On 27 February 2024, the NSW Audit Office (NAO) handed down its much-anticipated findings on the effectiveness of SafeWork NSW’s (SafeWork) performance of its regulatory compliance functions for work health and safety in NSW (Audit Report).
The Audit Report assessed the effectiveness of SafeWork in monitoring and enforcing compliance with the Work Health and Safety Act 2011 (NSW).
The Audit Report provides a fairly damning assessment of SafeWork’s performance and identifies a number of key areas where SafeWork was not performing its functions appropriately and within which SafeWork can improve, including in relation to complaints, levels of transparency and compliance with key performance factors.
Key Findings
The key findings in the Audit Report relevantly included that:
Performance Reports
There is a lack of transparency in SafeWork’s reporting about its performance and compliance functions. The current reporting is spread over various state and federal reporting regimes and is not consolidated into one report.
Further, the reporting currently undertaken tends to focus on activities, whereas it should focus on outcomes in order to determine whether SafeWork is performing adequately.
Reaction to Emerging Risks
SafeWork lacks an effective strategic and data-driven approach to emerging Work Health and Safety (WHS) risks.
As a result, SafeWork has not reacted quickly enough to respond to critical emerging risks – for instance, the response to the risk of respirable crystalline silica from manufactured stone was very slow.
Consistency
SafeWork is inconsistent in how it makes decisions and operates, which has impacted its ability to enforce compliance efficiently and fairly.
Too much reliance is placed on subjective views of individual inspectors, which can differ widely depending on experience, knowledge and attitudes of those inspectors.
Further, there is no formal process to regularly review and quality assure the decisions made by the inspectors.
Triage Errors
There has been a trend of complaints to SafeWork being triaged into less serious categories, despite data published by SafeWork Australia showing an increase in the rate of serious injuries over the same period.
Response Letters
Response letters issued by SafeWork to deal with low-risk complaints were rarely followed up to verify the employer has received them, or whether the letter had any impact on the risk to which they were responding. It was therefore not possible to measure whether this was an effective way to ensure compliance with the WHS Act.
Procurement Process
Flaws were identified in the way that SafeWork procured third party assistance with monitoring functions (Research Partner).
Infrastructure
SafeWork’s information management system was criticised as being old and past its effective useful life. This was identified as contributing to SafeWork’s ability to function effectively.
Recommendations
The NAO recommended that SafeWork:
- ensures there is an independent investigation into the procurement of the Research Partner;
- embeds a formal process to review and set its annual regulatory priorities, consult with all relevant stakeholders and evaluate the outcomes of annual regulatory priorities;
- publishes a consolidated performance report on the SafeWork website. This will make the information publicly available and ideally more transparent to relevant stakeholders;
- sets long-term priorities, including for workforce planning and improvements to technology;
- improves its use of data and starts work to replace its existing complaints handling system;
- reviews its risk culture and its risk management framework; and
- reviews the quality assurance measures that support consistent regulatory decisions.
Comments
The Audit Report is fairly scathing of SafeWork and its role as the primary WHS compliance agency in NSW. Unfortunately, for too long, there has been an inconsistent approach to WHS and how the legislative framework is enforced. However, it is hoped that with the implementation of NAO’s recommendations, SafeWork can move towards a much more cohesive, clear and transparent approach to WHS. This should provide greater certainty for all businesses about how the legislative requirements will be applied in workplaces and how SafeWork responds to non-compliance as well as new and emerging risks.
Source: Lexology
