How regulators use the policy
Regulators administer WHS laws within their jurisdiction including monitoring and enforcing compliance with WHS laws.
The National Compliance and Enforcement Policy (the Policy) seeks to ensure a consistent approach to compliance and enforcement by setting out principles which underpin how regulators approach monitoring and enforcing compliance with the WHS Act and Regulations. These principles include:
| Consistency | Regulators endeavour to ensure that similar circumstances at workplaces lead to similar approaches being taken, providing greater protection and certainty for workers, duty holders, and employer and worker representatives. For example, an investigation will generally be undertaken following a work-related death unless there is a compelling reason not to do so. |
| Constructiveness | Regulators provide support, advice and guidance to assist compliance with WHS laws and build capability. This may be done through the provision of support, advice or guidance to reinforce existing legislative requirements and help duty holders understand and improve WHS practices. For example, publishing guidance on compliance, providing advice on due diligence to officers, supporting HSRs, and publicising lessons learned from recent incidents or prosecutions. It may also be provided through the use of tools which direct compliance (e.g. improvement or prohibition notices) or enforceable undertakings which deliver tangible benefits to the workplace, industry or broader community. |
| Transparency | Regulators demonstrate impartiality, balance and integrity. For example, decisions are guided by relevant factors such as the level of risk and the practicality of achieving outcomes across Australian workplaces, and regulators are accountable for their actions and decisions. Decisions are made according to relevant internal policies and procedures, and communicated subject to release under privacy and information laws. |
| Accountability | Regulators make evidence-based decisions that they are willing to explain and can withstand scrutiny. Regulators make available avenues of complaint or appeal. For example, inspectors may provide some information about their workplace inspections to the person who raised the matter. More information about notification of decisions and available avenues to challenge decisions is available in sections 7 and 8, and on regulator websites. |
| Proportionality | Compliance and enforcement responses are proportionate to the seriousness of the conduct. This is guided by the considerations outlined in section 6. For example, regulators may take into account how far short of acceptable standards the conduct falls, the duty holders compliance history and the extent to which the duty holder either contributed to or attempted to control the risks. |
| Responsiveness | Compliance and enforcement measures are responsive to the particular risks and circumstances of the duty holder or workplace. For example, as set out in section 6 of this Policy, regulators consider the breach, the duty holder, the public interest and the available tools. |
| Targeted | Activities are focussed on the areas of highest risk or the regulators’ strategic enforcement priorities. As set out in sections 3, 5 and 6, regulators target their different activities for example, targeting emerging national issues to deter widespread non‑compliance and increase workplace parties’ capabilities. |
The Policy also includes information on how regulators may:
- monitor compliance – monitoring may be done in a number of ways (e.g. inspections or audits) and can be planned (e.g. targeted or proactive) or responsive
- investigate possible breaches - it is not possible for regulators to investigate all WHS issues so regulators generally devote resources to the most serious cases and priority areas
- decide on compliance and enforcement action (see below for more information), and
- some of the tools available to regulators.
The Policy also demonstrates how regulators’ compliance and enforcement activities gives effect to the object of the model WHS Act.
The Policy is principles based. It does not deal with, or prescribe, how regulators’ functions or powers are operationalised.
Instead, the Policy operates alongside other national and jurisdictional policies and procedures governing the use of regulatory tools, and policies specific to each regulator (e.g. how the regulator interacts with the criminal justice system in their jurisdiction).
It is also important to acknowledge that worker and employer representatives have a role in promoting improvements in WHS practices and assisting to achieve healthier and safer working environments.
Compliance and enforcement decision making
Regulators seek to use an effective mix of positive motivators and deterrents to encourage and secure the highest possible levels of compliance with WHS laws.
In doing so, there is a need to balance a number of considerations (as outlined below). This means compliance and enforcement actions will vary in different situations depending on all the specific circumstances.
Once there is evidence of an alleged breach, regulators consider what enforcement action, if any, should be taken. The most appropriate enforcement tool will depend on all the circumstances. Specific criteria which guide regulators in the use of each compliance tool are outlined in the Policy and regulators also consider:
The breach
- Extent of the risk
- Seriousness of the breach
- Actual or potential consequences
- Culpability e.g. how far below acceptable standards conduct falls
- Any aggravating or mitigating circumstances e.g. extent duty holder contributed vs tried to control the risk
- Immediacy of risk
- If the safety issue can be fixed in the inspector’s presence or they can be satisfied with a plan to fix the breach
The duty holder
- Compliance history
- Attitude and willingness to comply
- Likelihood of reoffending
- Authorisation to undertake certain types of work
- Prior notice of the risk e.g. direct to duty holder or via educational or communication materials
The public interest
- Deterrence impact e.g. prevalence of the offence and possible industry impact
- Encouraging better WHS, continuous innovation and improvement, and building capability
- Strategic enforcement priorities
- Community expectation
- Need to support workplace parties, foster co‑operative, consultative relationships and fair and effective workplace representation (this reflects the model WHS Act object s3(1)(b))
Regulators will then start their intervention with the most appropriate tools. The below pyramid demonstrates, in a general sense, the relative volume or proportionate use of the different common tools.
A number of tools are available to regulators. They can be used alone or in combination to:
- positively motivate, encourage or assist compliance
- direct compliance by compelling a duty holder to remedy any identified breach, or
- sanction a contravening duty holder.
For more information see the National Compliance and Enforcement Policy .
Supporting Information
For more information on enforcement mechanisms see How do the regulators enforce WHS laws?