Work Health and Safety Regulation Impact Statement could do better

[Originally submitted as a comment to a “safety costs” article]

I’ve spent a coupla hours dipping into what looked to me like the important bits of the WHS reg RIS, and I gotta say it don’t add up. I’d also say that the RIS does, in general terms, do what it should do, in terms of making the reasoning processes it uses relatively clear. The merit of the conclusions is up for debate of course, but at least the RIS seems to have made a fair fist of explaining how the conclusions were reached.

For mine there are 2 key flaws.

1. The options to the proposed reg (chapter 4 pg. 19) are just not sufficient. I don’t think it’s at all reasonable to provide 2 “options” which are: do nothing or make the regs. Roger, it might be reasonable to conclude that a big public consultation exercise has happened with the WHS Act, so why revisit a lot of other options? But the fact is the COAG RIS guidelines say a “range of options” should be included, and it’s common practice in RISs to at least have a few genuine alternatives to consider. (See link to the guidelines: ).

The agreement (as it is) by jurisdictions to put the WHS Act into operation doesn’t come with an all-or-nothing conclusion that the WHS regulations is the only option. We have to acknowledge that when it comes to Regulations, we are getting down to tin-tacks when it comes to statutory obligations; it’s that thing about Regulations “giving practical effect to an Act.” That means a big effort is needed to get it right as far as options go.

F’rinstance, it would be worth considering whether a combined option of both allowing jurisdictions to make their own regs and having a statutory obligation to put genuine mutual recognition in place is viable. This option could investigate the ostensible merit of multiple jurisdictions aiming to do better with OHS regulation (i.e. make their own based on local influences and imperatives). Add a “simple” not-negotiable provision in the WHS Act that a multi-state/territory business is only required to comply with the local laws (based on the corporate address of the business) and that compliance, irrespective of where it is in Oz, is to be recognised as equivalent to compliance with comparable laws. Also add the ability for all enforcement agencies to prosecute using the local laws of the multi-state business.

For mine, that option shifts the hassle of multiple legal compliance away from the multi-state businesses and drops it right in the lap of the enforcement agencies.

This one example of a genuine alternative option may or may not be liked, but that’s not the point. Genuine alternatives should be in the RIS. Of course, we will probably never know how much flexibility was given in what could be covered in the RIS. My example of an option obviously includes a tweak to the WHS Act, and that may well have been considered out of bounds. The other key flaw is to do with the big numbers.

2. Naturally enough, lots of the RIS deals with expected savings and efficiencies. I think the basis of the numbers are just too rubbery. Roger, the RIS acknowledges there is a bunch of rubberiness to deal with, as it should have.

The biggest bit of rubberiness wobbles around the online survey results. The RIS both acknowledges how important those survey results are, but also points out that 75 responses doesn’t amount to anywhere near good enough data. Yep, there is a statement that the poor response rate means the online survey results can only be used to balance up and compare with other research, but the figures from that survey get used a lot.

From a logic perspective, that all sticks in the craw. Who is gunna bother with that survey? On balance of probabilities, only the businesses with the biggest hassles with multi-state OHS dilemmas. Do those businesses come within a bulls-roar of representing even close to a significant proportion of all Australian businesses? Nup. And what about the online survey responses on costs and claimed savings of one WHS reg; can we have confidence in them? Not on the basis of other, much bigger population surveys.

The 2010 Australian institute of Management / Safety Institute of Australia “Business of Safety” survey suggests that estimates of costs of OHS need to be dealt with very cautiously. The AIM/SIA survey had 2,815 respondents, CEOs, OHS managers, middle managers and supervisors. The total number of businesses surveyed doesn’t appear in the results. Nevertheless, the survey revealed that 24% of OHS personnel were unsure of what their company spent on OHS. That begs the question about the accuracy of estimates of savings and costs reported in the WHS reg RIS survey.

Given how important the numbers of compliance costs are in the whole scheme of things, I would have thought that self-reporting of costs really isn’t good enough. A randomly selected bunch of business, or even a less random targeting of typical businesses whose OHS costs are evaluated closely is likely to have produced far more confidence in the big numbers. And I dig the fact that the online survey questions specifically ask for the difference in predicted compliance costs, but if the AIM/SIA survey indicated that 24% of OHS personnel don’t know the OHS budget, how can we be sure of any of the numbers reported in the online survey?

I’ve had to play with RISs back in the day, and I have a pretty good sense of how much of a mind-boggle they can be. I reckon this one has done a pretty good job at describing it’s reasoning, but I think the handling of the issues I’ve described have produced, at very least, doubtful conclusions. I’d think it’s a reasonable guess that all the timing imperatives that have surrounded the WHS caper has played a big part in the production of the RIS.

Col Finnie
director
fini:OHS pty ltd