Review of the key characteristics that determine the efficacy of OHS instruments: Report to the Minister of Labour
The review of the key characteristics that determine the efficacy of occupational health and safety (OHS) instruments is a joint initiative of the Office of the Australian Safety and Compensation Council (the Office of the ASCC) and the New Zealand National Occupational Health and Safety Advisory Committee (NOHSAC).
Australia and New Zealand’s OHS regulatory regimes, following the model recommended by the Robens report, are ‘performance-based’ or ‘goal-setting’. The general duty provisions that form their core are supported by regulations and approved codes of practice and by guidance material prepared by regulatory authorities. These regimes also leave open the possibility of (or, in some cases, actively encourage) the development of codes of practice by industry. The emphasis is on encouraging and facilitating compliance and best practice as well as inspecting for and enforcing compliance. For these reasons, providing greater certainty about what constitutes compliance (through codes of practice) and broader advice (through guidance material) is particularly important.
The working environment in New Zealand, in keeping with the experience of most western industrial societies, has undergone massive change in the past two decades. These changes have occurred relatively shortly after the transition to performance-based regulation of occupational health and safety.[i] Many of the settings upon which that transition was predicated (such as large organisations and high union density) have declined in presence and influence. The shift from more prescriptive regulation of occupational health and safety in New Zealand was not completed by the time the world of OHS became much more complicated by these changes in the workplace.
Since the introduction of Robens-style regulatory regimes, very little effort has been made to identify the relative importance of codes and guidance material to the functioning of the entire regulatory regime, to determine whether codes should be voluntary or quasi-legal, whether codes and guidance material work better in some circumstances than others, what characteristics determine their efficacy, or how they can best be designed and implemented to work in the public interest.
There has been no systematic review of the efficacy of instruments at the ‘voluntary’ end of the OHS regulatory continuum in general, or of approved codes of practice and guidance material in particular. The few evaluations in Australia, New Zealand and other countries have focused primarily on particular OHS codes or guidance, in a particular jurisdiction.
The recently released NOHSAC report National profile of occupational health and safety in New Zealand: Report to the Minister of Labour revealed stakeholder concerns about a lack of support and guidance for workplaces, including:
- gaps in the guidance material that supports compliance with the performance-based framework and in the resources to support such a framework (approved codes of practice are not always up to date, and some are inconsistent with current best practice)
- responsible agencies need to prioritise the development of resources to assist duty holders in complying with the performance-based approach of the legislative framework
- interface issues between the Health and Safety in Employment (HSE) Act and Hazardous Substances and New Organisms (HSNO) Act (particularly in relation to differing applications of the performance approach and to duplication of material that assists duty holders to comply under both Acts) – these interface issues are part of the Quality Regulation Review and are not commented on further in this report
- compliance costs associated with the performance-based framework do not fall equally on all businesses, with small businesses (less than 10 employees) likely to bear greater costs per person than larger businesses
- content of publications needs to be simple, accessible and appropriate to the target audience.
The conclusions and recommendations of this report are intended to provide an overview of the key characteristics that determine the efficacy of OHS instruments, principally codes of practice and guidance material and options for future development.