On-the spot fines and preventative OHS
behaviour - research report
Foreword
Preface
Executive summary
Terms of reference
Introduction
Part 1: On-the-spot fines in the context of OHS prevention
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Definitions and legislative framework
An evaluation of the literature
The special difficulties of small business
An examination of experiences in NSW and the NT
A. General experiences
B. The construction industry
C. Large companies
D. Small business
Part 2: On-the-spot fines in areas other than OHS
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Potential advantages and disadvantages
Non-OHS areas with experience using on-the-spot fines
Part 3: On-the-spot fines within a broader OHS policy framework
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Locating on-the-spot fines within the enforcement pyramid
Integrating on-the-spot fines with other measures
Towards an integrated approach
Conclusion
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On-the-spot fines in an OHS context
On-the-spot fines in a non-OHS context
Improving on-the-spot fines
Bibliography
Appendix 1 - Methodology
Appendix 2 - List of infringements: NT
Appendix 3 - Penalty (infringement) notices: NSW
Foreword
The National Occupational Health and Safety Commission (NOHSC) is a tripartite
body established by the Commonwealth Government to lead and coordinate national
efforts to prevent or reduce the incidence and severity of occupational injury and
disease by providing healthy and safe working environments. In seeking to improve
Australia’s occupational health and safety (OHS) performance, NOHSC works to:
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support and add value to efforts in the jurisdictions to tailor approaches to
prevention improvement;
facilitate, through strategic alliances, the development and implementation of
better approaches to achieving improved prevention outcomes; and
integrate the needs of small business into its work.
NOHSC has developed a strategic approach to injury and disease prevention that
focuses on identifying nationally significant OHS problems and providing practical
solutions to these problems for workplaces. This approach has four elements. They
are:
Identifying OHS problems - Developing and emerging OHS problems, including
major trends, gaps and issues, will be identified from national and international data
and research.
Finding practical solutions - Prevention initiatives that have been successful in one
State or Territory will be evaluated, adapted and made available to all jurisdictions.
The focus will be on finding practical solutions and, ideally, the best combination of
measures to accelerate prevention improvement in workplaces, and reduce the need
for government intervention.
Facilitating improved prevention performance - Improved prevention performance
will be facilitated by ensuring that workplaces have available to them information and
strategies that are practical and relevant to their needs.
Measuring performance - NOHSC will measure the prevention performance of the
jurisdictions and the nation as a whole, and use the findings for continuous
improvement of prevention efforts.
Preface
Evaluation of OHS Enforcement Strategies – Efficacy of OnThe-Spot Fines
A National Solutions Project 1997/98
In 1997/98 NOHSC embarked on a new national strategic approach and initiated
National Solutions Projects to identify practical preventative solutions in the
workplace and, as a result, to make prevention happen in the workplace.
As part of this drive, NOHSC selected several significant prevention initiatives that
are taking place in different jurisdictions.
The extent to which different enforcement approaches contribute to prevention of
injury and illness in the workplace is a relatively unexplored area in Australia. State
and Territory governments employ a range of strategies to enforce compliance with
regulations relating to the prevention of workplace injury and illness. In some
jurisdictions, these strategies include on-the-spot fines.
A national initiative selected for evaluation was occupational health and safety
enforcement strategies with the focus on the implementation of on-the-spot fines in
NSW and the Northern Territory as a preventative tool. This report details the results
of that evaluation.
Professor Neil Gunningham, Director of the Australian Centre for Environmental Law
in the Faculty of Law at the Australian National University, Canberra was
commissioned in late 1997 to carry out the evaluation. Professor Gunningham is well
known as the author of many publications in the area of OHS regulatory reform,
policy and compliance. He also prepared the review of international occupational
health and safety regulation for the 1995 Industry Commission Report on
occupational health and safety in Australia.
A reference group comprising representatives from OHS authorities from a number of
States and Territories, ACCI and ACTU provided expert and industry advice and
assistance to the project.
Executive Summary
This report was commissioned by the National Occupational Health and Safety
Commission to provide a "snapshot" of the experience of using on-the-spot fines in
the context of occupational health and safety (OHS). In particular, the Commission
was interested in garnering the views of recipients of such fines, and the subsequent
impact of the fines on preventative OHS behaviour.
In Australia, on-the-spot fines have only been used in relation to OHS in two
jurisdictions, New South Wales and the Northern Territory. Consequently,
respondents from these jurisdictions formed the basis of the field research. On-thespot fines are also used in a range of areas other than OHS, and the views of
inspectors and policy makers working in these different areas were also canvassed.
Finally, the application of on-the-spot fines was considered within a broader OHS
policy framework.
On-the-spot fines in the context of OHS prevention
The particular appeal of on-the-spot fines is to provide OHS inspectors with a
stepping stone between advisory actions or compliance notices and criminal
prosecution. In this respect they offer a level of immediacy and efficiency that may be
lacking in other enforcement provisions.
While there was considerable agreement amongst the substantial majority of those
interviewed that on-the-spot fines were a valuable OHS preventative tool, on some
issues there was a considerable divergence and contradiction of views. Despite this
diversity, it was possible to identify a number of unifying themes.
The majority of respondents, whether industry recipients or government inspectors,
supported the use of on-the-spot fines as an effective means of preventing injury and
disease in the workplace. Principal among the reasons offered in support of this view
were that such fines:
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acted as an effective means of "getting the safety message across";
are treated as a significant "blot on the record" and for this reason act as a
spur to prevention of injuries;
are treated as a performance indicator and a basis for judging the safety
performance of site/line managers (this refers mainly to larger companies);
have an impact on others than those directly fined, by virtue of a "ripple
effect", as word gets around as to the sorts of circumstances in which they
have been issued to industry peers; and
in some cases, act as a significant financial deterrent (essentially small firms
and individuals).
However, there was a perception that the positive preventative impact of on-the-spot
fines on corporate behaviour was likely to be primarily short term in nature.
Despite the generally positive views, not all respondents regarded on-the-spot fines as
having a positive effect on prevention. Here, much may depend upon the attitude and
culture of the individual firm. The most common criticism of such fines by industry
respondents was a perceived lack of consistency by the inspectorate in applying fines.
There was also widespread concern amongst industry respondents that the
administrative process associated with the use of fines is inadequate, and that
considerable improvement was required to ensure a viable "paper trail" existed.
Respondents from the construction industry, in particular, were far more sceptical
about the role of on-the-spot fines than respondents from other sectors. A significant
minority of the construction sector asserted that on-the-spot fines had no significant
preventative effect. In part, this was because of a perception that many of the breaches
were "technical" in nature, and consequently had little bearing on actual OHS
performance. Construction respondents also identified the issue of distinguishing
responsibility between sub-contractors and principal contractors as a problem for the
use of on-the-spot fines.
Most respondents from large companies considered the level of on-the-spot fines to be
insufficient to generate a significant financial deterrent, however those with relatively
sophisticated management systems, tended to use fines as a performance indicator. In
contrast, on-the-spot fines can have quite a dramatic impact on small business
operators, both financially and emotionally. Small business respondents uniformly
complained of a lack of advice, assistance and back-up support provided by the
inspectorate.
On-the-spot fines in areas other than OHS
On-the-spot fines are used in an expanding range of circumstances. There is a strong
and consistent view amongst government officials that they are a valuable policy
instrument which should be used to address a wide variety of regulatory breaches.
Many of the views expressed by respondents working in non-OHS fields resonated
with those expressed in the context of OHS. There were a number issues, however,
that received greater prominence in the non-OHS context. These were (i) the need for
adequate resources for the inspectorate; (ii) the importance of education as an adjunct
to fines; and (iii) the importance of informing the public about the power of inspectors
to impose on-the-spot fines.
On-the-spot fines within a broader OHS policy framework
There is a risk that if on-the-spot fines are not integrated with other OHS policies,
they may become either a substitute for more serious enforcement action in serious or
repeat cases, or serve to trivialise OHS offences through misuse. These risks can be
minimised by ensuring that inspectors gradually escalate from lowly to highly
coercive enforcement measures. Starting with advice and persuasion, inspectors have
at their disposal a progression of responses through compliance and prohibition
notices, leading ultimately to prosecution. On-the-spot fines may be located below
prosecution but above compliance notices.
However, their practical application may be more ambiguous, with practices varying
substantially between individual inspectors and different industry sectors. To improve
consistency, inspectors may be required to restrict their discretion (for example, as a
result of enforcement guidelines). Appropriate training for inspectors as to the
circumstances in which they can most appropriately be used may also assist in this
regard. Moreover, on-the-spot fines will be more successfully integrated with other
OHS policy instruments if they are used in conjunction with compliance notices. This
is to be preferred to using them sequentially or only when a compliance notice has
been ignored. In summary, the evidence described earlier is that on-the-spot fines can
indeed play an important role as a preventative tool, provided they are integrated
successfully into a graduated enforcement strategy.
Improving on-the-spot fines
Although it was beyond the project brief to provide specific policy recommendations,
a number of useful suggestions for improving the operation of on-the-spot fines
emerged from the field research.
Potential policy reforms that emerged from our data were that:
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a tiered system of on-the-spot fines might usefully be introduced under which
the most serious penalties merited a more substantial penalty than less
serious offences;
increased penalties might be imposed for repeat offences of the same type
within a given period;
on-the-spot fines could be used in conjunction with publicity;
authorities, in applying on-the-spot fines, consider embracing supporting
tactics such as targeted publicity, education and "blitzes";
authorities continue to make good OHS performance a requisite for tendering
for public contracts;
inspectors could be provided with clearer guidelines for issuing on-the-spot
fines;
it be clarified to whom on-the-spot fines should be issued;
inspectors ensure that recipients of on-the-spot fines are informed of the
system of review or appeals;
authorities consider limiting on-the-spot fines to circumstances of a clear-cut
nature;
increased resources could be provided to inspectors to enforce on-the-spot
fines and importantly to conduct follow-up visits; and
authorities consider creating comprehensive databases to record the
application of on-the-spot fines.
Terms of reference
This report was commissioned by the National Occupational Health and Safety
Commission.
Project objectives
To evaluate the impact of on-the-spot fines on prevention outcomes in Australian
workplaces. This will be assessed within the context of on-the-spot fines’ strategies in
other (non-OHS) regimes and the range of current OHS enforcement strategies in the
jurisdictions of NSW and the NT.
Project tasks
The project had three components:
(i) an analysis of the impact of on-the-spot fines in respect of OHS, especially for
small business;
(ii) an examination of on-the-spot fines in other regimes; and
(iii) contextualising on-the-spot fines within the broader framework of enforcement
tools available and used by OHS agencies in Australia.
