Comcare's regulatory approach
Further Information
The WHS legislation changes Comcare’s focus from purely reactive investigations to more proactive preventative inspection related activities.
This is reflected in the change from a purely reactive compliance model to a more proactive preventative model. Comcare has also embarked on a proactive program of cooperatively engaging with PCBU's and workers and their representatives such as HSRs. Cooperative compliance programs have been, and are being, put into place across the country. These include PCBU's, other regulators and other stakeholders such as unions.
Comcare’s regulation policy details our current compliance strategy and establishes a pathway for integration to the WHS Laws.
Education, compliance and enforcement measures
Comcare applies a range of information, education, advice and assistance to encourage better practice through partnerships and collaboration with workers and employers in the jurisdiction. If a duty holder is found to be not complying with duties and obligations, a range of enforcement options are available under the WHS Act and others options that have been endorsed by Comcare.
A combination of better practice, compliance and enforcement measures may be applied that are appropriate to the circumstances.
Better practice and compliance measures
Comcare assists employers and workers in our jurisdiction to meet their legislative responsibilities and strive for better practice in safe and healthy workplaces. This involves Comcare working collaboratively with employers and workers in the jurisdiction by:
- providing information and advice on better practice in health and safety at work
- promoting development of culture and systems that support worker health, wellbeing and resilience
- assist and support in the rehabilitation and compensation of injured workers
- partnering with stakeholders, industry and social partners, and across government on initiatives to improve the health of workers
Better practice and collaboration principles
The elements of Comcare’s regulatory approach applied through better practice and collaboration are underpinned by the following principles:
1. Leadership commitment—Organisations need engagement and commitment from their leaders to develop and continuously improve safety and rehabilitation management culture and systems. Partner engagement at the leadership level is a key element of our approach
2. Systems-based approach—WHS, rehabilitation and compensation management systems provide a framework within which the employer is able to meet their legal responsibilities and achieve sustainable and continuous improvement in WHS, injury management and rehabilitation outcomes.
Effective organisational approaches require a combination of primary, secondary and tertiary level interventions:
- A primary intervention is the undertaking of prevention measures by employers to address hazards in the workplace through risk identification, assessment and control.
- Secondary intervention is prevention that aims to reduce the severity of consequences of hazards and harm including responding to early indicators such as near misses, incident reports or absenteeism.
- Secondary intervention also provides a “safety net” to catch people who are showing early warning signs of illness or injury so that early rehabilitation intervention and support can be provided before symptoms develop into illness.
- Tertiary interventions deal with the consequence of injury, in particular effective rehabilitation strategies.
3. Effective and regular consultation—Interactions with our partners are open.
We facilitate information exchange and feedback to enable more effective regulatory approaches to current and emerging challenges. We also work in partnership with a range of representative bodies, including employer organisations, unions, service providers, inter-jurisdictional bodies and legal advisors to achieve healthier and safer workplaces.
4. Evidence-based approaches—Facts, evidence and analysis are fundamental to how we assist employers and employees to improve workplace safety and the rehabilitation of injured employees. Development of advice, products and solutions is linked to research on better practice.
5. Incentives—that workers are at the centre of what we do to ensure that they return safely to their families, friends and communities everyday.
Inspections
Inspection activities are undertaken collaboratively with PCBU's, workers and worker representatives to invest in better work health and safety outcomes. They will become a valuable and essential element for how inspectors work collaboratively and in the prevention arena with PCBUs and workers under the WHS Act.
The aim of inspections is to assess the extent of compliance by duty holders and to provide support and information to enable compliance. Inspections are a feature of both planned (targeted) work and may also be triggered by an incident or complaint. Inspections are focussed on achieving a safety outcome, reducing non-compliance and encouraging continuous improvement.
Inspections may include compliance audits or other co-operative compliance monitoring activities. Where an inspection is initiated in response to an incident or a pattern of incidents, a preliminary investigation may be conducted to determine:
- the causes of an incident,
- assess compliance with the WHS Act and regulations, and
- determine appropriate remedial action.
If necessary, an Inspector may direct that an incident scene be left undisturbed prior to attending the workplace.
Under the previous OHS Act, an investigator would only conduct an inspection of a workplace with the consent of the employer. Under the WHS Act an inspector may enter a workplace at any time to undertake inspections.
If an inspection reveals a contravention of the WHS Act or regulations, the following action may be taken:
- seek immediate voluntary compliance and issue an inspection report
- commence an investigation and issue an improvement notice (which requires the contravention to be remedied by the duty holder by a certain date)
- commence an investigation and issue a prohibition notice (where there is an immediate risk and the activity must stop until the risk is removed)
- initiate a serious investigation in accordance with Comcare’s escalating model and pursue enforcement action.
What triggers an investigation or inspection?
Comcare exercises discretion in deciding whether to intervene in patterns of behaviour, incidents, cases of ill health, or complaints. There are two types of discretionary responses to incidents which require immediate regulatory examination:
1. In a small number of cases, serious investigations are initiated for those events likely to involve more egregious levels of non-compliance with the WHS Act. For example, workplace incidents resulting in death or serious injury, and reckless or intentional conduct that gave rise to a high risk incident.
2. The majority of our responses are initiated as inspections which encompass activities including education, compliance assistance and compliance monitoring activities. Inspections are focused on achieving a safety outcome and reducing accidental non-compliance. This type of intervention may be incident based or conducted in response to a pattern of incidents. Inspection activities are undertaken collaboratively with employers, workers and employee representatives to invest in better work health and safety outcomes. Under our escalating model, some cases may require use of investigator powers to enforce the appropriate levels of compliance.