NOHSAC Report

Executive Summary

  1. Codes of practice and guidance materials fulfil important roles in Australia and New Zealand under their respective regulatory regimes. The former provide greater certainty about what constitutes compliance and the latter provide broader advice. Yet notwithstanding their centrality to the success of occupational health and safety (OHS) regulation, these mechanisms have been subject to very little empirical scrutiny.
  2. The principal aim of this report was to review key characteristics that determine the efficacy of OHS codes of practice and guidance materials and, in so doing, to fill some gaps in the knowledge base about them. The report is underpinned by a review of the literature relating to codes and guidance materials (both regulator and industry developed), in Australia, New Zealand and internationally, in the area of OHS and other areas of regulation. This review is complemented by detailed interviews and questionnaires administered to 54 respondents drawn from OHS regulators, industry and unions, and OHS and other specialists in seven countries (Australia, New Zealand, the United Kingdom, Canada, The Netherlands, Denmark and Finland). The review is also informed by an online survey of 22 users of codes and guidance materials (in Australia and New Zealand).
  3. The factors determining the efficacy of codes of practice and guidance materials are wide-ranging. This research adopted an exploratory approach, identifying and examining a diverse range of factors including the type of instrument and legal status, the purposes and characteristics of individual instruments, development processes, promulgation activities, monitoring of implementation, enforcement and other contextual influences operating in the industries and organisations in which it is intended that codes and guidance materials will be implemented. We make no claim to determine the statistical significance of particular factors. It would be difficult and quite likely impossible to do this, precisely because of the diversity of, and interaction between, these and other factors influencing OHS performance in workplaces. Rather, this report examines the ways these factors can influence the efficacy of OHS instruments.
  4. With regard to legal status, codes of practice ‘approved’ or otherwise officially ‘made’ under OHS legislation have a quasi-legal status. At a minimum they are ‘evidentiary’ and legislation provides for their use as evidence in court proceedings, without further ‘proving’ in court. However, they are not legally binding. They provide guidance about an acceptable way (or ways) to comply with an OHS statute (or regulations), but there is the option to devise alternative ways of satisfying legal obligations. Voluntary codes and non-statutory guidance materials are also flexible instruments that provide advice but they have a less formal status.
  5. Rather than a dichotomy between codes with quasi-legal status and voluntary codes or guidance materials, there is a continuum with regard to the legal status of all types of code and guidance material. At one end of the continuum are instruments that are legally binding because they are cited or ‘called up’ in an Act or regulations. At the other end of the continuum are purely voluntary (industry-developed) codes and guidance materials. In between there are approved codes of practice with a rebuttable presumption of non-compliance (a ‘safe harbour’ for regulators), approved codes of practice (compliance codes) that are ‘deemed to comply’ (a ‘safe harbour’ for duty holders), and approved codes of practice that are evidentiary but have no ‘rebuttable presumption’ or ‘deemed to comply’ status.
  6. In the continuum of quasi-legal and purely advisory instruments, we suggest the principal basis for selecting a quasi-legal instrument over a purely advisory one is the need for unequivocal, authoritative advice. An ‘approved’ code of practice is a more appropriate choice when it is important to provide clarity and certainty about an acceptable way(s) to comply with the OHS statute or regulations, and it needs to be clear and unambiguous that the instrument has legal status and/or can be used as evidence in proceedings. A statutory guideline is appropriate if there is a need to provide a definitive interpretation of a particular provision of an OHS statute or regulation. In other circumstances, where the principal aim is to provide practical advice and solutions, guidance materials (in various forms) are appropriate.
  7. To ensure efficacy, legal status needs to be considered alongside instrument design, content, processes for development, promulgation, enforcement and contextual issues. Irrespective of whether OHS instruments are codes, guidance materials or another type, they need to be suitable for, accessible to and usable by the target audience, and the target audience needs the capacity and motivation to use them.
  8. OHS instruments need to be designed as OHS policy interventions, on the basis of a clear understanding of the rationale for the instruments, how they are intended to work, and who or what is supposed to change. In turn, these questions need to be answered on the basis of a ‘contextual analysis’ of the characteristics of the intended target audience, the industry sector, culture, supply chain relationships and other relevant contextual issues. Decisions can then be made about: the purpose of the instrument; the appropriate legal status and characteristics of the instrument; how the instrument should be developed, who should be involved and how; how it should be promoted, disseminated and explained; the need for and approaches to monitoring implementation; and a strategic approach to enforcement.
  9. The focus of a code of practice or guidance materials may be a class of hazard/risk (eg plant, hazardous substances), a particular hazard/risk (eg forklifts, isocyanates), hazardous work or tasks (eg demolition, confined spaces), or a particular process (eg OHS risk management, consultation). The choice of subject matter is appropriately made on the basis of an analysis of the target audience and industry sector(s). A key consideration is to address the serious hazard exposures or risks for particular working communities.
  10. The types of standard or provision (or mix of provisions) are also important. Appropriately, general duties, performance outcomes and process-based standards are now the building blocks of OHS statutes and regulations in Australia, New Zealand and a number of the overseas countries we studied. However, these types of standard are not especially helpful in codes and guidance materials intended to provide clarity or certainty about what compliance may look like. Some of our respondents saw a place for an explanation of hazard/risk management principles and training or other process-based provisions with regard to specific hazards/risks. Most of our Australian and New Zealand respondents favoured a more prescriptive approach, providing practical advice and solutions indicating what duty holders can do to achieve compliance. However, even here there may be exceptions.