In respect of project task (i), the consultant was required to develop a framework for
analysis/project methodology and design the interview schedules; conduct interviews
(both face to face and by telephone) with key stakeholders and employers/employees
in both large and small business in NSW, and by telephone in the NT; and undertake
desktop research re on-the-spot fines in OHS.
In respect of project task (ii), the consultant was required to undertake data
collection/analysis of research findings on on-the-spot fines in approximately 5 other
(non-OHS) regimes.
In respect of project task (iii), the consultant was required to undertake desktop
research on the range of enforcement strategies used (other than on-the-spot fines).
Note: in accordance with guidance provided by the Commission, the consultant was
required to place greater emphasis on project tasks (i).
Introduction
Although on-the-spot fines have been a common means of punishing minor offences
for some decades, their use in occupational health and safety (OHS) is of very recent
origin. Only two jurisdictions within Australia currently use such fines: New South
Wales (NSW), where they were introduced in 1991; and the Northern Territory (NT),
where they were introduced in 1996. A number of other jurisdictions (for example,
Tasmania) however, seem likely to introduce such fines in the near future and indeed
Queensland is currently in the process of doing so, whilst Victoria has been
deliberating over their use for some time.
Against this backdrop, many of the implications of applying on-the-spot fines in
respect of OHS are unclear. On the one hand they promise considerable
administrative convenience, efficiency, and an immediate impact on behaviour. On
the other hand, concerns are expressed about their appropriateness and effectiveness
as a preventive tool, about the dangers of their being used as a revenue raising
measure, about whether they may violate principles of due process and fairness, and
whether they will undermine the "criminality" of OHS sanctions in general. Yet such
measures, despite being relatively new and largely unexamined, are nevertheless
expanding rapidly.
There are a number of areas outside of the OHS context in which on-the-spot fines
have been used extensively. These include, for example, on-the-spot-fines for
speeding offences (and other road traffic infringements), defective vehicles,
inappropriate behaviour by taxi drivers, environmental pollution on industrial sites,
littering, illegal use of waterways, and minor offences in National Parks. These fines
are implemented by a broad range of government institutions, across all States and
Territories, which have built up considerable experience in their application. As such,
there may be valuable lessons to be learnt from these non-OHS jurisdictions.
The National Occupational Health and Safety Commission commissioned this report
to provide a "snapshot" of the experiences of businesses as recipients of on-the-spot
fines, in particular, their impact on preventative OHS behaviour. Despite some limited
international literature, no field research had been conducted on the role of on-thespot fines in Australian workplaces. This report aims to at least partly fill this void by
assessing the views of a broad range of industry representatives, government policy
makers, inspectors and other interested stakeholders. Particular attention was paid to
the impact of such fines on preventative activities and the experience of those
working in small business. The opinions and experiences of inspectors and policy
makers working in non-OHS fields were also comprehensively canvassed.
It is important to recognise, however, that the field research conducted in this project
is essentially qualitative in nature. No systematic or quantitative analysis of actual
changes in the OHS performance of fine recipients has been attempted. Such work is
beyond the scope of the project. Nevertheless, it is possible to glean useful insights
into the application of on-the-spot fines under the NSW and NT OHS regimes, in
particular, the way in which industry recipients responded to fines. It is also possible
to consider the contribution of on-the-spot fines within the broader framework of
prevention and enforcement tools available and used by OHS agencies in Australia.
Consistent with the terms of our consultancy brief, our main emphasis is on the
former of these tasks rather than the latter.
Part 1 - On-The-spot fines in the context
of OHS prevention
The first component of this project is to analyse the impact of on-the-spot fines on
prevention outcomes for jurisdictions which currently employ this approach. As such
fines are only applied in the OHS context in two jurisdictions in Australia, NSW and
NT, these two regimes naturally form the basis of our research.
Definitions and legislative framework
In broad terms, the main elements of an on-the-spot fine are that a notice (usually
called an infringement or penalty notice) is issued to a person alleged to have
committed an offence, and that person is invited to discharge their liability by
payment of a fixed monetary penalty. As such, the mechanism of on-the-spot fines is
a means of diverting offenders from the court system. Failure to pay may result in
court proceedings or direct enforcement of the penalty depending on the system
adopted. The most familiar example is the parking and speeding fine, but this
technique has now been extended to a variety of other areas including the regulation
of cyclists, private and commercial vehicles, littering, environment, licensing, dogs,
possession of cannabis, and registration and reporting requirements in business. By
the early 1990s, about 88 percent of offences in Victoria were dealt with by this
mechanism (Fox 1995).
Usually, the infringement concerned is relatively minor, and the alleged offender has
an opportunity to dispute the matter or raise matters outside the court, although they
are always able to require the matter to be dealt with by court proceedings if they so
choose. Arguably, an on-the-spot fine is particularly apposite where an individual,
rather than an organisation, is the alleged offender, because such a fine is likely to
have a much greater impact on the former than the latter. Such fines are commonly
seen as an immediate deterrent for breach of certain regulations. Their main
administrative virtue is the capacity to penalise minor infringements without having to
resort to lengthy criminal proceedings.
As indicated above, in respect of OHS, two Australian jurisdictions have now adopted
such fines (infringements for each of these jurisdictions are listed at Appendices 2 and
3). In NSW, inspectors have the power to issue penalty notices under the terms of S
51B (1) of the Occupational Health and Safety Act (1983). The maximum fine
available is $550 for employers and $55 for employees. The regulation provides for
an objection to the notice. No criminal liability is incurred if the fine is paid.
Penalty notices are only issued in situations where minor potential risks exist to
safety. They are not issued where an injury or illness occurs or where there is a high
potential risk. The bulk of fines have been imposed in the construction industry, on
plant operators and on electrical tradesmen (see Gunningham et al 1996, 198). The
main offences for which such notices are issued are highly specific offences (for
example, not wearing a safety hat, failing to erect hand rails) although some are also
issued for failing to comply with an improvement notice, not providing a safe system
of work, and not maintaining a safe system of work. Some 80 percent of recipients
have been employers and 20 percent, employees (Gunningham et al 1996, 198).
Approximately 10 percent of infringement notices in NSW are appealed, and of these,
about 20 percent are successful (Industry Commission 1995, 119).
In the NT, on-the-spot fines (work health infringement notices) were introduced in
1996 by virtue of the Work Health (Occupational Health and Safety) Regulations
under the Work Health Act 1986. The types of offence which might attract such a fine
are specified and include: operating or allowing an employee to operate certain
equipment such as a forklift without the appropriate licence; not wearing personal
protective equipment that has been provided; failure to notify accidents to the
authority; failure to use Residual Current Devices on portable and hand held electrical
equipment; and not fencing construction sites. On-the-spot fines are issued against
both employers and employees in appropriate circumstances. The level of fine is $250
for a body corporate and $50 for individuals.
There is an appeal process whereby individuals who consider the matter has been
unfairly dealt with can contact the Authority in writing with details of the
circumstances, and with a request that the notice be reviewed. The Authority will then
review the notice and advise the individual of the outcome. In the event that the
appeal to the Authority is rejected, the fine is still payable within the original 28 days.
If the fine is not paid within that period a courtesy letter will be sent, together with a
form on which the individual can elect to have the matter heard by the court process.
See further the On-The-Spot Fines Flow Chart, set out below.
An evaluation of the literature
Very little has been written about on-the-spot fines as they apply with respect to the
prevention of work-related injury and disease. This is understandable, since such fines
have only been introduced very recently in the OHS context, and only NSW has
substantial experience of how they work in practice. It is largely for this reason, that
the field research component of the present project, described below, is such an
important one.
Nevertheless, there is at least a limited literature which either addresses directly the
issue of on-the-spot fines, or which has a direct application to it. Within Australia, this
consists principally of recently written government reports, the most important of
which are the Industry Commission’s compendious report, Work, Health and Safety,
in 1995, and two more recent NSW reports (The McCallum Report 1997; and
Standing Committee on Law and Policy 1997). We also note and extrapolate from the
results of some important empirical work conducted in the United States (US), which
has not been replicated in Australia. Indeed, as the Industry Commission also noted,
"relatively little work has been done on the impact of enforcement in Australian
jurisdictions" (Industry Commission 1995, 401).
Turning first to the Australian literature, the (then) Industry Commission
recommended in favour of a system of on-the-spot fines for breaches of OHS
legislation, principally because overseas evidence suggests that administrative
penalties, such as on-the-spot fines, can create credible deterrence and can do so
quickly while minimising legal and administrative costs (Industry Commission 1995,
Appendix M). In particular, the Commission was influenced by the US experience,
where an administrative penalty system is used as a preventative strategy to reduce
workplace-related injury and disease.
In early 1997, the Review of the Occupational Health and Safety Act 1983 (NSW)
(The McCallum Report 1997, 95-96) concluded that on-the-spot fines provide a quick
response that addresses the immediate issue - what to do about a particular hazard and have proved to be an effective preventative tool that is administratively cost
effective. The Report expressed the view that there is even greater scope for
developing penalty notices in two respects: (i) the level of penalty; and (ii) the range
of offences created by the regulation. It was also recommended that the maximum
penalty under the Occupational Health and Safety (Penalty Notices) Regulation 1996
should be reviewed so as to ensure that a proper progression in enforcement steps is
available. Finally, the Report took the view that the scope of penalty notices should be
extended beyond highly specific activities so as to capture poor risk management
procedures (for example, failing to integrate staff training with appropriate safety
management systems). This would serve to achieve a greater emphasis upon better
systems of work for preventing workplace injury and disease, seen as being of central
importance to improved OHS.
Most recently, the Standing Committee on Law and Justice of the NSW Parliament,
issued the Interim Report of the Inquiry into Workplace Safety, in December 1997.
The Report did not focus specifically upon the issue of on-the-spot fines, apparently
because of a perception that the functioning of such fines in NSW was not arousing
significant criticism from either trade unions or employers, nor substantial public
comment, and as such, it did not merit further examination or comment by the
Standing Committee.
Turning to the international literature, the most sophisticated and detailed empirical
evidence which might have a bearing on the value of on-the-spot fines as a
preventative measure comes from the US, and in particular from a series of studies
conducted by Gray and Scholz (1990 & 1991) who conclude, on the basis of US data
on injuries and OHSA inspections, that even relatively small fines still achieved a
change in employer behaviour.
Such a conclusion may come as a surprise to proponents of strict direct cost models,
which predict that penalties will only change behaviour if the risk of detection x
anticipated penalty are greater than the cost of fixing up the problem (ie employers
will only respond if expected penalties are high enough to offset compliance costs). If
so, then it is unlikely that on-the-spot fines will act as an effective preventative
measure, because balancing benefits against costs, it is extremely unlikely that either
the likelihood of punishment nor the severity of punishment from an on-the-spot fine
of some hundreds of dollars could provide either: (i) a credible specific deterrent (the
deterrence of the individual through "after the fact inhibition" by tailoring the cost of
punishment to that individual to exceed the benefits of crime to that individual); or (ii)
a general deterrent ("inhibition in advance by threat or example" where the aim is to
deter others from committing the crime).
