A responsive sanction to promote systematic compliance? Enforceable undertakings in occupational health and safety regulation

This article examines the use of enforceable undertakings in Australian occupational health and safety (OHS) regulation. Enforceable undertakings are promises by persons alleged to have breached their regulatory obligations to do something, which if not done, is enforceable in court. Enforceable undertakings potentially have an important responsive and restorative role to play in a regulatory enforcement strategy to ensure compliance with OHS statutes, and have been used in other areas of business regulation, including trade practices, financial, prudential, consumer, civil aviation, environmental and communications and media regulation. The article then reports on a study of the operation of enforceable undertakings in Queensland to enforce compliance with OHS obligations. We conclude that this early experience of enforceable undertakings in Queensland provides useful guidance as to how the enforceable undertaking provisions might best be implemented elsewhere, and preliminary evidence of the complexities of their likely effectiveness in OHS regulation.

Outsourcing risk -the regulation of occupational health and safety where subcontractors are employed

The subcontracting out of production tasks and services is not a new phenomenon, but from the late 1970s, and more especially over the last 15years, the practice-now frequently referred to as outsourcing-has grown substantially across a range of industries in most industrialized countries.Recent surveys undertaken in the United States,Europe,and Australia have all identified a rapid increase in outsourcing/subcontracting, especially amongst large private and public sector organizations. The Second Australian Workplace Industrial Relations Survey found that the number of contractors, agency workers, outworkers, and volunteers had increased by almost 40% in the last 5 years to 1997 with contracting out more common in the public sector than the private sector. Outsourcing has become a major tool by which large organizations have sought to increase competitiveness/cut costs, bypass regulatory controls, and secure more flexible employment arrangements.

The OHS regulatory challenges posed by agency workers: evidence from Australia

The purpose of this research is to analyse the problems for occupational health and safety (OHS)regulators posed by agency work/leased labour (also known as labour hire in Australasia), using Australian evidence. The analysis is based on an examination of prosecutions involving labour hire firms along with other documentary records (union, industry and government reports and guidance material). The study also draws on interviews with approximately 200 regulatory officials, employers and union representatives since 2001 and workplace visits with 40 OHS inspectors in 2004‐2005.The triangular relationship entailed in labour leasing, in combination with the temporary nature of most placements, poses serious problems for government agencies in terms of enforcing OHS standards notwithstanding a growing number of successful prosecutions for breaches of legislative duties by host and labour leasing firms. Research to investigate these issues in other countries and compare findings with those for Australia is required, along with assessing the effectiveness of new enforcement initiatives. The paper assesses existing regulatory responses and highlights the need for new regulatory strategies to combat the problems posed by labour. The OHS problems posed by agency work have received comparatively little attention. The paper provides insights into the specific problems posed for OHS regulators and how inspectorates are trying to address them.

OHS inspectors and psychosocial risk factors: Evidence from Australia

Legislation giving prominence to psychosocial risk factors at work has changed the role of government occupational health and safety (OHS) inspectors in many countries. Yet little is known about how inspectorates have responded to these changes. Between 2003 and 2007 an Australian study was undertaken on OHS standards, entailing detailed documentary analysis, interviews with 36 inspectorate managers and 89 inspectors, and observations made when researchers accompanied inspectors on 120 typical workplace visits. Our study found that general duty provisions in OHS legislation clearly incorporated psychosocial hazards and inspectorates had introduced guidance material, pursued campaigns and increased interventions in this area. However, the regulatory framework remained narrow (focused on bullying/harassment, occupational violence and work stress) and workplace visits revealed psychosocial hazards as a marginal area of inspectorate activity. These findings were reinforced in interviews. While aware of psychosocial hazards inspectors often saw the issue as problematic due to limited training, resourcing constraints, deficiencies in regulation and fears of victimisation amongst workers. In order to address these problems a number of changes are required that recognize the distinctiveness of psychosocial hazards including their ‘invisibility’. Notable here are revisions to regulation (both general duty provisions and specific codes), the development of comprehensive guidance and assessment tools to be used by inspectors, greater use of procedural enforcement, and enhanced inspectorate resourcing and training. There is also a need to recognize complex inter-linkages between psychosocial hazards and the industrial relations context.

Statutory occupational health and safety workplace arrangements for the modern labour market

Over the past 20 years there has been a significant refashioning of the labour market within Australia and other industrialised countries. This paper examines the implications of the growth of more flexible work arrangements for mechanisms designed to facilitate worker involvement in occupational health and safety at the workplace—a pivotal feature of post-Robens OHS legislation in Australia. It is argued that the growth of subcontracting, casual and home-based work has undermined both coverage and the effectiveness of these provisions, especially in a context where union membership and influence has also been declining. Looking at international experience, the paper examines a number of ways of remedying these deficiencies.

