Performance benchmarking of Australian business regulation: Occupational health and safety

• This study compares inter-jurisdictional differences in occupational health and safety (OHS) legislation in 2008-09 and its administration and enforcement and the costs they imposed on business. Such benchmarking provides information which can support current moves to establish a consistent regulatory approach to OHS across all jurisdictions.
• Generally, OHS performance has been improving. National injury incidence rates have fallen almost 20 per cent between 2002-03 and 2007-08.
• The core OHS Acts of all jurisdictions are all based on the principle of allocating duties of care to those most able to influence OHS outcomes and yet the Acts differ.
• In addition, there are 70 industry or hazard-specific Acts which regulate OHS in some way. For states with separate mining regulations (New South Wales, Queensland, Western Australia) compliance burdens on large mining companies are greater in Western Australia which makes limited use of performance and process-based regulation.
• The burdens from jurisdictional differences in OHS regulation fall most heavily on businesses which operate in more than one state or territory.
• Among regulations aimed at improving the culture of compliance, different requirements across jurisdictions for record keeping, training, and worker participation and representation result in differences in the burdens imposed on business.
• Among regulations aimed at managing particular hazards, the different requirements across the jurisdictions with regard to asbestos, manual handling and falls result in differences in the burdens imposed on business.
• Given the costs they impose, all jurisdictions give relatively less attention to psychosocial hazards than to physical hazards. All jurisdictions provide guidance material on various aspects of psychosocial health. Victoria and New South Wales provide harmonised guidance on bullying and on fatigue. Only Queensland and Western Australia provide a code of practice on bullying. Western Australia and South Australia are the only jurisdictions to have a code of practice on working hours, while Western Australia is the only jurisdiction to have a code that addresses occupational violence. Victoria and New South Wales pursue bullying the most vigorously in the courts.
• Australian OHS regulators commonly use a cooperative, graduated approach to achieve compliance. They apply a risk-based approach to enforcement and generally seek to minimise adverse side effects on business.
• There are significant differences among OHS regulators in: their level of resources; funding sources; availability and application of enforcement tools; appeal mechanisms; and transparency.

Benchmarking Occupational Health and Safety Regulation

A report released by the Productivity Commission - Performance Benchmarking of Australian Business Regulation: Occupational Health and Safety - has identified significant differences in regulation and in the actions of regulators across the jurisdictions that are hard to justify.

While OHS regulation plays an important role in promoting safe work practices, excessive regulation can have adverse consequences for productivity and costs for consumers.

The report was requested by COAG, as part of the commitment by all governments to remove unnecessary compliance costs, enhance regulatory consistency and reduce regulatory duplication and overlap. The study has been undertaken while governments have been making progress towards a national OHS Act, which should introduce nationally consistent core legislative provisions.

Commissioner David Kalisch said: 'The report should provide governments and the Workplace Relations Ministers Council with further opportunities to reduce the regulatory burden on business through greater harmonisation of the next layers of regulation, such as national codes and guidance material for business. The report also highlights many ways to improve the practices of government regulators across Australia.'

Areas where the report identified significant differences in 2008-09, include:

• record keeping for risk management, training, incidents and a range of particular hazards
• worker consultation, participation and representation, including union involvement in OHS consultations and investigations of possible OHS breaches
• dealing with a range of workplaces hazards including asbestos, 'psychosocial hazards', prevention of falls, manual handling and licences for high risk work
• the resourcing, availability of enforcement tools and key strategies of the regulators.

• Preliminaries
  • Cover, Copyright, Foreword, Terms of reference, Disclosure of interest, Contents, Abbreviations, and Glossary
• Overview - including key points
• Chapter 1 About the study
  • 1.1 Origins of this study
  • 1.2 Harmonisation of OHS regulation already underway
  • 1.3 Purpose and scope of the study
  • 1.4 Conduct of the study
  • 1.5 Report outline
• Chapter 2 Regulatory framework and objectives
  • 2.1 How is OHS regulated in Australia?
  • 2.2 The OHS acts and their objectives
  • 2.3 Key provisions under the OHS Acts
  • 2.4 OHS Regulations
  • 2.5 National standards, codes of practice and guidance notes
  • 2.6 OHS Regulators
• Chapter 3 Outcomes of OHS
  • 3.1 Work-related injury and illness
  • 3.2 A snapshot of OHS outcomes data
  • 3.3 OHS outcomes over time
  • 3.4 Outcomes and regulation
• Chapter 4 Approach to benchmarking OHS regulation
  • 4.1 What is benchmarking?
  • 4.2 Insights from international benchmarking studies
  • 4.3 What can be benchmarked?
  • 4.4 Main complaints raised
  • 4.5 Criteria for selecting areas to benchmark
• Chapter 5 Regulator characteristics and enforcement practices
  • 5.1 Role of a regulator
  • 5.2 Methodology
  • 5.3 OHS regulators in Australia
  • 5.4 Regulator resourcing
  • 5.5 Enforcing OHS regulations
  • 5.6 Encouraging business compliance
• Chapter 6 Accountability of regulators
  • 6.1 Appeal provisions — core OHS regulators
  • 6.2 Transparency
  • 6.3 Providing and seeking feedback
  • 6.4 Transparency and accountability of mining-specific OHS regulators
• Chapter 7 Risk, duty of care and advice
  • 7.1 Awareness of regulatory requirements
  • 7.2 Risk management and record keeping
  • 7.3 Duty of care
  • 7.4 Duty to be informed on OHS matters
  • 7.5 Direct liability
• Chapter 8 OHS training requirements
  • 8.1 Regulatory provisions for OHS training
  • 8.2 Costs faced by SMEs operating in multiple jurisdictions
  • 8.3 Use of OHS Training by SMEs
  • 8.4 Costs associated with internal and external OHS training
  • 8.5 Industry example of OHS training — requirement for construction safety awareness training
• Chapter 9 Worker consultation, participation and representation
  • 9.1 Health and safety representatives
  • 9.2 Health and safety committees
  • 9.3 The overall costs of HSR and HSC requirements
  • 9.4 Trade union involvement in the workplace on OHS matters
• Chapter 10 Regulating hazardous substances
  • 10.1 Take up of national standards and codes of practice
  • 10.2 Material Safety Data Sheets — case study
  • 10.3 Hazardous substances — duplication with dangerous goodsregulation
  • 10.4 Regulating occupational health and safety concerns relating to asbestos
• Chapter 11 Psychosocial hazards
  • 11.1 Work-related stress
  • 11.2 Jurisdictional approaches to regulating psychosocial hazards
  • 11.3 How do jurisdictions enforce their requirements for psychosocial hazards?
• Chapter 12 Other hazards and activities
  • 12.1 Prevention of falls
  • 12.2 Manual Handling
  • 12.3 Licensing for high risk work
• Chapter 13 Duplication
  • 13.1 The costs associated with differences in OHS regulations
  • 13.2 Comcare and state and territory OHS regimes
  • 13.3 Interactions between general OHS and industry specific OHS Acts: mining
  • 13.4 Other differences in mining OHS regulatory regimes
• Chapter 14 Comments from jurisdictions
• Appendix A Conduct of the benchmarking study
• Appendix B Approach to gathering information
• Appendix C Workers' compensation premiums
• Appendix D Reporting requirements compiled by a leading national retailer
• Appendix E Claims for Mental Stress
• References