However, rejecting the direct cost view, the authors own very credible explanation of
their data is that it supports a bounded rationality view of corporate compliance:
According to the bounded rationality approach, even the best-intentioned citizens
have difficulty learning of the multiple demands that socially desirable laws impose
on them... Legal demands compete with a cacophony of political and commercial
advertising and other forms of persuasive communications that attempt to change the
citizen’s habitual behaviour. Citations by an enforcement agency help this process of
legal change by interpreting legal duties in concrete situations, pointing out the
discrepancies between the cited behaviour and (the agency’s interpretation of) legally
mandated social responsibilities. For a minority of individuals, avoiding future
penalties may be the only motivation capable of inducing compliant behaviour. But
for most citizens, a legal citation is likely to focus the citizen’s attention on a set of
habitual behaviours that the citizen may have not fully integrated with the citizen’s
own beliefs about relevant social responsibility. Like other forms of persuasive
communication, a citation is most likely to succeed in changing behaviour if it: (1)
gains attention; (2) points out discrepancies between behaviour and normative beliefs;
and (3) suggests compliant behaviour that is more consistent with beliefs and social
obligations. (Gray & Scholz 1990, 283, emphasis added, and see also Scholz 1985).
Although citations and immediate fines are not an integral part of many prevention
strategies outside of the US, the broader lesson may be that the very fact of an
inspector’s visit, coupled with some form of enforcement action (for example, an
improvement or prohibition notice or an on-the-spot fine) may have a significant
impact on behaviour and consequently on injury levels, even in circumstances where
compliance costs will likely exceed the economic benefits to the employer of
compliance. Essentially, this is because such action may serve to refocus employer
attention on safety and health problems they may previously have ignored or
overlooked. See also Braithwaite and Makkai (1991), who found in the case of
nursing home regulation that it was only in certain contexts, for a certain minority of
actors, that there was an association between compliance and perceived severity and
certainty of punishment (Gunningham & Johnstone 1998).
A related message from the research of Gray and Scholz is that brief inspections
which did not result in penalties had no injury reducing effects (Gray & Scholz 1993,
192). This is probably because "where there is no penalty there is no shock and
management’s attention is not attracted" and is consistent with the empirical research
of Hopkins within Australia (Hopkins 1995, 90). Hopkins reports that senior
management were normally unaware of visits by OHS inspectors where such visits
did not result in any formal notices. On the other hand, they were very much aware
when inspectors issued on-the-spot fines. Indeed, some of his respondents suggested
that on-the-spot fines could gain management attention just as much as major
prosecutions. This was not because the penalties were financially significant but more
because the mere fact of being penalised was a moral shock to the company. His
conclusion is that on-the-spot fines seem to be an efficient way of gaining
management attention, and consequently, encouraging preventative action.
The special difficulties of small business
It is arguable that OHS legislation and its preventative impact has failed to
accommodate to changes in the economy and in the nature of the workforce.
Essentially, the legislation of the 1980s was designed to address the main OHS issues
of that era, and in particular was primarily concerned with the problems of large
workplaces. One of the most important changes since that time has been the very
substantial increase in the proportion of small enterprises. Such firms are
characterised by: simple management structures (often just one general manager who
carries out all management duties); a high chance of failure; and significant rates of
serious and fatal injuries. The prevention of occupational injury and disease in these
firms is likely to require very different regulatory strategies from those which have
traditionally been applied to large enterprises.
Turning specifically to the problems which on-the-spot fines might present to small
business, a number of issues arise:
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offenders range from small proprietors running very small enterprises to very
large conglomerates, but OHS statutes, and on-the-spot fines in particular, do
little to address this complex issue. While they distinguish between individuals
and corporations, they do not distinguish between different sizes of
companies;
the imposition of on-the-spot fines is regressive in that it disadvantages some
people more than others because of the fixed nature of the fines and people’s
varying ability to pay. That is, the same amount of fine may have a greatly
different impact on different people because they take no account of a person’s
income or ability to pay;
given the particular disincentives to appeal (cost and time) the inspectorate
may in practice be both judge and jury unless some other mechanism for
challenge exists which facilitates complaints and objections being dealt with in
an informal and cost-free atmosphere;
even though there are significant rates of serious and fatal injury in the small
business sector overall, an individual firm will only infrequently encounter
such an accident. This may lead to an attitude of complacency on the part of
small business management that undermines the efficacy of on-the-spot fines;
and
different strategies may be required in regulating small employers (for
example, the role of information and the importance of appropriate vehicles
for disseminating information effectively, the role of targeted enforcement
campaigns, described below) and the role of on-the-spot fines must be
effectively integrated with the overall small-business strategy (see below).
An examination of experiences in NSW and the NT
An examination of experiences in NSW
and the NT
Until now, no independent evidence has been gathered about the impact of on-thespot fines on preventative OHS behaviour in Australia, and none of the relevant
regulatory agencies has to date conducted any evaluation of their impact. For the
purposes of the present study, the consultancy team conducted a series of interviews
with recipients of on-the-spot fines (ie both small and large employers and
employees), OHS inspectors, those involved in policy and administration of on-thespot fines, and representative bodies with a particular interest in this issue, such as
industry associations and union organisations. These interviews were obviously
restricted to respondents in NSW and the NT. They provided a useful snapshot of
opinion about the success of on-the-spot-fines in preventing workplace injury and
disease from a variety of perspectives, with particular emphasis on the experiences of
industry recipients.
It is important to emphasise at this point that the consultancy team did not attempt to
quantify or systematically investigate the impact of on-the-spot fines on the actual
OHS performance of industry recipients. Although a worthwhile and challenging
exercise, this task was beyond the scope of the current project. The basis of the
project was qualitative field research which, although falling somewhere short of
more definitive empirical research, nevertheless provides a comprehensive insight
into the practical application of on-the-spot fines.
The issue of prevention was the key issue addressed during the field research. The
success of on-the-spot fines, as an alternative and/or supplement to more complex
court prosecution, rests on their ability to change the behaviour of recipients such that
future accidents are less likely to occur. In this sense, the preventative effect can apply
to the specific breach which has been identified and fined, but is yet to cause an injury
or disease, or to a more broader improvement in health and safety awareness and
action. Thus prevention may be essentially short-term and specific in nature, or longterm and general. Either way, and irrespective of the particular motivations of
recipients, the fines will have led to a tangible improvement in OHS performance.
While there was considerable agreement amongst the substantial majority of those
interviewed as regards some issues surrounding the application of on-the-spot fines,
on others there was a considerable divergence and contradiction of views. Some
differences of opinion (for example, between employer representatives and trade
unions) were perhaps predictable, but there was also considerable disagreement
amongst employers themselves and indeed within some of the other main groups
interviewed.
Although the views of respondents, including recipients and inspectors, were many
and varied, and sometimes at odds with one another, it was possible to identify a
number of unifying themes. There was, for example, a strong consistency of opinion
when discussing the shortcomings of on-the-spot fines. Overall, however, there was a
much higher degree of commonality amongst the views of inspectors than that for the
views of recipients. As we will see, there was also significantly more consistency
when employers were disaggregated into construction industry employers and
employees on the one hand, and generalists (for example, manufacturing and retail
trades) on the other.
We note that for the most part, the opinions provided by our respondents, particularly
recipients of on-the-spot fines, and inspectors, are based upon their own experience,
and that they are generally unable to provide independent evidence to support their
perceptions concerning either the positive or negative impact of such fines.
In order to assess the efficacy of on-the-spot fines as a preventative tool on the basis
of the results of our interviews, it is necessary to make a distinction between the
construction sector and respondents in the manufacturing and retail sectors. As a
group, the former are clearly more pessimistic about the preventative role of on-thespot fines than the latter. In addition to this distinction, there are differences in
opinion between larger and smaller businesses. In light of these trends, our findings
are presented in the following categories: (A) general experiences; (B) the experience
of construction companies; (C) the experience of large companies; and (D) the
experience of small companies.
A. General experiences
Despite the considerable divergence of opinions between, on one hand, the
construction sector and the rest of industry, and on the other hand, industry recipients
and the inspectorate, in several cases the views expressed transcended such notional
groupings.
Prevention
1. The majority of industry respondents believed that on-the-spot fines were an
effective mechanism for preventing work-related injury and disease, although this
impact may be predominantly short-term in nature.
In general, industry respondents had a positive view of the impact of on-the-spot fines
in improving health and safety practices of industry. A variety of explanations were
offered, which are explored in more detail below. These included the fact that such
fines:




acted as an effective means of "getting the safety message across";
are treated as a significant "blot on the record" and for this reason act as a
spur to prevention of injuries;
are treated as a performance indicator and a basis for judging the safety
performance of site/line managers (this refers mainly to larger companies);
and
in some cases, act as a significant financial deterrent (essentially small firms
and individuals).
However, a considerable number of respondents viewed the impact of such fines
principally in terms of "bringing in to line" companies that consistently flouted the
rules as opposed to addressing their own operations (although this will have a positive
impact on those firms in compliance by assisting them to compete on an equal footing
in the marketplace with firms that have previously gained an advantage through the
neglect of OHS provisions). Further, some questioned the extent to which such fines
led to long term preventative strategies being adopted, believing that impact of the
immediate "slap on the wrist" provided by an on-the-spot fine, wears off over time.
A positive view of fines as a preventative measure was decidedly more prevalent
amongst firms from the manufacturing and retail sectors. The benefits of on-the-spot
fines were far less obvious to those involved in the construction industry. A
significant minority of the latter (as discussed below) regarded on-the-spot fines in a
negative light, with minimal preventative benefits.
2. A preventative, albeit indirect, effect of on-the-spot fines is their "ripple effect".
That is, many respondents agreed that once one firm in an area or trade had received
an on-the-spot fine, the "word got around" quickly, and other firms were effectively
influenced to reassess their own OHS performance, and adopt preventative measures,
at least as regards to the sort of circumstances in which the fine had been issued.
As one respondent put it: "we don’t hide the fact we’ve been caught out and its on the
public record ... the information gets passed around ... we have relationships with
other firms, they hear about it, so it does have a ripple effect". Similarly, a fine on one
site leads a firm to pay greater attention to similar OHS issues on its other sites,
including the need for appropriate prevention, and that this information is often
disseminated both informally and formally (for example, by the firm’s newsletter).
3. Most inspectors also spoke very positively about the preventative effects of on-thespot fines, regarding them as a very effective means of "getting the message across"
that safety has to be taken seriously, and that the legislation must be complied with.
