Comcare at Senate Estimates – enforcement performance indicators

Comcare is often seen as a minor player in OHS regulation in Australia because, although it has national coverage, it limits its OHS and workers’ compensation activities to specific industrial and public service sectors.  Although it is limited, it has a monopoly in those sectors and is powerful.  Its role in Australia’s harmonisation program seems to be just another OHS regulator but it has a unique role and structure.

Recently, Comcare’s CEO, Paul O’Connor, and Deputy CEO, Steve Kibble, addressed the Australian Senate’s Education, Employment and Workplace Relations Legislation Committee in the annual Estimates hearings.  Hansard reports Kibble’s comments (around page 32) on the enforcement activity of Comcare:

“Comcare has initiated 16 civil court proceedings in relation to alleged breaches of the OHS Act since 2004…..

Recent prosecutions include a matter in relation to a federal agent of the Australian Federal Police for a breach of his individual duties of care.  That matter is still before the court. We have also taken proceedings against the department of immigration and Subsee Explorer Pty Ltd.  They were both in relation to the fatalities with the loss of the Malu Sara in the Torres Strait in 2005.  Those two matters are still before the court.  We prosecuted Linfox Australia following a severe personal injury suffered by a Linfox employee in Western Australia in 2007, and last Thursday the Federal Court determined that Linfox had breached the OHS Act, and imposed a penalty of $150,000 on Linfox” [links added]

Kibble mentions “enforceable undertakings”:

“The enforcement undertakings we have accepted have all been in the form of a commitment by the employer concerned to go above minimum compliance with the act, to improve their training, their systems of safety, to commit to programs of communication, supervisor training, et cetera. ….. We do see the enforceable undertakings as a very useful tool to achieve improved safety outcomes for the benefit of federal workers.”
Whenever legislation is applied to a situation, people need to know whether they have complied or not.  Our interaction with laws is that we either comply or we break the law.  The vagueness of compliance under the upcoming OHS regulatory changes in Australia have been discussed elsewhere but there is an implied admission in Kibble’s comment above that OHS law is not working in itself.  Kibble says that Comcare uses enforceable undertakings to generate
“…a commitment by the employer concerned to go above minimum compliance with the act…”.
Why should the employer exceed compliance?  If this is the case, the compliance level imposed in the Act is insufficient?  Is it any wonder that employers struggle with OHS law when they are not only expected to comply but to exceed that compliance.
In the rough scenario above, the enforceable undertaking is applied to have the company do what they should already have been doing.  And isn’t the enforceable undertaking having Comcare do some of the work for the employer by identifying areas of non- or sub-compliance?  Should this be the role of an OHS regulator?
Paul O’Connor provides some statistics that indicate some of the Comcare licensees are improving their safety performance however the figures quoted show that at least one company, John Holland Group, seems to be improving from a low base.  O’Connor said
“If we look at last financial year, there were about 250 safety incidents reported to Comcare—notifiable incidents under federal law. In this year alone we have seen that drop down to about 154 to date.”
This is an improvement but surely John Holland Group need to do some serious soul-searching as these statistics indicate there remains one reportable incident in the group almost every two days.  And John Holland has been promoting its commitment to “No Harm” since at least 2007.
I interviewed Paul O’Connor shortly after he joined Comcare from Victoria’s Transport Accident commission and he was full of enthusiasm for the job and was well aware of the transformative tasks that lay before him.  But like all OHS regulators, the harmonisation process has been a little destabilising and impeding the development of detailed strategies.  Comcare has the added challenge, perhaps strength, that it manages its clients’ workers compensation as well as injury prevention.  That uniqueness makes it a regulator to watch.
reservoir, victoria, australia

One thought on “Comcare at Senate Estimates – enforcement performance indicators”

  1. Surely this is a recognition of the reality of Robens-style OHS law. Going over & above \”minimum compliance\” can be interpreted in a lot of ways, but a reasonable interpretation could be that it leads to a trade-off – implementing a higher level of internal OHS control (e.g. reviewing and improving internal procedures, training, whatever,) in preference to increased attention from the regulator, whether that be by more inspector visits or further prosecution, or both.

    In that sense enforceable undertakings would be in the interest both of the employer and the regulator (especially one with as few inspectors on the ground as Comcare reputedly has). Hopefully it might even be improve the safety of the workforce.

    I personally think that the ability to commit an employer to a legally enforceable undertaking is a good tool for regulators to deal with low- to medium-level OHS breaches.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.