Is the Education Dept getting off lightly?

If Victoria is the jurisdiction with the least changes needed to meet the new Work Health & Safety Act, it is worth looking at a recent enforcement activity.  On 21 April 2010, WorkSafe Victoria announced an enforceable undertaking with the Department of Education & Early Childhood Development (DEECD).

According to the WorkSafe media release this agreement

“…requires all equipment in woodwork, metalwork and automotive secondary school classrooms to be audited by the end of the year – including equipment like planers, grinders and drills.  Equipment which isn’t safe will be removed from use immediately or repaired, and all equipment will be recorded on a centralised register……

The undertaking also requires the DEECD to implement health and safety management systems across all secondary schools, which will be audited annually by specially trained staff members and overseen by WorkSafe.”

This undertaking implies that some schools did not already have an OHS management system or that some had not maintained the system in place at the time.  There are thematic similarities with the Orewa College explosion and prosecution in New Zealand in 2009.

Richard Johnstone and Christine Parker have written

“Enforceable undertakings are an Australian invention. They are promises enforceable in court ‘offered’ by an individual or firm who has allegedly breached the law, and accepted by a regulator.  The enforceable undertaking serves as a substitute for, or augmentation of, other regulatory enforcement methods such as civil, administrative, or even criminal action.”

The response by DEECD in the enforceable undertaking document about additional resources and improved reporting lines to the Departmental Secretary clearly acknowledges inadequate resourcing in this area in the past.  The document states that DEECD acknowledges:

“its underperformance in the area of Occupational Health and Safety and regrets the alleged contraventions alleged in this undertaking.”

This enforceable undertaking has been applied by WorkSafe itself under section 16 of its OHS Act 2004.  Most enforceable undertakings in recent times have been applied through the Courts which provide a clear consequence if the undertaking is not completed, usually within a specified time.  The crucial element of these undertakings is the enforceability – the potentially weakest link in the whole process

The Victorian OHS Act says that if the undertakings are not followed WorkSafe can then bring the issue to the attention of the Magistrates’ Court for action.  There is no indication of what penalty could be applied.  Deliberations of the Magistrates’ Court are not made publicly available unless a journalist sits in on the case and reports the findings so, effectively, any debate is out of the public eye.

One could argue that an enforceable undertaking applied by WorkSafe on a government department is a softer prosecutorial option than running it through the Magistrates’ Court, or a higher Court, first.

It is also possible that applying such enforceable undertakings are more cost-effective for OHS regulators as the enforcement does not involve the regulator’s legal services as much as would a court appearance.

The circumstances of  the two DEECD incidents involve

• loose guards on an electric planer;
• a lack of supervision;
• a lack of adequate guidelines;
• an unsecured cap on a vacuum system.

In the incident involving the planer, the control measure applied by the teacher upon seeing a student with their hand close to the blade of the planer was “to watch his fingers”.  This seems to be an inadequate response.

It is reasonable to expect the same type of penalty to be applied to a similar incident in the private sector.  If this option is not offered, an employer should be able to point to this enforceable undertaking as a process of keeping the company’s name out of court.

Enforceable undertakings can be very useful and powerful as can be seen by the action in relation to John Holland.  Such orders can, according to Johnstone &  Parker,

“…contribute to the goals of rehabilitation and restorative

justice“. (link added)

Johnstone & Parker also say:

“It is crucial that the regulator should be able to enforce compliance with the undertaking.  Accountability at the compliance stage, however, is more than the legal capacity to enforce an undertaking.  Undertakings must be monitored and where compliance with the terms of the undertaking is inadequate, the undertaking must be enforced.  Monitoring enforceable undertakings is central to the credibility of undertakings as an enforcement option.”

The attraction of enforceable undertakings is obvious in the DEECD and John Holland cases where an OHS penalty is applied that (should) results in improved workplace safety management.  However several questions should be asked:

• Why was safety management inadequate in the first place?
• Will safety improvements be to base-grade compliance or in excess of compliance?
• If the commitments are not met in the time set, what penalty would the Magistrate apply? Would the Magistrate simply extend the deadline, apply a harsher penalty or bring the lack of commitment to the attention of the broader public?

WorkSafe’s media release is entitled “WorkSafe steps in to protect student safety”.  For decades WorkSafe has tended to allow the Education Department to manage OHS in schools.  The Education Department has run safety through its administrative powers and, as a result, WorkSafe has had a low profile in the education sector.  The move by WorkSafe to increase its profile  is indicated in the media release title where it has been necessary to “step in” to an industry where its authority has not previously been welcomed.

In an earlier Johnstone and Michelle King research paper, quoted by the OHS review panel in January 2009, the authors said enforceable undertakings:

“…can have a significant impact upon the organisational culture of firms, on their compliance with OHS law, on their acquisition and implementation of skills in relation to systematic OHS management, and in the delivery of tangible benefits to workers, industry and community.”

It is a shame that these societal obligations are not already part of organisational culture.

Kevin Jones