In the view of inspectors, firms which have received fines were much more mindful
of safety issues for some time ahead, and the fact they were routinely issued in
conjunction with improvement or prohibition notices ensured that the safety
improvements required were followed through on. Some went further and argued that
"if on-the-spot fines were removed, then the level of safety would plummet ... fines
achieve a minimum standard of safety ... it gets their attention".
4. Trade unions also believed that on-the-spot fines have a preventive effect,
regarding them as "potentially one of the most positive ways of achieving better
OHS".
Trade union respondents spoke strongly in support of on-the-spot fines, considering,
in particular, that they had an important role in the prevention of workplace injury and
disease that cannot be replicated by other regulatory tools. The union view was that
there was an immediacy associated with fines that quickly brought about changes in
management behaviour.
Where trade union views differed from those of most other respondents, in particular
employers, was their opposition to fining individual employees. Their view was that
the prevention of workplace injury and disease is a management issue, systemic to
industrial practices, and therefore individual workers are not responsible for safety
outcomes. However, they conceded that in extreme cases, the employee too, might
appropriately be fined (for example, for wilful departures from safe practice). As one
respondent argued: "an employee only does what they are directed to do by
management so its not appropriate unless someone does something silly because the
employee is under supervision. But if you instruct an employee and they refuse to do
it ... in these circumstances it would be appropriate".
It should be noted that although a majority of employers held an opposing view, a
minority essentially agreed with the union position that employers as opposed to
employees should be fined.
Criticism
5. Despite these generally positive views, not all respondents regarded on-the-spot
fines as having a positive effect on prevention. Here, much may depend upon the
attitude and culture of the individual firm.
For those who are concerned both with their safety performance and their public
reputation, such fines may well serve to influence behaviour and have a preventative
effect, for the reasons indicated above. For others, for whom safety is a low priority,
their impact on their behaviour may be far less. As one industry respondent argued:
"it’s contingent on the culture of the organisation being fined ... if you have a mindset
of continuous improvement and rules for systems of safety then an on-the-spot fine
alerts you to what the rules are and then the culture kicks in to ensure you fix it, but if
you live for the moment you won’t change things in a month of Sundays ... once the
inspectors are out of the door, they continue on as before".
For the latter group, who lacked any commitment to OHS, the small amount of the
fine provided insufficient deterrent and such firms "just write the cheque and forget
it". This group was also inclined to view the fines cynically as "merely a revenue
raising device given by inspectors who have too much power".
6. The most common (and vehement) criticism of on-the-spot fines by industry
respondents was a perceived lack of consistency on the part of the inspectorate.
A lack of consistency in the issuing of fines may take several forms. For instance,
there may be perceived differences in the attitude and behaviour of the inspectorate,
with some inspectors relying far more on warnings than others. Alternatively, there
were perceived differences in the regularity of inspections at different types of
workplaces with some respondents considering, for example, that larger firms or sites
were more susceptible to inspections. On the other hand, one respondent claimed that
"the Homebush site was an unofficial no-go area for inspectors" (a claim that was
strongly refuted by NSW WorkCover, which stated that the reverse was true). A
number of respondents were therefore concerned that other sections of the industry
were "getting away with it" at the expense of those who substantially complied with
legislative responsibilities. A perception of inconsistency in the application of on-thespot fines may undermine their preventative impact by, in particular, facilitating an
attitude of resistance and resentment on the part of fine recipients, the very individuals
or firms who are required to change their behaviour.
It should be noted that although there was widespread criticism of a lack of
consistency on the part of inspectors, the individual claims that gave rise to these
perceptions were anecdotal, and in some cases, directly contradictory. Similarly, the
proposed solutions were also in many cases mutually exclusive. For instance, most
respondents would agree that inspectors should be provided with much clearer
guidelines for handling the issuing of fines, but at the same time, would like to see
inspectors given greater discretion to ignore, or at least not immediately fine, "purely
technical" breaches.
It is clear that very different perceptions of how on-the-spot fines are administered,
are held by recipients (particularly in construction) and inspectors. It is also clear that
much of the resentment, antagonism and resistance that on-the-spot fines generate on
the part of a significant minority, is directly linked to the specific practices of
individual inspectors, and that the allegedly arbitrary nature of many such fines is
closely linked with the widely differing practices of different inspectors. All this
raises an important policy question: whether much stricter guidelines concerning the
issue of such fines, and measures which ensure much more consistency between the
practices of different inspectors, would substantially mitigate many of the complaints
currently made by recipients about on-the-spot fines?
Potential means of mitigating the problems involved in the inspectorate’s perceived
unfair imposition of such fines might be clearer guidelines on the use of on-the-spot
fines (in addition to the current Inspectors Fixed Penalty Handbook) coupled with
more extensive training. It was also clear that inspectors not only had extremely wide
discretion in how they approached their jobs, but that there was an extremely wide
divergence in practice between the approaches of different inspectors. In the view of
one employer organisation representative: "it varies massively: on a scale of 1 to 100,
you will find individual inspectors on all parts of that range". Certainly the large
majority of our industry respondents reported widely different experiences depending
which particular inspector visited them on a particular occasion.
7. Another common criticism was the claim that, with the introduction of on-the-spot
fines, inspectors had substantially retreated from their traditional role of providing
advice and assistance to industry, and that this had undermined prevention.
The view that inspectors should be providing greater advice and assistance as to the
best means of preventing workplace injury and disease, and of complying with the
relevant legislation, was widespread amongst industry respondents. It was generally
acknowledged, however, that the inspectorate was significantly under-resourced.
Most considered that the level of follow-up after the issuing of a fine was inadequate,
with many reporting that inspectors did not even turn up to check if the fault had been
rectified, let alone assume an educative role. The level of information on an
infringement notice, for example, is extremely limited: very little guidance is given
about how to improve safety performance. Many respondents commented that the
lack of a meaningful educational role on the part of the inspectorate seriously
undermined the efficacy and acceptance of on-the-spot fines. This in turn could
potentially reinforce perceptions that they were indeed just another "revenue raising
device". (NSW WorkCover points out that it is not the role of the inspector to tell an
employer how to correct a safety problem, provide advice yes, but not shift the
responsibility from where it rightly belongs with the employer.)
8. A minority of industry respondents considered that some inspectors adopted a
"quota mentality" in the issuing of fines, irrespective of individual circumstances,
which undermined their confidence in on-the-spots fines as a genuinely preventative
measure.
It was the case that some recipients of on-the-spot fines regarded them as principally a
revenue-raising device. However, we were unable to identify any evidence to support
this view. On the contrary, no instructions are issued to inspectors as to how many
fines they should impose over a given period, and the number of such fines issued by
individual inspectors varies very substantially: a fact which is inconsistent with any
suggestion that there is a "quota mentality" or that there is any incentive or
encouragement to impose such fines for reasons unrelated to prevention of workrelated injury and disease.
Scope and application
9. There were widely differing perceptions between recipients of on-the-spot fines on
the one hand, and inspectors on the other, as to the circumstances in which they were
and should be issued. Industry respondents were sceptical of a potential negative
impact of technical breaches on prevention.
The inspectors we interviewed presented a very different view from that of the
recipients as to the circumstances in which they regarded it as appropriate to issue
such fines. For example, while some of our industry respondents cited what in
isolation, might indeed seem merely technical breaches, inspectors tended to locate
such breaches within a broader context, where they could be seen to indicate a more
serious lack of concern for safety (for example, it wasn’t just that the power tool
operator didn’t have a licence, but rather that he also was running an unsafe electrical
connection adjacent to a pool of water and that there was an electrocution risk). The
implication being that although a single technical breach may not result in injury or
disease, it was indicative of more general need to improve preventative measures.
However, both inspectors and recipients of on-the-spot fines agreed that the
circumstances under which they were issued and the inspectors’ attitude, were crucial
to their success. Significantly, most of the inspectors interviewed were at pains to
emphasise that mis-handling of on-the-spot fines could produce antagonism and could
be counterproductive. In their view, such antagonism could be substantially avoided
by issuing the fine face-to-face and, if necessary, returning the next day if its
immediate issue was likely to involve a heated exchange. It was equally important to
explain in some detail why an on-the-spot fine was being issued. As one WorkCover
senior inspector put it: "it’s about being up-front with people. If you explain why its
being given and how the infringement was a danger to OHS then generally you find
an acceptance and a change of attitude". In contrast, it was generally agreed that the
most negative reactions came from those who did not know they were going to
receive an on-the-spot fine until they received notification in the post, and that this
approach breeds resentment and antagonism.
10. Most respondents, both recipients and inspectors, took the view that on-the-spot
fines should be issued principally against employers and main contractors, noting that
it was upon these groups that the central duties are imposed by OHS legislation, and
that it is employers/contractors who have the resources and capacity to most
effectively prevent workplace injury and disease through their activities (for example,,
by training and supervising employees).
However, many respondents felt is was appropriate to fine an individual employee
directly, where the employee had been appropriately trained and educated and was
fully aware that they were breaching OHS legislation, yet chose to do so despite
warnings from the employer. For example, most employers argued that it was
impossible to supervise employees effectively at all times, and that where employees
chose not to wear safety equipment essential to prevention, then any fine should be
imposed directly on the employee rather than on the employer/contractor itself. As
one recipient put it: "we want them [employees] to wear safety glasses. The union
says you can’t make them do it but we can ... but its hard to enforce ... so fines to
employees would be effective here". Even large organisations which in general saw
management systems as a far more potent way of preventing injury and disease than
on-the-spot fines conceded that such fines "are one of the few useful vehicles for
disciplining employees for breaches of OHS duties".
11. Employer associations, and some smaller employers took a different view, arguing
that it is neither reasonable nor practical to expect an employer/contractor to supervise
workers effectively, and that workers are principally themselves responsible for their
own health and safety.
As one argued: "we employ specialists to do specialists’ work, but if they get it wrong
we cop the fine ... we can’t possibly know if the electrician is doing incorrect wiring,
yet they fine the main contractor, not the electrician". Others took a middle line: "I
agree I’m responsible but I expected the sub-contractor to be fined too".
12. Individual employees who are the recipients of on-the-spot fines, reported that the
direct financial impact of a $55 fine was very significant.
While some regarded this as "a fair cop", a majority, tended to have strong (and
negative) views about the impact of such fines on their behaviour. However, very few
felt that the level of fine should be adjusted to the financial circumstances of the
individual. Rather, as with a speeding fine, they believed the nature of the offence and
its severity should be the guiding factors in the level of fine, not the individual’s
background. As a matter of practice, fines against individual employees are rare
except in the construction industry.
Warnings and appeals
13. There was strong support amongst the overwhelming majority of respondents for
the use of warnings, backed up with the threat of an on-the-spot fine if the breach was
not rectified. This approach was considered particularly pertinent for addressing
"technical breaches" which posed no immediate threat to health and safety (,for
example, inadequate record keeping).
