL is not required. Duty holders need clear, concise and practical compliance information that is easy to find and understand, otherwise they may not use appropriate control measures, or worse, ignore the requirements if these are hard to find or understand. Question 15: How can WorkSafe improve the way it conveys advice and information to duty holders? By updating existing guidance that is no longer accurate and by making hard copy publications widely available. WorkSafe needs to also be more proactive in regards to reaching sole traders, subcontractors, trades and suppliers to the housing construction sector by providing information and guidance that clearly address the most appropriate target audiences rather than providing generic guidance material. Question 16: How effectively does WorkSafe promote OHS awareness? WorkSafe has done a considerable amount of work at proactively promoting OHS awareness in construction. This has led to increased awareness in regards to high consequence hazards, but for low to moderate consequence hazards the effectiveness of this work is not evident. Question 17: Are there more effective approaches that should be considered? WorkSafe should continually aim to better understand what works well and the drivers that operate to achieve sustainable safety improvements. In the housing construction sector this should lead to better targeted OHS information that is relevant to builders, trades, subcontractors and suppliers that operate in this sector. Page 7 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria
2.6 FOSTERING COOPERATIVE, CONSULTATIVE RELATIONSHIPS Question 18: How effectively does WorkSafe provide support to workplace parties? WorkSafe has been reasonably effective at providing support to workplace parties. Question 19: How can WorkSafe improve the way it provides support to workplace parties? The incident notification area should be improved to more proactively assist duty-holders. For example, by letting callers know that a reference number is available whenever an incident is notified and whenever an enquiry is made about whether an incident is notifiable or not. There is also a need to clearly advise duty holders about the process that Worksafe will follow in regards to the incident and whether or not an inspector will attend the site and when they will attend. Importantly WorkSafe should not leave duty-holders to preserve an incident site indefinitely. 2.7 INSPECTORATE ACTIVITY Question 20: Is WorkSafe s inspectorate effective in detecting breaches of OHS laws and ensuring compliance with those laws? Every year, WorkSafe inspectors carry out a significant number of inspector visits to construction sites. HIA understands that approximately 9,500 are planned for 2016-17. WorkSafe also conduct a range of strategic projects in construction, such as blitzes, focused campaigns and education campaigns. During these visits, the inspectorate is considered to be very effective in detecting breaches of OHS laws and ensuring compliance with those laws. Question 21: How can WorkSafe s approach to inspections be improved? When inspectors find breaches of OHS laws they should endeavour to constructively engage with duty-holders to better understand the barriers may operate in that particular workplace to achieving sustainable improvement. HIA would emphasise that this is the preferred approached as opposed to the issuing of improvements notices. Strategic interventions such as focused campaigns would be more constructive and effective if they include pre-campaign education activities with compliance information, checklists etc. Question 22: Are there other approaches to enforcement that the review should consider? Worksafe should encourage greater use of alternatives to prosecution, such as enforceable undertakings that are designed to achieve sustainable improvement in OHS management. 2.8 ENFORCEMENT MEASURES Question 23: How effective is WorkSafe in applying enforcement measures to deter non-compliance with Victoria s OHS laws? More effective than most other Victorian agencies with a regulatory role. Question 24: How effective is WorkSafe at promoting its enforcement outcomes for prevention purposes? Worksafe publishes prosecution result summaries which are somewhat effective at promoting its enforcement outcomes for prevention purposes. However as detailed earlier, more could be achieved by providing better, more practical information about the results of prosecutions specifically what can be learnt from those cases about how to eliminate or reduce risks. Page 8 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria
Question 25: How can WorkSafe s strategic approach to enforcement measures be improved? By incorporating a strong evaluation component in strategic enforcement activities. A key principle in the design of strategic enforcement activities should be to define the outcomes for the intervention and how success will be measured. Program Logics developed a few years ago included this but appear to have been abandoned. Question 26: Are there any impediments to WorkSafe applying its enforcement measures? Generally a lack of resources will impede WorkSafe applying its enforcement measures. 2.9 WORKING WITH OTHER AGENCIES Question 27: How can WorkSafe s approach to working with other agencies be improved? HIA recognises that WorkSafe needs to work with and cooperate with other agencies where there is some jurisdictional overlap involving occupational health and safety matters. For example, carrying out joint activities with SafeWork NSW along border towns, or working with Energysafe Victoria in relation to matters involving electrical and gas safety. However, WorkSafe should refrain from carrying such activities in cases where the nature of perceived jurisdictional overlap does not directly involve joint responsibility over OH&S matters, or where this is not clear. It would be of particular concern to HIA if WorkSafe s powers of entry were to be used to facilitate an inspection by another agency, whether jointly or otherwise, as appears to be the case in the WorkSafe s recent decision to conduct joint building inspections with the VBA. 2.10 CURRENT AND FUTURE CHALLENGES Question 28: Are there other future challenges that will affect WorkSafe s ability to ensure that OHS laws are complied with, enforced and communicated? HIA submits that a cautious approach must be taken when considering non-standard work and the approach of WorkSafe to such arrangements. In the residential construction industry, contracting is a legitimate form of engagement; it is well known that one of the overarching characteristic of the residential construction, in particular the detached housing and renovation markets is the prevalence on the use of independent contractors. HIA submits that this type of contracting is not non-standard work and notes that WorkSafe enforces compliance by independent contractors as duty holders on construction sites. In HIA s view WorkSafe should focus on: The aging workforce. This is becoming an increasingly prevalent characteristic of the residential construction industry; and The use of unskilled and overseas labour. Skill shortages in the residential construction industry are leading to the use of unskilled and overseas labour that may not have any proficiency in OHS laws and their obligations in relation to safety on site. Education of these groups must be a focus of WorkSafe. Page 9 of 9 Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria