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Review of the key characteristics that determine the efficacy of OHS instruments: Report to the Minister of Labour

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Recommendations

This report set out to review the efficacy of OHS instruments in the form of approved codes of practice and guidance material. Despite such OHS instruments being central to the Robens model of OHS regulation, no systematic reviews of these OHS instruments have been undertaken in New Zealand or in any other countries.

What is striking, however, is that the Robens model of performance-based legislation has not been fully implemented or supported in New Zealand. Under the legislation, employers are responsible for managing hazards in their workplaces. The Robens model envisaged support for employers and workplaces in the form of approved codes of practice and guidance material provided by regulators (in conjunction with industry). Such codes were meant to encourage and facilitate compliance and support best practice, with the aim of preventing occupational disease and injury.

In New Zealand, the lead agency with the responsibility and mandate for occupational health and safety and the WHSS have effectively stopped producing approved codes of practice and reduced the level of guidance materials for workplaces. This is due to a combination of a lack of resources (financial and technical) and the HSE Act being effectively silent on which agency is responsible for developing and maintaining approved codes of practice and other OHS instruments.

Clearly there is a need for approved codes and guidance material. Such OHS instruments are used by workplaces, unions, OHS professionals and the agencies themselves in their day-to-day activities. The development of approved codes and guidance material can be resource intensive. This issue has been made far worse than it needs to be by the lack of commitment over the last decade to providing information to workplaces in line with the Robens model. Resources (and initiatives) can and should be adapted from other jurisdictions where appropriate.

Compounding these issues are:

It is imperative, therefore, that the full model of the Robens approach to OHS regulation is implemented and appropriate codes of practice, and particularly guidance material, provided for workplaces immediately. The Department of Labour, as the lead agency for the WHSS, should be given a clear legislative mandate and responsibility to develop approved codes of practice and guidance material for workplaces. A key consideration for the development of any material developed is to address the serious hazards, exposures and risks for particular working communities. A failure to provide information for workplaces (along with other key elements of an effective occupational health and safety system) will jeopardise the vision of the WHSS of healthy people in safe and productive workplaces.

The following recommendations have been made in light of the above considerations and previous NOHSAC reports. These recommendations, in part, reflect previous recommendations from NOHSAC. Rather than being seen as repetitive recommendations, they should be seen as integral parts of an effective national occupational health and safety system.

1.   The Department of Labour, as the regulator and lead agency for the WHSS, must provide workplaces with current approved codes of practice and guidance material designed to encourage and facilitate compliance and support best practice.

The Robens model clearly envisaged support for workplaces; however, this role has not been fulfilled by the lead agency. The recent increase in funding received by the Department of Labour will provide a basis for the development and revision of approved codes and guidance material. What is required is the ongoing commitment over the longer term in resources (particularly financial and technical) by the Department of Labour to ensure that not only existing OHS issues are addressed but also new and emerging issues.

2.   Approved codes of practice and other guidance material must be developed in response to considered analysis of current workplace exposures, emerging issues and in conjunction with the surveillance of occupational disease and injury.

As noted in previous NOHSAC reports, OHS policies and prevention activities (and this includes approved codes and guidance material) must be based on data derived from concept-driven occupational disease and injury surveillance systems integrated with exposure surveillance data. Codes of practice and other guidance material must be developed in response to clearly identified risks and priorities for both occupational injury and occupational disease, which, in turn, requires accurate and timely information on occupational disease and injury and current workplace exposures. Effective data systems should be used to:

3.   Lead agencies for Occupational Health and Safety must attract and maintain a core of specialist health and safety staff with relevant knowledge, skills and experience.

Such expertise is required to ensure the efficacy of any intended code or guidance. Staff involved in the development of approved codes must have knowledge, skill and experience in:

4.   The Department of Labour establishes clear guidelines concerning the development of approved codes and guidance material for workplaces.

At present, it is not immediately clear when the regulator may choose to develop and/or recommend a document as a code of practice rather than the production of some other form of guidance material, or indeed the taking of no action at all. OHS instruments need to be designed as OHS policy interventions, on the basis of a clear understanding of the rationale for the instrument, how it is intended to work, and who or what is supposed to change. In turn, these questions need to be answered on the basis of a ‘contextual analysis’ of the characteristics of the intended target audience, the industry sector, culture, supply chain relationships and other relevant contextual issues. Decisions can then be made about the purpose of the instrument; the appropriate legal status and characteristics of the instrument; how the instrument should be developed, who should be involved and how; how it should be promoted, disseminated and explained; the need for and approaches to monitoring implementation; and a strategic approach to enforcement.

An example of the sorts of principles that may guide the development of approved codes of practice, guidelines and other guidance information is provided by the recently revised Victorian Workcover[19] approach to these issues (Appendix 2).

This approach suggests approved codes are the appropriate choice when the purpose is to provide clarity and certainty about what may be done to comply with OHS obligations, provided there are known and effective means of achieving compliance.

If certainty and transparency are needed about interpretation or administration of OHS law, the appropriate choice is guidelines. For promotion of OHS awareness and to build OHS knowledge, OHS alerts can be used to identify immediate remedial action needed to address hazardous practices or things. More generally, guidance may be produced about the Act, regulations, particular hazards or risks, best practices, reference sources or performance data.

Additionally, to ensure the efficacy of approved codes of practice and guidance material, they should:

5.   No code of practice or other guidance material should be older than 10 years from the date of publication without being reviewed for its relevance and accuracy.

Approved codes of practice and guidance material should be reviewed regularly to ensure that they reflect current practice in the workplace. They should be clearly identifiable as to the version and date of production.

A streamlined process should be developed for removing outdated approved codes of practice and, by association, regulations. Given the legal hierarchy of OHS instruments, outdated approved codes can effectively override current guidance material that reflects best practice.

6.   Guidance material produced by agencies other than the regulator should be aligned with publications produced by the regulator. In the absence of information from the regulator, this guidance material must reflect technical information critical to the prevention of harm and be subject to the same rigour as other publications as it is often relied upon in the workplace.

The Injury Prevention, Rehabilitation, and Compensation Act 2001 places the obligation on the ACC to ensure that its injury prevention initiatives are co-ordinated with those of other agencies.[20] To this end, there is a joint planning requirement between ACC and the Department of Labour on work safety interventions. This should include the co-ordinated development of codes of practice and guidance material not only for occupational safety but also occupational health. (Note, only approved codes can be developed by the Department of Labour.)

7.   Approved codes of practice and guidance material should be used strategically by government agencies to provide advice, monitoring and enforcement when required.

This includes:

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