Take me to your employer: the organisational reach of occupational health and safety regulation

[Conclusion] We have explored two dimensions of the Australian OHS statutes which enable statutory OHS duties to reach more than one employer or self-employed person within a corporate group or network. First, most of the OHS statutes contain provisions extending the reach of employer’s duty beyond the employer’s employees. One legislative technique is to deem contractors and their employees to be employees of the principal contractor. Another imposes duties on employers and self-employed persons to persons who are not employees, so that employers and self-employed persons can be responsible for the OHS of firms, and those they engage, lower in the contractual chain. These duties are non-delegable, meaning that the principal contractor cannot seek to delegate OHS duties to firms lower in the contractual chain. Second, new Victorian ‘shadow officer’ provisions can be applied to remove difficulties and doubt as to the liability of partners in a partnership, officers of unincorporated associations, joint venturers, and holding and subsidiary companies within corporate groups. While the provisions can be argued simply to confirm that a partner who fails to take reasonable care in relation to OHS will be guilty of an offence, we demonstrate that there are very real benefits to having ‘shadow officer’ provisions which remove uncertainties about the liability of unincorporated associations, joint ventures and corporate groups. Perhaps most significantly, the Victorian corporate officer provisions have the potential to extend liability to individuals and other entities within organisational structures, where those individuals and entities make or participate in making decisions that affect the whole or a substantial part of the organisation’s business, and are responsible for an OHS offence having been committed, due to their failure to take reasonable care. We suggest that similar provisions should be included in all OHS statutes, to overcome at least some of the barriers limiting group responsibility for OHS statutory duties.

Supply chain regulation to protect the occupational health and safety of vulnerable workers

The last two decades have witnessed a fragmentation of previously integrated systems of production and service delivery with the advent of boundary-less, networked and porous organisational forms. This trend has been associated with the growth of outsourcing and increased use of contingent workers. One consequence of these changes is the development of production/service delivery systems based on complex national and international networks of multi-tiered subcontracting increasingly labelled as supply chains. A growing body of research indicates that subcontracting and contingent work arrangements affect design and decision-making processes in ways that can seriously undermine occupational health and safety (OHS). Elaborate supply chains also present a regulatory challenge because legal responsibility for OHS is diffused amongst a wider array of parties, targeting key decision-makers is more difficult, and government agencies encounter greater logistical difficulties trying to safeguard contingent workers. In a number of industries these problems have prompted new forms of regulatory intervention, including mechanisms for sheeting legal responsibility to the top of supply chains, contractual tracking devices and increasing industry, union and community involvement in enforcement. After describing the problems just alluded to this paper examines recent efforts to regulate supply chains to safeguard OHS in the United Kingdom and Australia.

Australian health and safety inspectors’ perceptions and actions in relation to changed work arrangements

Extensive international research points to an association between changed work arrangements, especially those commonly labelled as contingent work, with adverse occupational health and safety (OHS) outcomes. Research also indicates these work arrangements have weakened or bypassed existing OHS and workers’ compensation regulatory regimes. However, there has been little if any research into how OHS inspectors perceive these issues and how they address them during workplace visits or investigations. Between 2003 and 2007 research was undertaken that entailed detailed documentary and statistical analysis, extended interviews with 170 regulatory managers and inspectors, and observational data collected while accompanying inspectors on 118 ‘typical’ workplace visits. Key findings are that inspectors responsible for a range of industries see altered work arrangements as a serious challenge, especially labour hire (agency work) and subcontracting. Though the law imposes clear obligations, inspectors identified misunderstanding/blameshifting and poor compliance amongst parties to these arrangements. The complexity of these work arrangements also posed logistical challenges to inspectorates.

Disability Standards For Education 2005 (Cth): sword or shield for Australian students with disability?

This article explains the scope and effect of the Disability Standards for Education 2005 (Cth) (the ‘Standards’) and considers whether they operate as a legislative sword or shield in respect of the battle to protect the education rights of people with disabilities in Australia. Evidence suggests that the Standards would be a more effective weapon if there were greater understanding of how they oblige education providers to make reasonable adjustments to their policies and practices to support access for and participation by students with disabilities.

Volunteering and recent governance reforms

The regulatory reforms touching volunteer governs over the last 25 years are identified and analysed. BOth direct reforms such as the Australian Charities and Not-for-profits Commission's (ACNC) governance standards and society--wide indirect reforms to workplace health and safety, civil liability and deemed liability provisions are discussed in this chapter.