Despite this support for the use of warnings, their application on the ground has been
mixed. In the NT, inspectors consistently use warnings in the first instance and this
practice has been well received by industry. In NSW, their application, according to
the respondents in this study, has been far more uneven, possibly because of the
greater number of inspectors in the field. In particular, there is substantial confusion
over the use of improvement notices - several respondents were perplexed and angry
when a fine turned up in the mail after an improvement notice was issued, when they
believed they had seven days to correct the breach, in effect, a form of warning.
14. The large majority of respondents believed that there should be a right of appeal
for recipients of on-the-spot fines, and that it was preferable that this should be
informal, thereby avoiding the need to incur the expense and inconvenience of court
proceedings, which were felt to be disproportionate to the level of fine itself.
The current model under the NSW WorkCover Penalty (Infringement) Notice system,
whereby representations may be made in writing to the Manager (Review Section)
NSW Police Infringements Bureau, meets this requirement of informality. The NSW
Police Infringements Bureau are contracted by most government agencies in NSW to
collect fines from offenders, arising from an infringement notice. However, there is a
mixed level of awareness in industry about the availability of the appeals process. As
one respondent put it: "those in the know can get their fines reviewed, and the rest
miss out". Even those who are aware of the appeals process may not initiate
proceedings because: (a) they feel that the technical nature of the breach leaves them
with little room to argue their case; and/or (b) they fear that the act of appealing itself
may invite unwarranted attention from the inspectorate. One respondent who appealed
in writing received no response from the authorities until he followed up with a phone
call, at which time he claimed he was told to "pay-up or shut-up" - this was perhaps
an extreme case, but indicative of a more general jaundiced view of the appeals
process.
Administration
15. There was widespread concern amongst industry respondents that the
administrative process associated with the use of fines is inadequate, and that
considerable improvement was required to ensure a viable "paper trail" existed.
Several respondents complained that they were unaware that a fine had been issued to
one of their employees or sub-contractors until it had "appeared in the mail". It was
claimed that, in many instances, employees issued with fines that were payable by the
company simply "threw away the evidence". The net effect was that managers found
it very difficult to correct a problem, and then adopt better preventative measures, if
they were unable to identify the offender or the circumstances of the breach. There
was concern amongst industry respondents that there appeared to be no decipherable
paper trail that managers could subsequently follow. One consistent complaint from
industry was that the actual fine’s notice contains only two lines in which the
inspector writes the reasons for issuing the fine. Many regarded this as inadequate and
suggested that inspectors could avoid proper justification for their decision by writing
a very short and general explanation on the notice.
An examination of experiences in NSW
and the NT
Until now, no independent evidence has been gathered about the impact of on-thespot fines on preventative OHS behaviour in Australia, and none of the relevant
regulatory agencies has to date conducted any evaluation of their impact. For the
purposes of the present study, the consultancy team conducted a series of interviews
with recipients of on-the-spot fines (ie both small and large employers and
employees), OHS inspectors, those involved in policy and administration of on-thespot fines, and representative bodies with a particular interest in this issue, such as
industry associations and union organisations. These interviews were obviously
restricted to respondents in NSW and the NT. They provided a useful snapshot of
opinion about the success of on-the-spot-fines in preventing workplace injury and
disease from a variety of perspectives, with particular emphasis on the experiences of
industry recipients.
It is important to emphasise at this point that the consultancy team did not attempt to
quantify or systematically investigate the impact of on-the-spot fines on the actual
OHS performance of industry recipients. Although a worthwhile and challenging
exercise, this task was beyond the scope of the current project. The basis of the
project was qualitative field research which, although falling somewhere short of
more definitive empirical research, nevertheless provides a comprehensive insight
into the practical application of on-the-spot fines.
The issue of prevention was the key issue addressed during the field research. The
success of on-the-spot fines, as an alternative and/or supplement to more complex
court prosecution, rests on their ability to change the behaviour of recipients such that
future accidents are less likely to occur. In this sense, the preventative effect can apply
to the specific breach which has been identified and fined, but is yet to cause an injury
or disease, or to a more broader improvement in health and safety awareness and
action. Thus prevention may be essentially short-term and specific in nature, or longterm and general. Either way, and irrespective of the particular motivations of
recipients, the fines will have led to a tangible improvement in OHS performance.
While there was considerable agreement amongst the substantial majority of those
interviewed as regards some issues surrounding the application of on-the-spot fines,
on others there was a considerable divergence and contradiction of views. Some
differences of opinion (for example, between employer representatives and trade
unions) were perhaps predictable, but there was also considerable disagreement
amongst employers themselves and indeed within some of the other main groups
interviewed.
Although the views of respondents, including recipients and inspectors, were many
and varied, and sometimes at odds with one another, it was possible to identify a
number of unifying themes. There was, for example, a strong consistency of opinion
when discussing the shortcomings of on-the-spot fines. Overall, however, there was a
much higher degree of commonality amongst the views of inspectors than that for the
views of recipients. As we will see, there was also significantly more consistency
when employers were disaggregated into construction industry employers and
employees on the one hand, and generalists (for example, manufacturing and retail
trades) on the other.
We note that for the most part, the opinions provided by our respondents, particularly
recipients of on-the-spot fines, and inspectors, are based upon their own experience,
and that they are generally unable to provide independent evidence to support their
perceptions concerning either the positive or negative impact of such fines.
In order to assess the efficacy of on-the-spot fines as a preventative tool on the basis
of the results of our interviews, it is necessary to make a distinction between the
construction sector and respondents in the manufacturing and retail sectors. As a
group, the former are clearly more pessimistic about the preventative role of on-thespot fines than the latter. In addition to this distinction, there are differences in
opinion between larger and smaller businesses. In light of these trends, our findings
are presented in the following categories: (A) general experiences; (B) the experience
of construction companies; (C) the experience of large companies; and (D) the
experience of small companies.
A. General experiences
Despite the considerable divergence of opinions between, on one hand, the
construction sector and the rest of industry, and on the other hand, industry recipients
and the inspectorate, in several cases the views expressed transcended such notional
groupings.
Prevention
1. The majority of industry respondents believed that on-the-spot fines were an
effective mechanism for preventing work-related injury and disease, although this
impact may be predominantly short-term in nature.
In general, industry respondents had a positive view of the impact of on-the-spot fines
in improving health and safety practices of industry. A variety of explanations were
offered, which are explored in more detail below. These included the fact that such
fines:




acted as an effective means of "getting the safety message across";
are treated as a significant "blot on the record" and for this reason act as a
spur to prevention of injuries;
are treated as a performance indicator and a basis for judging the safety
performance of site/line managers (this refers mainly to larger companies);
and
in some cases, act as a significant financial deterrent (essentially small firms
and individuals).
However, a considerable number of respondents viewed the impact of such fines
principally in terms of "bringing in to line" companies that consistently flouted the
rules as opposed to addressing their own operations (although this will have a positive
impact on those firms in compliance by assisting them to compete on an equal footing
in the marketplace with firms that have previously gained an advantage through the
neglect of OHS provisions). Further, some questioned the extent to which such fines
led to long term preventative strategies being adopted, believing that impact of the
immediate "slap on the wrist" provided by an on-the-spot fine, wears off over time.
A positive view of fines as a preventative measure was decidedly more prevalent
amongst firms from the manufacturing and retail sectors. The benefits of on-the-spot
fines were far less obvious to those involved in the construction industry. A
significant minority of the latter (as discussed below) regarded on-the-spot fines in a
negative light, with minimal preventative benefits.
2. A preventative, albeit indirect, effect of on-the-spot fines is their "ripple effect".
That is, many respondents agreed that once one firm in an area or trade had received
an on-the-spot fine, the "word got around" quickly, and other firms were effectively
influenced to reassess their own OHS performance, and adopt preventative measures,
at least as regards to the sort of circumstances in which the fine had been issued.
As one respondent put it: "we don’t hide the fact we’ve been caught out and its on the
public record ... the information gets passed around ... we have relationships with
other firms, they hear about it, so it does have a ripple effect". Similarly, a fine on one
site leads a firm to pay greater attention to similar OHS issues on its other sites,
including the need for appropriate prevention, and that this information is often
disseminated both informally and formally (for example, by the firm’s newsletter).
3. Most inspectors also spoke very positively about the preventative effects of on-thespot fines, regarding them as a very effective means of "getting the message across"
that safety has to be taken seriously, and that the legislation must be complied with.
In the view of inspectors, firms which have received fines were much more mindful
of safety issues for some time ahead, and the fact they were routinely issued in
conjunction with improvement or prohibition notices ensured that the safety
improvements required were followed through on. Some went further and argued that
"if on-the-spot fines were removed, then the level of safety would plummet ... fines
achieve a minimum standard of safety ... it gets their attention".
4. Trade unions also believed that on-the-spot fines have a preventive effect,
regarding them as "potentially one of the most positive ways of achieving better
OHS".
Trade union respondents spoke strongly in support of on-the-spot fines, considering,
in particular, that they had an important role in the prevention of workplace injury and
disease that cannot be replicated by other regulatory tools. The union view was that
there was an immediacy associated with fines that quickly brought about changes in
management behaviour.
Where trade union views differed from those of most other respondents, in particular
employers, was their opposition to fining individual employees. Their view was that
the prevention of workplace injury and disease is a management issue, systemic to
industrial practices, and therefore individual workers are not responsible for safety
outcomes. However, they conceded that in extreme cases, the employee too, might
appropriately be fined (for example, for wilful departures from safe practice). As one
respondent argued: "an employee only does what they are directed to do by
management so its not appropriate unless someone does something silly because the
employee is under supervision. But if you instruct an employee and they refuse to do
it ... in these circumstances it would be appropriate".
It should be noted that although a majority of employers held an opposing view, a
minority essentially agreed with the union position that employers as opposed to
employees should be fined.
Criticism
5. Despite these generally positive views, not all respondents regarded on-the-spot
fines as having a positive effect on prevention. Here, much may depend upon the
attitude and culture of the individual firm.
For those who are concerned both with their safety performance and their public
reputation, such fines may well serve to influence behaviour and have a preventative
effect, for the reasons indicated above. For others, for whom safety is a low priority,
their impact on their behaviour may be far less. As one industry respondent argued:
"it’s contingent on the culture of the organisation being fined ... if you have a mindset
of continuous improvement and rules for systems of safety then an on-the-spot fine
alerts you to what the rules are and then the culture kicks in to ensure you fix it, but if
you live for the moment you won’t change things in a month of Sundays ... once the
inspectors are out of the door, they continue on as before".
