Comcare - Australian Goverment
Comcare - Australian Goverment
Putting you first at the centre of what we do. Keeping you healthy and safe at work. Supporting you when you are harmed at work. Ensuring your scheme works and is sustainable.
Listen to this page using ReadSpeaker

Escalation

Regulatory strategies may need to escalate if they do not achieve the desired outcome, or are otherwise not appropriate given the circumstances. One mechanism for escalation and monitoring compliance with the OHS Act is through conducting an investigation.

Decision to intervene

Information about safety events received by Comcare will be assessed to determine the appropriate regulatory response.

Comcare may respond by liaising, educating, inspecting, auditing or investigating.

When deciding on the type of intervention and escalating the regulatory approach, Comcare will take into account a number of factors, including:

  • the severity and scale of potential or actual harm - this includes consideration of the risk to safety and the practicality of achieving results
  • available intelligence including the duty holders compliance history
  • other considerations such as Comcare priorities and campaigns, significant community concern or emerging issues.

In circumstances where the activities of a person or an employer are outside of Comcare's jurisdiction, Comcare works closely with the relevant state or territory workplace health and safety authority and other regulatory agencies.

In responding to a safety event where there is potentially overlapping jurisdiction, Comcare will provide information to other regulators to ensure that appropriate action may be taken in relation to all duty holders.

For further information about compliance strategies including audits, refer to schedule 1 to this policy.

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 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.

The Act does require that an investigation be conducted:

  • where an employer disputes a Provisional Improvement Notice (PIN) issued by a health and safety representative (HSR)
  • following a request from a HSR for investigation or an investigation of a PIN that has not been complied with
  • following a dispute between a supervisor and a HSR about whether sufficient action has been taken to remove an immediate threat to health and safety.(5)

Once an investigation is commenced, a range of statutory enforcement tools become available to an investigator. Consistent with the OHS Act and the National Policy, investigations are undertaken in order to determine:

  • compliance with the OHS Act and Regulations
  • the facts or causes of an accident or dangerous occurrence
  • whether action has been taken or needs to be taken to prevent a recurrence and to secure compliance with the Act
  • lessons to be learnt and to influence the law and guidance
  • what response is appropriate to an alleged breach of the OHS Act or Regulations.(6)

To maintain a proportionate response, most resources available to investigate incidents are devoted to more serious circumstances.

Comcare will generally carry out an investigation of a notifiable work-related death, unless there are appropriate reasons for not doing so.

Escalation of Enforcement Action

Where an investigation reveals evidence of non-compliance, enforcement action may graduate from a notice issued by an investigator through to civil proceedings or a criminal prosecution.

In assessing the need for escalation of enforcement action, Comcare has regard to the following priority areas:

  • work-related fatalities and serious injuries or where there is a risk of such consequences
  • non-compliance with notices or directions
  • offences against investigators
  • offences against persons exercising OHS responsibilities at the workplace (e.g. health and safety representatives, workplace health and safety officers, union officers or other persons authorised under the legislation)
  • discrimination against employees on the basis of their OHS activities
  • failure to notify incidents.(7)

All Comcare investigators are appointed under the OHS Act and have extensive powers, including to issue statutory notices, and to compel the provision of information and evidence. For further information about the statutory enforcement options available to investigators refer to schedule 2.

What principles are applied when enforcing the OHS Act?

Most enforcement activity is undertaken by investigators who adopt a flexible and responsive approach in accordance with the Act. In considering a response to an alleged contravention of the OHS Act or Regulations, investigators will have regard to the principles outlined in this policy where appropriate to do so.

Decisions about appropriate enforcement measures occur at various stages of an investigation. Not all of the principles outlined below may be relevant. For example, where there is an immediate threat to the health and safety of a person, a Prohibition Notice may be issued without regard to all of the principles.

In deciding whether, and to what extent, enforcement action is warranted, Comcare applies objective policy considerations to foster consistency and proportionality. These considerations are outlined in the National Policy(8) and supplemented below, taking into account the particular legislative and administrative framework within which Comcare operates.

Adverse effect

This involves a consideration of the facts, whether it was foreseeable that harm could be caused and the practicability of avoiding the actual or potential harm.

A systematic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision.

It is also relevant to consider:

  • the extent of the risk
  • the seriousness of the breach
  • the actual or potential consequences.

The gravity of the consequences of an incident does not itself dictate the seriousness. However, the occurrence of death or serious injury may manifest the degree of the seriousness of the safety breach.

The objective seriousness of the risk, breach and actual or potential consequences, without more, may call for the most serious enforcement action to meet reasonable community expectations, encourage future compliance with the OHS Act and deter non-compliance.

Culpability

Culpability involves a consideration of how far below acceptable standards the conduct has fallen. It may be relevant to consider whether the duty holder had a licence or permission to undertake particular activities. It might also be relevant to consider industry codes of practice. Comcare may rely on expert evidence in making an assessment of the culpability of each duty holder.

Compliance history and attitude

This involves consideration of any previous findings of non-compliance made against a duty holder and may involve an analysis of relevant incident data. Regard may also be had to the duty holders cooperation during the investigation.

Likelihood of any breach being repeated

This involves consideration of a duty holders approach to managing OHS, the steps taken to prevent risk of injury and any alleged failure to comply with a statutory notice issued by an investigator.

Impact of enforcement on encouragement or deterrence

The objects and terms of the OHS Act make it clear that general deterrence and specific deterrence are relevant considerations.(9) Employers are required to take all reasonably practicable steps to ensure safety in the workplace and should adopt an approach to safety which is proactive and not merely reactive. In many cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by duty holders in the future. This is particularly so where an employer conducts a large enterprise which involves inherent risks to safety.

Any mitigating or aggravating circumstances

It is a significant aggravating factor if the risk of injury was foreseeable, even if the precise cause or circumstances of exposure to the risk were not foreseeable. The situation may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response is not taken by the duty holder. The neglect of simple, well-known precautions to deal with an evident and great risk of injury take a matter towards the worst case category.

Comcare will also consider any mitigating circumstances including the extent of effort a duty holder has expended in controlling risks.

Whether the risk to health and safety is imminent or immediate

If there is a risk to health and safety, the situation will be assessed by an investigator to determine whether, in the first instance, it is appropriate to issue a prohibition or improvement notice.

Remedies that may be achieved through a particular course of enforcement action

It is relevant to consider the remedies that may be achieved. A combination of enforcement and compliance tools may be used by Comcare and investigators.

Reference material

Information on Comcare publications and compliance assistance material can be found on Comcare's website at www.comcare.gov.au or by contacting Comcare on 1300 366 979.

(5) Sections 28, 29 and 37 of the Act.
(6) Section 41 of the Act. National OHS Compliance and Enforcement Policy at page 7.
(7) National OHS Compliance and Enforcement Policy at page 7.
(8) National OHS Compliance and Enforcement Policy at page 5 outlines the principles that Australian workplace authorities should have regard to in determining the appropriate compliance and enforcement strategy.
(9) Section 3 of the OHS Act includes at paragraph (f) the object to provide for effective remedies if obligations are not met through the use of civil remedies and, in serious cases, criminal sanctions.