Review of the ACT Road Ready and Road Ready Plus Novice Driver Road Safety Education Course Material

This report documents research that was commissioned in order to review the materials used in the Road Ready program for relevancy and acceptability to the target audiences as part of the implementation of the ACT Road Safety Strategy Action Plan. Relevant literature on young driver crash risk and best practice principles in driver education was reviewed as a first step (Section 2). The evidence for effectiveness of driver education programs in Australia was summarised (Section 3) and a separate review of the use of incentives in relation to driver education was performed. The brief called for an expert review of the materials and delivery design for both the Road Ready and Road Ready Plus programs. This is reported in Section 5, along with the overall recommendations for program improvement. More specific comments on individual modules in the Road Ready program are listed at the end of Section 5. Lastly, feedback from stakeholders, specifically the facilitators and teachers of the programs, as well as former students who have completed the Road Ready program, was sought. Interviews and surveys were conducted with these groups. Summaries of the methods and findings are contained in Section 6.

SHM through flexible vibration sensing technologies and robust safety evaluation paradigm

This research has successfully developed a novel synthetic structural health monitoring system model that is cost-effective and flexible in sensing and data acquisition; and robust in the structural safety evaluation aspect for the purpose of long-term and frequent monitoring of large-scale civil infrastructure during their service lives. Not only did it establish a real-world structural monitoring test-bed right at the heart of QUT Gardens Point Campus but it can also facilitate reliable and prompt protection for any built infrastructure system as well as the user community involved.

Building the safety case for UAS operations in support of natural disaster response

A framework supporting the systematic development of safety cases for Unmanned Aircraft System (UAS) operations in a broad range of civil and commercial applications is presented. The case study application is the use of UAS for disaster response. In those States where regulations do not preclude UAS operations altogether, approvals for UAS operations can be granted on a case-by-case basis contingent on the provision of a safety case acceptable to the relevant National Airworthiness Authority (NAA). A safety case for UAS operations must show how the risks associated with the hazards have been managed to an acceptable level. The foundational components necessary for structuring and assessing these safety cases have not yet been proposed. Barrier-bow-tie models are used in this paper to structure the safety case for the two primary hazards of 1) a ground impact, and 2) a Mid-Air Collision (MAC). The models establish the set of Risk Control Variables (RCVs) available to reduce the risk. For the ground-impact risk model, seven RCVs are identified which in combination govern the probability of an accident. Similarly, ten RCVs are identified within the MAC model. The effectiveness of the RCVs and how they can implemented in terms of processes, policies, devices, practices, or other actions for each of the case-study applications are discussed. The framework presented can provide for the more systematic and consistent regulation of UAS through a "safety target" approach.

Applying the Haddon Matrix in the context of work-related road safety

The Haddon Matrix was developed in the 1960s road safety arena, and has since been used in many public health settings. The literature and two specific case studies are reviewed to describe the background to the Haddon Matrix, identify how it has been critiqued and developed over time and practical applications in the work-related road safety context. Haddon’s original focus on the road, vehicle and driver has been extended and applied to include organisational safety culture, journey management and wider issues in society that affect occupational drivers and the communities in which they work. The paper shows that the Haddon Matrix has been applied in many projects and contexts. Practical work-related road safety applications include providing a comprehensive systems-based safety management framework to inform strategy. It has also been used to structure the review or gap analysis of current programs and processes, identify and develop prevention measures and as a tool for effective post-event investigations.

Clinical perceptions of radiation therapy undergraduate competency standards

Introduction The multifactorial nature of clinical skills development makes assessment of undergraduate radiation therapist competence level by clinical mentors challenging. A recent overhaul of the clinical assessment strategy at Queensland University of Technology has moved away from the high-stakes Observed Structured Clinical Examination (OSCE) to encompass a more continuous measure of competence. This quantitative study aimed to gather stakeholder evidence to inform development of standards by which to measure student competence for a range of levels of progression. Methods A simple anonymous questionnaire was distributed to all Queensland radiation therapists. The tool asked respondents to assign different levels of competency with a range of clinical tasks to different levels of student. All data were anonymous and was combined for analysis using Microsoft Excel. Results Feedback indicated good agreement with tasks that specified amount of direction required and this has been incorporated into the new clinical achievements record that the students need to have signed off. Additional puzzling findings suggested higher expectations with planning tasks than with treatment-based tasks. Conclusion The findings suggest that the amount of direction required by students is a valid indicator of their level and has been adopted into the clinical assessment scheme. Further work will build on this to further define standards of competency for undergraduates.