| 578 |
A
number of submissions argued that the Act should
provide for “on-the-spot fines”. The
question of whether inspectors should have the
power to issue penalty notices which have an attached
direct monetary sanction (i.e. on-the-spot fines)
has, however, been a matter of contention since
the introduction of the Act. |
| 579 |
The
concept of on-the-spot fines is similar to that
of the familiar speeding or parking fine. Implementation
would involve providing inspectors with the power
to issue a notice (usually termed a penalty or
infringement notice) where the inspector has formed
the opinion that a breach of the Act or Regulations
has occurred in circumstances that warrant the
imposition of a deterrent penalty. The ability
to issue improvement and prohibition notices would
still be available to inspectors. Penalty notices
would be issued at the discretion of the inspector. |
| 580 |
The
penalty notice would carry a fixed monetary fine.
The person to whom the notice is issued could
pay the fine by the due date, choose to have the
notice reviewed by the WorkSafe Western Australia
Commissioner where relevant or, ultimately, to
have the matter heard before the Court. Failure
to pay the fine would result in Court proceedings.
No criminal liability would be incurred if the
fine were paid. |
| 581 |
On-the-spot
fines have been implemented in New South Wales
(NSW) and theNorthern Territory (NT). |
| 582 |
Those
in favour of on-the-spot fines argue existing
regulatory tools available to inspectors should
be broadened to address the evidentiary and cost
difficulties experienced in undertaking prosecutions
for breaches of the Act and Regulations. At present
the only mechanism for an employer or employee
to suffer any penalty for breaching the Act or
Regulations is through a formal prosecution. It
is argued in many circumstances that while a prosecution
may not be justified, the offender should suffer
some sanction or penalty as a means of deterrence.
On-the-spot fines provide the deterrent but do
not tie up the resources of WorkSafe inspectors,
the Crown Solicitor’s Office, lawyers and
the time of the Courts. |
| 583 |
The
alternative view is that on-the-spot fines have
the potential to turn inspectors into “revenue
collectors” and in the process de-value the
deterrent impact of notices. Fixed fines are also
seen as inequitable in their impact on small enterprises.
An identical onthe- spot fine may constitute an
insignificant penalty for a large employer and
a substantial penalty for a small enterprise. |
| 584 |
Other
concerns are that inspectors will inconsistently
or selectively apply the fines. The discretion
that would necessarily be available to inspectors
could lead to the perception or reality of favoritism
or corruption. It is also argued on-the-spot fines
are inconsistent with the self-regulatory philosophy
of the Act and are likely to have only a short-term
impact rather than leading to lasting change. |
| 585 |
An
evaluation of the efficacy of on-the-spot fines
in NSW and NT, conducted on behalf of the National
Occupational Health and Safety Commission, was
released in 199975. This evaluation showed that
most penalty notices were issued in situations
where there was a minor risk to safety. They were
not issued where an injury or disease occurred.
The main offences dealt with by way of penalty
notices were highly specific such as not wearing
a safety helmet, although some had been issued
for failure to comply with an improvement notice,
and not providing or maintaining a safe system
of work. The overwhelming majority of fines, in
both NSW and NT, were issued in the construction
industry. The study also indicated approximately
20% of penalty notices in NSW were appealed and
of these about 20% were successful.76 |
| 586 |
The
evaluation concluded
“The
particular appeal of on-the-spot-fines is
to broaden the scope of regulatory tools available
to inspectors, and in so doing, provide a
stepping stone between advisory actions or
compliance notices and criminal prosecution.
Provided that use of these fines does not
become a substitute for more serious enforcement
action in serious or repeat cases … and
provided they do not serve to trivialise OHS
offences through misuse, then they have most
value when viewed as a
component of an integrated prevention and
enforcement strategy.”77
|
| 587 |
The
submissions arguing in favour of on-the-spot
fines may be summarised by a union observation,
“A
more simplified approach [for processing breaches
of the Act] may be found in … a schedule
of “on the spot fines” which could
be targeted at relatively minor breaches of
the Act or Regulations where questions of
fact are involved. … This approach would
allow Inspectors to spend a greater proportion
of their time on active field duties rather
than spending valuable time at the office
preparing submissions to Crown Counsel for
a prosecution.”78
|
| 589 |
For
its part, WorkSafe was not in favour of on-the-spot
fines although its submission to the 1998 Review
of the Act sought the introduction of on-the-spot
fines as a means of dealing with simple breaches
of the legislation. The proposal was not supported
in the Allanson Report of the 1998 Review, which
concluded,
“The
issue of infringement notices for minor or
clear breaches seems also to sit uncomfortably
with the existing notice system. The existing
system is directed primarily to ensuring that
a breach is not continued and is removed.
