Regulating Workplace Safety System and

This book addresses the question: how can law influence the internal self-regulation of organizations in order to make them more responsive to occupational health and safety concerns? It argues for a two track system of regulation under which enterprises are offered a choice between a continuation of traditional forms of regulation and the adoption of a safety management system-based approach on the other.

Neil Gunningham is Director of the Australian Centre for Environmental Law, Australian National University, Canberra. In 1997 he was Visiting and Senior Fulbright Scholar at the Centre for the Study of Law and Society, University of California, Berkeley. He was previously a Research Fellow at the American Bar Foundation, Chicago.
Richard Johnstone is Associate Professor at the Centre for Employment and Labour Relations Law, University of Melbourne. In 1992 and 1996 he was a visiting scholar at the Centre for Socio-Legal Studies at Oxford University.

Table of Abbreviations

xvi

Table of Statutes and Conventions

xvii

Table of Cases

xx

Introduction

1

(21)

The need for further reform

1

(5)

The role of the state

6

(5)

The aims of this book

11

(4)

The structure of the book

15

(7)

From Compliance to Best Practice in OHS: The Roles of Specification, Performance, and Systems-Based Standards

22

(46)

Introduction

22

(1)

How should standards be classified?

23

(1)

Phase one: Specification standards

24

(1)

Phase two: Performance standards

25

(3)

Towards optimal standards design

28

(8)

Specification versus performance standards?

28

(4)

The role of codes of practice

32

(2)

Limitations of the first two phases

34

(2)

Phase three: Systems-based standards

36

(15)

The precursor: Process-based standards

36

(2)

What is a systems-based approach?

38

(5)

Strengths and weaknesses of SMSs

43

(8)

The relationship between SMSs and performance and specification standards

51

(17)

Towards a Systems-Based Approach: Voluntarism, Legislation, or Incentives?

68

(36)

The limits of voluntarism

68

(3)

The role of legislation

71

(8)

Designing a mandatory systems-based approach

72

(2)

Would a mandatory approach be effective?

74

(3)

A halfway house: incorporating systems into codes of practice

77

(2)

Incentive-based approaches

79

(13)

Administrative incentives

80

(2)

Logos and public relations

82

(2)

Building incentives into Workers Compensation Schemes

84

(2)

Making a management system a prerequisite for tendering for certain contracts

86

(1)

Subsidizing management systems

87

(1)

Supply side pressure

88

(1)

Evaluating incentive-based approaches

88

(4)

Implications for regulatory and administrative policy: Towards a two-track approach

92

(12)

Two Paths to Enlightenment: A Two-Track Approach to Regulation

104

(37)

Track One: Towards efficient and effective regulation

104

(1)

Allocating resources

105

(9)

Strategies for inspection and enforcement

111

(3)

Towards a pyramidal enforcement response

114

(15)

The importance of carrots

116

(5)

Climbing the pyramid: Theory and practice

121

(2)

The limits of a `pure' pyramidal approach

123

(6)

Controlling contractors and suppliers under Track One

129

(12)

From Adversarialism to Partnership: Track Two Regulation

141

(42)

From inspection to audit

142

(1)

The problem of resources

142

(1)

Strategies to encourage self-regulation by individual enterprises

143

(6)

Essential prerequisites for effective self-regulation

144

(5)

The role of regulatory or third party oversight

149

(6)

The inspectorate as backstop

155

(3)

Track Two: From inspection to audit

158

(4)

The role of internal audits

162

(1)

The need for highly skilled and flexible regulators

162

(2)

The role of trade unions

164

(6)

Conclusion

170

(13)

The Top of the Enforcement Pyramid: Rethinking the Place of Criminal Sanctions in OHS Regulation

183

(72)

Introduction

183

(3)

The roles of enforcement under two-track regulation

183

(1)

Recasting the role of prosecution

184

(2)

The purpose of criminal sanctions in the OHS arena

186

(11)

Deterrence

187

(5)

Moving beyond deterrence in the use of criminal sanctions

192

(3)

Civil or criminal penalties?

195

(2)

Making the most of prosecution in the enforcement pyramid

197

(9)

The place of prosecution in the enforcement pyramid: Two levels of courts

197

(4)

Using prosecution to maintain the integrity of the enforcement pyramid: Broad principles

201

(5)

More flexible sanctioning: Broadening the range of OHS prosecutions

206

(22)

Moving up the pyramid: `Pure risk' prosecutions

207

(3)

Prosecuting fatalities and serious injuries: Manslaughter and related crimes

210

(1)

Corporate criminal liability

210

(2)

The importance of prosecuting for manslaughter/related offences

212

(3)

Who to prosecute: Looking beyond `the corporate employer' to corporate officers

215

(1)

Internal discipline

216

(1)

Why prosecute individuals?

217

(3)

Focus on top management

220

(1)

Fault-based corporate officer liability

221

(2)

Nominated responsibility

223

(2)

Activate and monitor private justice systems

225

(3)

Conclusion

228

(27)

Bigger Sticks: Tougher and more Flexible Sanctions for OHS Offenders

255

(53)

Introduction

255

(1)

The deficiencies of the fine as an OHS sanction

256

(3)

Rethinking corporate sanctions for OHS offences

259

(18)

Improving the fine

259

(1)

Increase the maximum fines

259

(2)

Tailoring fines to the offender's resources

261

(1)

Introducing new corporate sanctions

262

(1)

Publicity orders

263

(3)

Supervisory orders and corporate probation

266

(1)

Internal discipline orders

267

(1)

Organizational reform orders

268

(2)

Punitive injunctions

270

(2)

Community service orders

272

(2)

Dissolution

274

(1)

Other possible corporate sanctions

275

(2)

New sanctions in the pyramid

277

(1)

Structuring sentencing discretion

277

(5)

Developing sentencing guidelines for OHS prosecutions utilizing a wider range of sanctions

282

(9)

Conclusion

291

(17)

Conclusion: Recommendations for Reform

308

(33)

Compliance with what? The roles of specification and performance standards

308

(2)

Towards a systems-based approach: Voluntarism, legislation or incentives?

310

(3)

Regulating Track One enterprises

313

(2)

Enforcement strategies under Track One

315

(2)

Regulating Track Two enterprises

317

(3)

Special measures to assist small business

320

(2)

Flexible enforcement measures for non-factory workplaces

322

(1)

The role of criminal prosecution at the top of the pyramid

323

(2)

Criticisms of traditional approaches to OHS prosecution

325

(2)

Rethinking OHS prosecutions

327

(2)

Nine principles for more effective OHS prosecutions

329

(8)

Conclusion

337

(4)

Appendix The Legal, Institutional, and Industrial Relations Environment Governing OHS in the USA, the UK, Sweden, Denmark, and Australia

341

(52)

Division of responsibilities between national and state governments

341

(3)

The coverage of the OHS legislation

344

(1)

Legal responsibilities of employers and employees

345

(6)

Role of industrial relations institutions in setting, legislating, and enforcing OHS standards

351

(11)

Legal requirements to conduct regulatory impact statements and to review legislation periodically

362

(3)

Relationship between regulation, complementary legislation, and common law provisions

365

(2)

Processes used to harmonize standards, implement nationally uniform standards, and to ensure mutual recognition of regulation

367

(3)

Approach take to ILO conventions

370

(1)

Types of instrument used to enact policy

371

(3)

Enforcement powers

374

(19)

Selected Bibliography

393

(26)

Index

419

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Regulating Workplace Safety System and Sanctions

Summary

Author Biography

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