The total number of OHS prosecutions undertaken by WorkSafe Victoria in 2017 outstripped all other OHS regulators across Australia combined. WorkSafe prosecuted 104 employers across all industries last year. 35 of those prosecutions were related to the construction industry.

Of those 35 construction prosecutions, 12 related to incidents in the commercial sector and 16 in the housing sector. The average fine levied on construction businesses was in excess of $90,000 for incidents going back as far as 2011.

WorkSafe has acknowledged to industry stakeholders that 80 per cent of their prosecutions over the last five years have been reactive—that is, related to actual workplace accidents and fatalities. In the cause of preventing injury, this is too little too late.

WorkSafe should be focused more on using their expertise and guidance for prevention than on taking punitive action after the fact. WorkSafe has suggested that the remaining twenty per cent of those prosecutions has been proactive, but their definition of a ‘proactive’ prosecution is one in which there is no incident or illness, and generally relate to duty holders being caught in the act of working unsafely. These prosecutions often result in small fines, but , ideally, these breaches should have been addressed through improvement or prohibition notices rather than through prosecution.

In recent years, we have seen a number of the proactive prosecutions related to builders and subcontractors in the Bendigo and Ballarat regions. Those prosecutions would often make headlines in ‘The Advertiser’ or ‘The Courier’ and would therefore attract considerable local attention, but it would be wrong to suggest that these prosecutions have had an influence on the industry as a whole. The value of these ‘traffic-light’ prosecutions is questionable.

Safe Work Method Statements (SWMS) featured heavily in evidence used in WorkSafe’s construction prosecutions. Master Builders has been consistent in its criticism that WorkSafe inspectors appear to be reluctant to enforce SWMS in the field, but all too eager to use them to prosecute someone.

WorkSafe has provided Master Builders with a legal opinion that they do not have the capacity to stop work unless there is an immediate risk to safety despite the OHS regulations explicitly stating that high-risk construction work must be performed in accordance with SWMS; and where that does not occur, work must stop.

The laws don’t exist to allow regulators to notch-up easy prosecutions. If the regulator claims they cannot enforce the law, the laws need to change.

WorkSafe is meant to be a ‘constructive’ regulator. WorkSafe characterises its constructive compliance strategy in its Compliance and Enforcement Policy as having four key levers:

• Effective communication and engagement with stakeholders
• The provision of practical and constructive advice and information to workplace parties
• Supporting and involving stakeholders in the provision and promotion of education and training in occupational health and safety
• Financial incentives to workplace parties and their representatives for improved OHS performance.
During 2017 the construction team at WorkSafe ran a number of focus campaigns. But collation of the data gleaned from these campaigns has been extremely slow and so the learning outcomes remain unknown.

The reality is that only a handful of WorkSafe’s OHS prosecutions make newspaper headlines. All WorkSafe prosecutions are listed on the WorkSafe website. It has only been in the latter part of 2017 that WorkSafe has started detailing learning outcomes for duty holders as footnotes on these prosecution summaries. OHS practitioners and lawyers are the only people likely to peruse WorkSafe’s list of prosecutions, so to suggest that the placement of cases on the website influences safety outcomes in the community is absurd.

Apart from breakfast information sessions conducted in towns along the NSW/Victorian border in conjunction with Safe Work NSW, WorkSafe’s construction team have delivered no seminars or information sessions in metropolitan areas. There has been very little in the way of education. Master Builders considers that WorkSafe is not doing enough to support the industry.

We have repeatedly expressed a desire for WorkSafe to be more proactive in its prosecution activity and less reactive. We have urged WorkSafe to be the constructive regulator they are meant to be by engaging more in education and awareness-raising, especially in relation to the duties under the construction regulations and Safe Work Method Statements.

If builders and subcontractors knew that inspectors would be out in force, tasked with finding specifically targeted strategic prosecutions, the number of reactive prosecutions would likely decrease. Master Builders would enthusiastically support WorkSafe’s campaigns to get the messages out.

This also means that fewer builders and subcontractors would need to be prosecuted, thereby easing the burden on the regulatory system.

Unfortunately, when WorkSafe boasted they had delivered more prosecutions than all other regulators combined they were also indicating that they wanted to deliver more prosecutions and were pushing for the courts to apportion higher penalties.

As a footnote, at the start of 2018 the level of legal compliance with OHS regulations still remains terribly low in the housing sector. Housing builders should reflect on the $880,000-prosecution of a small residential builder whose business is now in liquidation after his apprentice died following a structural collapse that occurred in 2015. We do not want to see any of our members in this situation.

The Master Builders OHS unit urges members to use the services that they pay for and to call the OHS unit for advice whenever necessary on (03) 9411 4555.