In an infringement notice system the focus
seems to be shifted from identifying a hazard
and how it is to be rectified, to writing
a “ticket”.”79
|
| 599 |
WorkSafe
has indicated it accepts the concerns raised in
the Allanson Report. |
| 590 |
The
reservations expressed by Mr Allanson remain valid.
There would seem to be a real risk that recipients
of on-the-spot fines would regard them differently
to improvement and prohibition notices which are
clearly aimed at achieving compliance with the
law and nothing else. Issuing on-the-spot fines
for minor or technical breaches of the law at
the discretion of an inspector would seem to contribute
little to the objective of changing behaviour
particularly where they are issued to a large
employer. To act as an effective deterrent, on-the-spot
fines would need to automatically apply where
relevant breaches of the law are identified by
an inspector (i.e. analogous to a speeding fine).
This could be seen to turn inspectors into “revenue
collectors” with consequent detrimental impact
on their effectiveness. There would also be the
possibility that inspectors could be subject to
complaints of corruption particularly in the exercise
of discretion on whether to issue an infringement
notice or not. |
| 591 |
Minor
breaches of occupational safety and health laws
involving low risk should be dealt with quickly
through the existing enforcement tools available
to inspectors (i.e. verbal directions, improvement
and prohibition notices, and where necessary,
prosecutions). If a minor breach is indicative
of a more fundamental disregard for occupational
safety and health, prosecution, rather than on-the-spot
fines, is the
appropriate enforcement response. |
| 592 |
Inspectors
are already faced with considerable responsibility
in administering the Act. The power to directly
levy a fine would add further pressures and complexity
to the decisions they are now required to make.
The enforcement instruments presently contained
in the Act are generally sufficient to enable
inspectors to promote, encourage and force compliance
with occupational safety and health laws. The
only area where on-the-spot fines may provide
some additional benefits is in relation to compliance
with improvement notices. |
| 593 |
There
is scope for the use of on-the-spot fines where
organisations ignore improvement notices issued
by inspectors. At present these must be enforced
by way of prosecution. Cost, the investment of
inspectors’ and the Courts’ time, the
low penalties and other administrative obligations
means that these are not enforced as regularly
as they should be with the result that the notices
are sometimes ineffective. If the inspector was
able to issue a fine for non-compliance, it is
likely that improvement notices would receive
a higher priority with some organisations. |
| 594 |
The
improvement notice process is different from others
and is more amenable to onthe- spot fines. While
the concerns raised in the foregoing should not
be ignored, they are not all as relevant. For
example, the improvement notices themselves are
subject to review and a party objecting can have
that concluded before being subject to any penalty.
The fines would not be discretionary in the sense
that they would only apply for a specific and
identified failure not to the general exercise
of an inspector’s discretion. They would
only concern improvement notices issued by inspectors
not provisional improvement notices or safety
alerts that may be issued by safety and health
representatives. These could not be enforced without
confirmation by an inspector who would issue an
improvement notice. |
| 595 |
An
employer organisation argued that in some industrially
active workplaces the possibility of on-the-spot
fines would encourage some employees and unions
to increase agitation for improvement notices
to increase pressure on employers for other purposes.
These concerns go mainly to activity in the construction
industry which remains industrially volatile.
While recognising that it could possibly raise
new difficulty the Department and Inspectors could
monitor the situation to ensure they are not drawn
into any industrial campaigns. In addition it
might be necessary for alternatives to be developed
should the intent and effectiveness of the Act
be jeopardised by inappropriate activity or the
processes put into doubt by the use of unfair
or unreasonable strategies. |
| 596 |
Another
employer organisation argued that on-the-spot
fines and subsequent prosecution of those who
refused to comply despite the fine created a situation
of double jeopardy. In effect it was argued that
it was a situation where the employer would be
penalised twice for the same offence. That submission,
however, cannot be accepted as it is no more double
jeopardy than any other situation where continuing
offences attract a continuing penalty. Improvement
notices are issued to improve safety not to penalise.
The person getting the on-the-spot fine has the
opportunity to comply or, as noted, to object
in the first instance. The necessity for the matter
to go to prosecution would depend entirely on
a refusal to comply. |
| 597 |
Perhaps
the most significant concern raised in opposition
to the proposal was concern that on-the-spot fines
will not be consistently applied and that inspectors
could takean arbitrary and unfair approach to
their task. It was argued that one of the existing
concerns with the inspection process is inconsistency
and different standards applied by individual
inspectors |
| 598 |
The
number and regularity of these concerns suggest
that consistency could be an ongoing problem unless
standards are applied and comprehensive training
provided to inspectors. As a result it will be
necessary to ensure resources for training are
provided. It should also be tightly monitored
and regularly reviewed to ensure that
reasonable and fair as well as consistent standards
are adopted. |
| 599 |
While
therefore on-the-spot fines are not generally
supported there is an arguable case for them in
that limited circumstance. |