For the latter group, who lacked any commitment to OHS, the small amount of the
fine provided insufficient deterrent and such firms "just write the cheque and forget
it". This group was also inclined to view the fines cynically as "merely a revenue
raising device given by inspectors who have too much power".
6. The most common (and vehement) criticism of on-the-spot fines by industry
respondents was a perceived lack of consistency on the part of the inspectorate.
A lack of consistency in the issuing of fines may take several forms. For instance,
there may be perceived differences in the attitude and behaviour of the inspectorate,
with some inspectors relying far more on warnings than others. Alternatively, there
were perceived differences in the regularity of inspections at different types of
workplaces with some respondents considering, for example, that larger firms or sites
were more susceptible to inspections. On the other hand, one respondent claimed that
"the Homebush site was an unofficial no-go area for inspectors" (a claim that was
strongly refuted by NSW WorkCover, which stated that the reverse was true). A
number of respondents were therefore concerned that other sections of the industry
were "getting away with it" at the expense of those who substantially complied with
legislative responsibilities. A perception of inconsistency in the application of on-thespot fines may undermine their preventative impact by, in particular, facilitating an
attitude of resistance and resentment on the part of fine recipients, the very individuals
or firms who are required to change their behaviour.
It should be noted that although there was widespread criticism of a lack of
consistency on the part of inspectors, the individual claims that gave rise to these
perceptions were anecdotal, and in some cases, directly contradictory. Similarly, the
proposed solutions were also in many cases mutually exclusive. For instance, most
respondents would agree that inspectors should be provided with much clearer
guidelines for handling the issuing of fines, but at the same time, would like to see
inspectors given greater discretion to ignore, or at least not immediately fine, "purely
technical" breaches.
It is clear that very different perceptions of how on-the-spot fines are administered,
are held by recipients (particularly in construction) and inspectors. It is also clear that
much of the resentment, antagonism and resistance that on-the-spot fines generate on
the part of a significant minority, is directly linked to the specific practices of
individual inspectors, and that the allegedly arbitrary nature of many such fines is
closely linked with the widely differing practices of different inspectors. All this
raises an important policy question: whether much stricter guidelines concerning the
issue of such fines, and measures which ensure much more consistency between the
practices of different inspectors, would substantially mitigate many of the complaints
currently made by recipients about on-the-spot fines?
Potential means of mitigating the problems involved in the inspectorate’s perceived
unfair imposition of such fines might be clearer guidelines on the use of on-the-spot
fines (in addition to the current Inspectors Fixed Penalty Handbook) coupled with
more extensive training. It was also clear that inspectors not only had extremely wide
discretion in how they approached their jobs, but that there was an extremely wide
divergence in practice between the approaches of different inspectors. In the view of
one employer organisation representative: "it varies massively: on a scale of 1 to 100,
you will find individual inspectors on all parts of that range". Certainly the large
majority of our industry respondents reported widely different experiences depending
which particular inspector visited them on a particular occasion.
7. Another common criticism was the claim that, with the introduction of on-the-spot
fines, inspectors had substantially retreated from their traditional role of providing
advice and assistance to industry, and that this had undermined prevention.
The view that inspectors should be providing greater advice and assistance as to the
best means of preventing workplace injury and disease, and of complying with the
relevant legislation, was widespread amongst industry respondents. It was generally
acknowledged, however, that the inspectorate was significantly under-resourced.
Most considered that the level of follow-up after the issuing of a fine was inadequate,
with many reporting that inspectors did not even turn up to check if the fault had been
rectified, let alone assume an educative role. The level of information on an
infringement notice, for example, is extremely limited: very little guidance is given
about how to improve safety performance. Many respondents commented that the
lack of a meaningful educational role on the part of the inspectorate seriously
undermined the efficacy and acceptance of on-the-spot fines. This in turn could
potentially reinforce perceptions that they were indeed just another "revenue raising
device". (NSW WorkCover points out that it is not the role of the inspector to tell an
employer how to correct a safety problem, provide advice yes, but not shift the
responsibility from where it rightly belongs with the employer.)
8. A minority of industry respondents considered that some inspectors adopted a
"quota mentality" in the issuing of fines, irrespective of individual circumstances,
which undermined their confidence in on-the-spots fines as a genuinely preventative
measure.
It was the case that some recipients of on-the-spot fines regarded them as principally a
revenue-raising device. However, we were unable to identify any evidence to support
this view. On the contrary, no instructions are issued to inspectors as to how many
fines they should impose over a given period, and the number of such fines issued by
individual inspectors varies very substantially: a fact which is inconsistent with any
suggestion that there is a "quota mentality" or that there is any incentive or
encouragement to impose such fines for reasons unrelated to prevention of workrelated injury and disease.
Scope and application
9. There were widely differing perceptions between recipients of on-the-spot fines on
the one hand, and inspectors on the other, as to the circumstances in which they were
and should be issued. Industry respondents were sceptical of a potential negative
impact of technical breaches on prevention.
The inspectors we interviewed presented a very different view from that of the
recipients as to the circumstances in which they regarded it as appropriate to issue
such fines. For example, while some of our industry respondents cited what in
isolation, might indeed seem merely technical breaches, inspectors tended to locate
such breaches within a broader context, where they could be seen to indicate a more
serious lack of concern for safety (for example, it wasn’t just that the power tool
operator didn’t have a licence, but rather that he also was running an unsafe electrical
connection adjacent to a pool of water and that there was an electrocution risk). The
implication being that although a single technical breach may not result in injury or
disease, it was indicative of more general need to improve preventative measures.
However, both inspectors and recipients of on-the-spot fines agreed that the
circumstances under which they were issued and the inspectors’ attitude, were crucial
to their success. Significantly, most of the inspectors interviewed were at pains to
emphasise that mis-handling of on-the-spot fines could produce antagonism and could
be counterproductive. In their view, such antagonism could be substantially avoided
by issuing the fine face-to-face and, if necessary, returning the next day if its
immediate issue was likely to involve a heated exchange. It was equally important to
explain in some detail why an on-the-spot fine was being issued. As one WorkCover
senior inspector put it: "it’s about being up-front with people. If you explain why its
being given and how the infringement was a danger to OHS then generally you find
an acceptance and a change of attitude". In contrast, it was generally agreed that the
most negative reactions came from those who did not know they were going to
receive an on-the-spot fine until they received notification in the post, and that this
approach breeds resentment and antagonism.
10. Most respondents, both recipients and inspectors, took the view that on-the-spot
fines should be issued principally against employers and main contractors, noting that
it was upon these groups that the central duties are imposed by OHS legislation, and
that it is employers/contractors who have the resources and capacity to most
effectively prevent workplace injury and disease through their activities (for example,,
by training and supervising employees).
However, many respondents felt is was appropriate to fine an individual employee
directly, where the employee had been appropriately trained and educated and was
fully aware that they were breaching OHS legislation, yet chose to do so despite
warnings from the employer. For example, most employers argued that it was
impossible to supervise employees effectively at all times, and that where employees
chose not to wear safety equipment essential to prevention, then any fine should be
imposed directly on the employee rather than on the employer/contractor itself. As
one recipient put it: "we want them [employees] to wear safety glasses. The union
says you can’t make them do it but we can ... but its hard to enforce ... so fines to
employees would be effective here". Even large organisations which in general saw
management systems as a far more potent way of preventing injury and disease than
on-the-spot fines conceded that such fines "are one of the few useful vehicles for
disciplining employees for breaches of OHS duties".
11. Employer associations, and some smaller employers took a different view, arguing
that it is neither reasonable nor practical to expect an employer/contractor to supervise
workers effectively, and that workers are principally themselves responsible for their
own health and safety.
As one argued: "we employ specialists to do specialists’ work, but if they get it wrong
we cop the fine ... we can’t possibly know if the electrician is doing incorrect wiring,
yet they fine the main contractor, not the electrician". Others took a middle line: "I
agree I’m responsible but I expected the sub-contractor to be fined too".
12. Individual employees who are the recipients of on-the-spot fines, reported that the
direct financial impact of a $55 fine was very significant.
While some regarded this as "a fair cop", a majority, tended to have strong (and
negative) views about the impact of such fines on their behaviour. However, very few
felt that the level of fine should be adjusted to the financial circumstances of the
individual. Rather, as with a speeding fine, they believed the nature of the offence and
its severity should be the guiding factors in the level of fine, not the individual’s
background. As a matter of practice, fines against individual employees are rare
except in the construction industry.
Warnings and appeals
13. There was strong support amongst the overwhelming majority of respondents for
the use of warnings, backed up with the threat of an on-the-spot fine if the breach was
not rectified. This approach was considered particularly pertinent for addressing
"technical breaches" which posed no immediate threat to health and safety (,for
example, inadequate record keeping).
Despite this support for the use of warnings, their application on the ground has been
mixed. In the NT, inspectors consistently use warnings in the first instance and this
practice has been well received by industry. In NSW, their application, according to
the respondents in this study, has been far more uneven, possibly because of the
greater number of inspectors in the field. In particular, there is substantial confusion
over the use of improvement notices - several respondents were perplexed and angry
when a fine turned up in the mail after an improvement notice was issued, when they
believed they had seven days to correct the breach, in effect, a form of warning.
14. The large majority of respondents believed that there should be a right of appeal
for recipients of on-the-spot fines, and that it was preferable that this should be
informal, thereby avoiding the need to incur the expense and inconvenience of court
proceedings, which were felt to be disproportionate to the level of fine itself.
The current model under the NSW WorkCover Penalty (Infringement) Notice system,
whereby representations may be made in writing to the Manager (Review Section)
NSW Police Infringements Bureau, meets this requirement of informality. The NSW
Police Infringements Bureau are contracted by most government agencies in NSW to
collect fines from offenders, arising from an infringement notice. However, there is a
mixed level of awareness in industry about the availability of the appeals process. As
one respondent put it: "those in the know can get their fines reviewed, and the rest
miss out". Even those who are aware of the appeals process may not initiate
proceedings because: (a) they feel that the technical nature of the breach leaves them
with little room to argue their case; and/or (b) they fear that the act of appealing itself
may invite unwarranted attention from the inspectorate. One respondent who appealed
in writing received no response from the authorities until he followed up with a phone
call, at which time he claimed he was told to "pay-up or shut-up" - this was perhaps
an extreme case, but indicative of a more general jaundiced view of the appeals
process.
Administration
15. There was widespread concern amongst industry respondents that the
administrative process associated with the use of fines is inadequate, and that
considerable improvement was required to ensure a viable "paper trail" existed.
