From fiction to fact - rethinking OHS enforcement

Abstract

In the past quarter of a century there has been a significant evolution in the style and form of occupational health and safety (OHS) regulation in Europe, North America, and Australia with most jurisdictions moving from a prescriptive ‘command-and-control’ style of regulation, to more flexible, ‘self-regulatory’, models using less direct means to achieve broad OHS goals (see Gunningham and Bluff, 2003). While OHS standard setting in Australia has changed over the past 20 years, and quite dramatically over the past ten or so years, changes in OHS enforcement have lagged behind. OHS inspection and enforcement is still biased towards ‘traditional’ hazards, such as plant and falls, enforcement is still dominated by advice and persuasion strategies, and prosecutions still largely brought in response to serious injuries and fatalities. The central argument in this paper is that OHS statutes should be strongly enforced, but in a way that both responds (i) sensitively to the major thrust of the modern approach to standard setting, namely that organizations must learn to adopt systematic approaches to OHS management, and should get credit for doing so, and (ii) decisively to detected high risk situations. After outlining the complexities of compliance with modern OHS provisions, the paper places OHS enforcement in its historical context, and shows how the Robens Report partly entrenched the historical approach to OHS enforcement, while highlighting the importance of self-regulation and targeted inspection and self-inspection. The paper then summarises the evidence on the effectiveness of deterrence as an enforcement strategy, and critically evaluates the now well-accepted framework for responsive enforcement. It examines examples of targeted inspection, self-audit and issues involved in inspecting OHS management (OHSM). It concludes with an analysis of the key enforcement methods – improvement and prohibition notices, infringement notices, enforceable undertakings, and prosecution.