  11. With regard to format and style, there was broad agreement from industry and union ‘users’ of codes and guidance materials that desirable features are: plain language so they are easy to read; clear and concise information (not discursive); practical ‘how to’ advice and solutions; clear, simple drawings, diagrams, photos or other illustrations to support the advice/solutions provided; the incorporation of checklists and tools for use in implementation; up to date; references to other resources and contacts; free print copies; and the avoidance of excessively long, complex or repetitive material.
  12. The development of codes of practice is resource intensive and time consuming. Yet OHS regulators typically make decisions to develop particular instruments based on essentially ad hoc criteria. With limited human and financial resources available, there is a strong case to use these strategically, adopting a systematic approach to determining when a new instrument is developed and predetermined criteria for doing so. These criteria might include: areas of risk identified on the basis of hazard exposure and injury surveillance information; and areas of greatest need for the use of regulator resources (those less able to develop instruments themselves).
  13. Development processes also ‘miss the mark’. For codes of practice, ‘typical’ processes include forums for stakeholder consultation on draft documents produced or provided (from another source) by the regulator, a period of public consultation/public comment, and approval by the relevant Minister or authority. There may also be Parliamentary scrutiny of gazetted codes. Despite all of these processes, there are serious concerns about the knowledge and expertise contributed to the process, and weaknesses in (or lack of) engagement with those expected to implement the codes. These issues were raised with particular reference to regulator-developed codes of practice but may also apply to the development of OHS instruments more generally.
  14. Whether the development of a code or guidance materials is led by a regulator or by industry, some rethinking of the process is needed. For efficacy, there is a need to ensure relevant knowledge, skills and experience are contributed with regard to: the hazard/risk or other subject matter; existing OHS legislation; the standards’ development process; practical understanding of the industry sector(s), workplace(s) and work process(es) for which a code or guidance materials is intended; and plain language drafting and user-friendly presentation. Effective communication skills are also needed to facilitate the involvement of individuals with these different areas of expertise, as well as skills in gathering and assimilating information.
  15. There is a case for identifying specific competencies required for standards’ development staff and actively developing such expertise (rather than ‘learning by doing’). Beyond this, we are not suggesting that all the knowledge, skills and experience can be found in particular individuals. This is part of the problem. Current processes tend to focus too much responsibility on the individual members of committees and working parties. Rather, as part of the ‘analysis’ process we are suggesting there is a need to clarify what is needed for the development of a particular instrument and to actively seek this out.
  16. Except amongst the most motivated people, changes in attitude and behaviour rarely flow from information provision alone. However well an OHS instrument is designed and developed, its efficacy will also depend on how well it is disseminated and made known to those for whom it is intended. A more proactive approach is needed than the present heavy reliance on websites and newsletters. For efficacy, there is a need to tap into the ways the relevant people actually obtain information and who they will ‘hear’ it from, ideally connecting with their business priorities.
  17. Promulgation can also take a much wider range of forms, including: face-to-face distribution and encouragement of action from trusted sources (customers, suppliers, industry peers, networks and associations); active distribution in inspectors’ visits to workplaces; more active ‘hands-on support’ such as on-site advice over a period of time; print copies available free so they can be ‘put in people’s hands’; and facilitating access through websites by direct communication with relevant people about what is there and how to access it. Attention to website design can also increase accessibility to ‘casual visitors’. Trialling and testing are needed to ensure this.
  18. There is a case for a more strategic use of codes and guidance materials by OHS regulators to provide advice, monitoring and enforcement when required. This includes inspectors alerting duty holders to particular codes and guidance materials and ‘taking them through’ the advice and solutions they provide. By referencing provisions in audit tools, performance can be monitored and duty holders alerted to relevant codes and guidance materials available for areas of non-compliance. They can be used as part of targeted interventions, such as industry sector workshops to educate duty holders and follow-up checks on implementation, and in enforcement action.
  19. For codes of practice, in particular, there is a case for ensuring that monitoring and enforcement are integrated into the overall implementation strategy. Experience with voluntary industry codes suggests some ways the influence of regulators may be widened to other ‘actors’, for example by harnessing peer pressure through industry associations, networks and supply chains, encouraging independent third party audits that make specific reference to particular provisions of codes, and the provision of incentives by workers’ compensation providers. The relevant actors and opportunities for monitoring and enforcement can be considered ‘case by case’ as new instruments are developed.
  20. Through the literature and findings from respondents we have identified a number of opportunities for enhancing the efficacy of OHS codes and guidance materials. This does not mean these instruments are inherently flawed. Rather, their efficacy may be reduced by less than optimal design, development, promulgation, monitoring and enforcement. Our respondents had suggestions for improvement and sometimes had serious concerns, but industry, union and regulator respondents alike saw an ongoing role for these OHS instruments.
  21. Respondents who apply codes or guidance materials as end users said they are a resource for developing in-house policies, procedures, practices or systems of work. They are used to identify hazards and determine controls or opportunities for improvement. They are used to develop training materials and determine workplace amenities and facilities. They provide a benchmark against which OHS outcomes can be progressively improved, through work and workplace redesign, hazard/risk management, training and safe work practices.
  22. The challenge is to enhance the quality, extend the range of users and foster their implementation across a wider range of workplaces. Important lessons may be drawn from experience with voluntary industry codes where common characteristics of success have been identified. These include: commitment and leaders who visibly champion the code; staff development and training to ensure ‘buy-in’ by those who need to implement it; and clearly articulated aims, roles and responsibilities. Also important are: an open process of development and implementation, including communication with a wide range of stakeholders; and fair and open dispute resolution.
  23. We have also stressed the need to treat the development and introduction of new codes and guidance materials as OHS policy interventions and part of this means incorporating evaluation as an integral part of the intervention. A range of confounding influences makes evaluation difficult. Nonetheless, the basis for evaluation should be determined when clarifying the rationale for an OHS instrument, how it is supposed to work, and who or what is supposed to change.