Several respondents complained that they were unaware that a fine had been issued to
one of their employees or sub-contractors until it had "appeared in the mail". It was
claimed that, in many instances, employees issued with fines that were payable by the
company simply "threw away the evidence". The net effect was that managers found
it very difficult to correct a problem, and then adopt better preventative measures, if
they were unable to identify the offender or the circumstances of the breach. There
was concern amongst industry respondents that there appeared to be no decipherable
paper trail that managers could subsequently follow. One consistent complaint from
industry was that the actual fine’s notice contains only two lines in which the
inspector writes the reasons for issuing the fine. Many regarded this as inadequate and
suggested that inspectors could avoid proper justification for their decision by writing
a very short and general explanation on the notice.
B. The construction industry
Although the construction industry is but one of many sectors exposed to on-the-spot
fines, in fact it accounts for the vast majority of fines issued. The transient nature of
the industry, both in terms of different construction sites and the high turnover of
staff, provide it with distinguishing characteristics that have negative implications for
health and safety practice. Perhaps unsurprisingly, the attitudes of respondents from
the construction sector, as a whole, contrasted with those from other sectors.
Less effective
16. In the construction industry, the general view of the effectiveness of on-the-spot
fines in preventing injuries was much less positive than in other industry sectors.
Although some respondents made the same sorts of points as have been made above,
this group was much smaller than the majority who, in manufacturing and retail,
endorsed the use of such fines.
A significant minority of the construction sector asserted that on-the-spot fines had no
significant preventative effect. This minority comprised principally (some) employers
and employees and the relevant employer association. The latter acknowledged that
the impact of such fines might differ for different types of firms, and that they might
at least have a short term effect, but argued that in the case of the construction
industry at least, they had had no demonstrable impact on levels of injury or on
fatalities. Some construction inspectors (in contrast to their generalist colleagues) also
expressed reservations about the effectiveness of on-the-spot fines in the construction
context.
In NSW between 80 percent and 95 percent of all such fines are imposed in the
construction sector. This may be in part because of the very serious OHS hazards
presented by that industry, and in part because the problems of OHS in construction
reflect other characteristics of the industry: the transient nature of many hazards; the
high proportion of contractors and sub-contractors; and the dominant "macho"
cultural attitude. For all these reasons, the use of on-the-spot fines is prevalent in
construction in a way that it is not in other industries. The fact that on-the-spot fines
repeatedly are viewed far more negatively, and regarded as far less effective, in
preventive terms, in the very industry in which the large majority of them are issued,
may be a cause for concern.
In the construction industry, however, as was pointed out in the interviews, one is
comparing deeply flawed alternatives. For example, going to court to achieve a
criminal conviction may take some two years, by which time the project is long
completed and the project team dismantled and working elsewhere. In this context,
on-the-spot fines at least have the virtue of being quick and inexpensive.
It should be noted, also, that construction sector respondents in the NT were more
favourably disposed towards the use of on-the-spot fines than their NSW counterparts.
There was a fair level of consensus amongst these companies that while the initial
introduction of such fines in the NT had been a somewhat "rocky" process, with what
many considered an excessive exuberance on the part of inspectors, in the last year or
so "many of the bugs had been ironed out of the system". There are several possible
reasons for the higher levels of industry support exhibited in the NT. These include:
(i) a smaller, more intimate industry sector which allows inspectors to better build a
relationship of trust with contractors; (ii) a greater use of warnings by inspectors; and
(iii) the confinement of fines to a narrower range of breaches. The construction
industry, through inter alia its local trade association, has also had considerable input
into policy discussions with the NT authorities.
17. Even a small number of construction companies with a high commitment to OHS
did not regard on-the-spot fines as having a preventative effect.
One large firm which sought to address health and safety concerns, principally
through the implementation of a sophisticated safety management system, reported
that on-the-spot fines had very little preventative effect because improving the system
was what was important to overall safety performance. As their manager put it: "our
company prides itself on an accredited OHS system and tries to maintain a good
safety record, so fines are not a driving force ... they are no more than a secondary
motivation ... we are trying to come to terms with putting in a system to achieve OHS
goals. That’s a major exercise. In an industry where the dollar drives performance,
where building workers are not properly trained, with young inadequately trained
supervisors, we are trying to come to terms with substantially improving certainty and
predicability through an OHS management system ... on-the-spot fines are a minor
aspect of the total picture".
Lack of trust
18. The major reason given for negative perceptions of fines in the construction sector
was that they antagonised recipients, because the fines are often issued in
circumstances which are merely technical breaches and which do not involve any
serious risk to health and safety, and consequently had a minimal preventative effect.
It was common for recipients in the construction industry (and their industry
associations) to suggest that many such fines were issued for trivial breaches, that
individual employers were being picked on, or that some inspectors "had their book
our before they even came on site". This, in the view of many, alienated those who
were doing their best about OHS in difficult circumstances.
Moreover, it was claimed that the culture of the construction sector, with its transitory
nature, and the fact that it is "driven by the bottom line", made it difficult for
inspectors to develop relations of trust (because sites are constantly changing and
personnel move on so quickly). This further exacerbated the perceived limited impact
of on-the-spot fines. It was also noted by a number of respondents that some firms in
the construction industry now simply factored into tender bids, the likelihood that
they would receive a certain number of on-the-spot fines during the course of a
project, and so merely wrote these off as a necessary business cost rather than seeking
to improve their safety performance.
19. Where recipients of fines are principal contractors in the construction sector, but
the breach was caused by an employee or sub-contractor, they often felt frustrated and
unfairly treated.
Although all principal contractors agreed that they had a general duty of care to
ensure health and safety on a construction site, many argued that it was beyond their
capacity to monitor the work of every sub-contractor and worker. As one respondent
put it: "we can provide them with safety helmets, but we can’t make them wear
them". It was further argued that in many cases, particularly where specialised
contractors such as electricians are employed, because of the technical nature of the
activity, they are simply not in a position to know if a breach has occurred or not.
There was a general consensus amongst those who objected to paying the fines of
sub-contractors and employees that if the principal contractor could demonstrate that
they had adequately discharged their health and safety duties, they should not be
fined.
It was also argued that often the fine is imposed on the principal contractor because
the actual offender (for example, the person responsible for removing a guard rail) is
too hard for the inspector to identify. This practice in itself generated much
antagonism from contractors. As one of them put it: "we contract experts ... Yet not
only are main contractors legally responsible for the behaviour of their subcontractors, many of them, according to our respondents, also pass on the fines to
those sub-contractors whom they regard as responsible for the issue of a particular
fine, with the result that the fine does, ultimately, impact directly on those responsible
for an OHS breach".
Union influence
20. Many construction employers, particularly in the NT, consider that inspectors are
unduly influenced by union officials "dobbing-in" potential breaches. There is a
widespread belief amongst employers that union-initiated site visits receive priority
over other inspections, and that unions may be using this as a device to harass hostile
management, rather than as a legitimate preventative device.
It should be noted, however, that inspectors categorically denied that union whistle
blowing receives priority attention, although they do generally acknowledge that
unions have had a significant impact in bringing to their attention sub-standard
industry practices. Some employers, too, acknowledge that union involvement in
health and safety issues on construction sites has raised the overall OHS awareness
and performance of the industry.
C. The experience of large companies
Larger companies have more resources available to direct at health and safety issues,
which is reflected in the use of specialist OHS officers and more sophisticated
management systems. However, larger organisations find it more difficult to keep
track of OHS breaches by individual staff.
Limited financial deterrence
21. Most respondents from larger enterprises regarded the level of the fine itself as
being insufficient to have a serious impact as a financial deterrent. However, many
respondents from larger companies treated the imposition of such a fine as a
significant "blot on the record", and therefore it acts as a spur to improve prevention.
The fact that in the case of larger organisations, the actual penalty was
inconsequential, and most unlikely to have a direct preventative effect, is not the end
of the story. In companies that valued their reputation with the inspectorate and with
the wider community, such fines were said to be effective in generating improved
safety performance, because of their potential impact on the company’s reputation. As
we indicate subsequently, this effect could be enhanced if such fines were given
greater publicity (though we note that because they do not formally constitute a
conviction, they cannot be used in a subsequent court case as evidence of previous
inadequate safety performance).
Similarly, some larger firms treated the number of on-the-spot fines they received as a
performance indicator, with senior management regarding them as a measure of how
well a project was being handled in OHS terms. Thus a series of such fines would
lead senior management to draw adverse implications about the competence of project
management. For example, a number of respondents indicated that senior
management usually took the fine as an indication that lower level management had
fallen down on safety performance. As one respondent put it, "the last thing a
manager wants is to expose himself as unable to control the job ... higher management
would take notice and we don’t need this". Another commented that "a fine did send
messages effectively down the line to management. It went to the boss who put a
rocket up the section concerned, which in turn put a rocket up the contractor".
Note: In some large construction companies, the accumulative impact of many fines
had a much greater financial impact than that experienced by companies in other
sectors. One company, for example, claimed annual fines of approximately $12,000.
Although this still represents only a modest percentage of overall business costs, it
was sufficient for management to express concern.
22. Much of the effectiveness of on-the-spot fines in preventing workplace injury and
disease depends upon to whom the fine is issued and whether it ever gets to the
attention of senior management.
A large element of the effectiveness of on-the-spot fines for larger firms may depend
upon whom notices are served, a particular danger being that if the notice is served on
lower management then (either by intent or otherwise) it never gets to the attention of
senior management and for this reason has little impact on safety policy (though it
may still influence the practices of the recipient). As one inspector reported: "it was
only when I finally got the general manager’s name, put their name on it and faxed it
to them, that things changed ... within a week, all of a sudden, we got action".
The lesson some inspectors at least, have drawn from this, is that "it does not go back
to head office unless you issue it to the general manager". Others felt that it was also
important to target the relevant site manager. Some individual (lower level) managers
and safety officers also reported that they found on-the-spot fines a useful lever
through which to draw senior management attention to OHS and to get greater
resources for prevention of injury and disease. Indeed, some repeatedly invited an
inspector to impose an on-the-spot fine for this reason. Similarly, one inspector
confirmed that "many safety officers will steer you to the problem ... you issue a
notice and they use this as leverage when they go back to the boss".
D. The experience of small business
The experience of smaller firms with on-the-spot fines differs dramatically from that
of larger companies. Most have little ongoing exposure to health and safety
inspectors, and consequently, when they are fined, it comes as a fairly major shock.
By and large they respond quickly to rectify the breach, but in most cases, lack the
necessary skills and resources to adopt a more systematic and comprehensive
approach to OHS.
Strong message
23. For small employers and some sub-contractors, a common view expressed was
that a fine of $550 was indeed a very significant financial penalty, which might in
itself act as an effective incentive to improve prevention measures.
Most smaller firms considered that the size of on-the-spot fines was substantial but
appropriate, although a minority thought they were too harsh. There was virtually no
opposition to the proposition that equal penalties for equal breaches should apply,
irrespective of the size or financial circumstances of the offending company. Indeed,
the entire question of whether small firms should receive differential treatment
aroused very little discussion from firms or their industry associations. The relative
size of the fine for smaller firms was considered a strong motivational factor to bring
about health and safety improvements, with many conceding that without the
inspector’s action (or at least the threat of such action) their safety performance would
not have improved. As one suggested: "we think about safety anyway but the fact that
on-the-spot fines are out there makes us think more". However, they also had the
capacity to antagonise some small employers (mainly in the construction sector), and
a minority was adamant that it had no preventive effect.
24. Trade unions considered that on-the-spot fines were likely to be particularly
effective in dealing with small employers and sub-contractors.
One trade union official said "having [previously] been in charge of a crew of
scaffolders for some years I can assure you that if they believe they can be issued with
an on-the-spot fine it does modify behaviour".
Advice and assistance
25. Smaller firms, in particular, had a strong desire for on-spot-fines to be backed up
by educational initiatives. Without such support, they considered that the preventative
aspect of on-the-spot fines would be severely curtailed.
What was apparent from the interviews was that many small firms have only a very
limited awareness of health and safety issues. There was widespread agreement
among smaller firms that they lacked sufficient resources and expertise to implement
best practice health and safety practices, or indeed merely complying with existing
legislative requirements. Consequently, while most supported the use of on-the-spot
fines, they considered it imperative that they be treated as one component of a broader
health and safety strategy implemented by the inspectorate, including, in particular,
the provision of advice, assistance and expertise. In the absence of such support,
several respondents considered that the efficacy of such fines may be compromised.
An indirect and unintended effect of the use of on-the-spot fines may be to deter small
operators from seeking advice from the inspectorate for fear that they will use the
opportunity to come in and issue a fine. Thus inspectors are now perceived by some
as being "more policemen and less helpers".
Negative perceptions held by small construction firms
26. Smaller construction firms had a more negative view of on-the-spot fines as a
preventative device than that held by other sectors.
As with large business, a larger proportion of small businesses operating in the
construction sector objected to the application, if not the philosophy, of on-the-spot
fines (a view echoed by a representative of the relevant industry association). The
principal reason for this negative view was the perception that criteria for issuing
fines was divorced from the reality of everyday work practices. It was claimed that
this resulted in an excessive number of fines for trivial or purely technical breaches
that had little or no bearing on actual safety performance. There was a perception
therefore that fines were "simply a cost of doing business" and consequently had little
impact on behaviour. As one small employer said: "I didn’t believe I was doing
anything wrong so it didn’t change my behaviour". Most smaller construction
respondents also believed there should first be a warning and advice given by an
inspector before issuing a fine: "there were things we just didn’t know about our OHS
obligations - if we’d been told, we’d have done it anyway".
It should be noted, however, that a number of small construction firms did offer inprinciple support to such fines, even if they thought there was room for improvement
in their application, mainly on the basis that they considered there were a number of
"cowboy" operators out there who needed to be pulled into line, but also because they
believed that they had led to improvements in their own operations. The greater the
extent to which the industry as a whole conforms with minimum standards of OHS
performance, the greater the likelihood that individual firms will be competing on a
level playing field.
27. Smaller construction firms were more likely to question the motives behind the
issuing of on-the-spot fines.
A significant number, albeit still a minority, of small employers in the construction
industry regarded some inspectors as "trigger happy" and that they were more
concerned with using on-the-spot fines as a revenue generating mechanism than
because it has any preventative impact. As one said: "we have the feeling that
inspectors are just coming to book you - so I feel I’m going to get booked anyway, so
why try?". The relevant building industry association expressed very similar views on
all these issues, and also took the view that the level of the fine itself should be
smaller for small employers (perhaps $200 rather than $550).
One small construction firm likened the interaction between firms and inspectors as a
game: "inspectors set a hurdle [the legal requirements] that we can’t jump - we have
no intention of jumping it but we create the illusion we are trying to jump it. We have
a resentment about outsiders interfering in our business ... construction is inherently
dangerous, it’s asking the impossible to protect workers in some circumstances - the
best we can hope for is to rely on their common sense and training".
28. In the NT in particular, the non-English speaking background of many smaller
construction firms was considered by many respondents as a factor in the application
of on-the-spot fines.
Several industry respondents noted that the smaller construction sites in the NT were
dominated by employers and employees with a non-English speaking background.
This was offered by representatives from the larger companies as a partial explanation
as to why smaller, suburban sites received far less attention from inspectors than the
larger sites. It was intimated that these smaller firms used the language barrier as a
means of avoiding their health and safety responsibilities. NT inspectors, however,
denied that this issue was a major factor, and also refuted suggestions that they did not
equally target the smaller construction sites.
Part 2 - On-the-spot fines in areas other
than OHS
Although relatively little has been written about on-the-spot fines as they relate
specifically to OHS, there is a broader literature on the use of on-the-spot fines in
respect to other areas (see bibliography below). We draw upon this literature in
writing the present section and it also influences our subsequent analysis. We are
particularly indebted to the work of Richard Fox who, in a series of publications, has
provided an extremely detailed and insightful analysis of on-the-spot fines in other
areas, with a particular focus on Victoria.
Nevertheless, we are cautious of drawing too readily on this broader literature on onthe-spot fines, because the very large majority of it relates directly to the experience
of the police and other agencies with respect to parking and road traffic offences.
While some of the conclusions reached from study of these areas may be applied
directly to OHS, others may not, because of the substantial differences in the current
regimes for dealing with traffic violations and those dealing with OHS.
For example, in respect of road traffic offences, on-the-spot fines are being coupled
with additional sanctions such as de-merit points. Such a coupling raises serious
concerns regarding due process and fairness, but may have little bearing on OHS
where no comparable coupling is used (although it may be possible to introduce a link
between fines and workers’ compensation premiums). Similarly, much of the debate
about the proliferation of on-the-spot fines for moving traffic offences, is concerned
with issues of high technology surveillance and privacy issues, which again have no
parallel in respect of OHS and which are not pertinent to the question of whether or
how, on-the-spot fines should be applied in respect of OHS. Conversely, the
experience of firms in respect of on-the-spot fines for breaches of environmental
regulations is likely to have far more relevance. Given the extensive variety of
applications of on-the-spot fines, we draw on the broader literature circumspectly,
using only those aspects of it which resonate with the particular dilemmas and
tensions confronting OHS.
Potential advantages and disadvantages in the use of on-the-spot fines generally
The broader literature does identify with considerable clarity, the main potential
advantages and disadvantages of using on-the-spot fines. To summarise, the main
advantages include:
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the procedure provides a means for imposing punishment without the costs of
prosecution or court resources;
the returns may exceed the cost of enforcement, thus producing a profit for the
enforcement agency;
the procedure contains incentives designed to avoid a court hearing (these
include a discount from the normal maximum penalty and the promise of
reduced stigma by avoiding conviction);
the overwhelming majority of persons receiving infringement notices opt for
the convenience of expiating their offences by paying the amount of the fixed
penalty (no prosecutorial action, or court resources, are required);
timely payment of the fixed penalty ordinarily results in the offender acquiring
neither a conviction nor a record (the offender thus avoids the moral stigma
and legal disabilities that attach to prosecution and conviction in a criminal
court); and
because it is easier and quicker to issue an infringement notice than to mount a
prosecution in court it is more likely that the prohibition will be enforced (see
generally Fox 1995, and references therein).
Conversely, the main disadvantages are that:
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the deterrent force of the law may be reduced when matters are dealt with
administratively rather than judicially, leading to increases in offending;
the difficulties of enforcing the payment of infringement notices are as great as
those in relation to fines, but occur on a much greater scale;
the ease with which infringement notices can be issued makes it likely that
they will be used when a caution or warning without further action would have
been more appropriate (and arguably more effective);
punishment is not tailored to the condition of the particular wrongdoer with
the result that the offender’s personal circumstances are not taken into account
and there is little hope for modifying the penalty on the basis of mitigating
circumstances;
the ease of dealing with infringement notices and the discounted penalty
places recipients under great pressure to settle the allegation against them by
payment of the penalty even though they believe they are innocent;
the risk of the system being driven by fiscal rather than correctional
objectives; and
the undesirability of the enforcement authorities imposing penalties without
independent scrutiny of the facts by a court (see generally Fox 1995).
If there is one central question to emerge from the broader literature on on-the-spot
fines, it is how to balance expediency against rights. Yet it is on this very question
that empirical evidence is most lacking - not just in the area of OHS - but also with
regard to the areas where on-the-spot fines have been applied for many years (Fox
1995, 287). Moreover, many of the equity considerations that have to be weighed in
the balance are inherently non-quantifiable. As Fox has put it: "while it is well
understood that expediency can be bought at too high a price in terms of loss of rights,
finding the balance is extremely difficult. Each of the main advantages of the
infringement notice system is subject to countervailing considerations." (Fox 1995,
287). Thus:
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the use of infringement notices is not mandatory. It does not exclude the
exercise of discretion to dispose of the alleged offence by administering a
verbal or written warning, or proceeding to court. On the other hand there
appears to be a reduction in the use of warnings as an alternative because of
the ease with which infringement notices can be issued;
infringement notices lend themselves to automation and computorisation. On
the other hand this advantage is bought at too high a price if it prevents special
circumstances of a mitigating nature being considered other than by
demanding a full court hearing;
the infringement notice penalty is fixed at a lower monetary level than the
normal statutory maximum fine for the offence (although the statutory
maximum is rarely achieved in practice - it is more likely a fine in the range of
5 percent to 50 percent will result from a prosecution). On the other hand
there is no consistency in the degree of discount, and the personal
circumstances of the individual are not taken into account; and
because it is easier and quicker to issue an infringement notice than to mount a
prosecution in court, it is more likely that the prohibition will be enforced. On
the other hand the benefit to the revenue of a vigorous enforcement program
may lead to enforcement for the wrong reasons.
A review of a selection of non-OHS areas with experience using on-the-spot fines
The following analysis is focused on "prevention outcomes" and the use of on-thespot fines in a sample of NSW Government agencies. Prevention outcomes are
situations where an expected adverse outcome, or consequence, is avoided. Where
adverse consequences are avoided, improved performance results. This improved
performance can be measured, and provide an indication of the success of prevention
strategies.
Interviews with agency personnel revealed that prevention outcomes were not
considered in isolation but rather in the context of a general concern with
effectiveness, efficiency and equity. Information about measures of prevention
outcomes has therefore been considered here in relation to these criteria. Effectiveness
relates to how closely the objectives of on-the-spot fines are achieved; efficiency
looks for the minimum use of resources to issue and collect an on-the-spot fine; and
equity concerns inspector perceptions of fairness for the offender, and offender
perceptions of fairness (the latter not being examined in this sample). For purposes of
analysis, each dimension is considered separately below, but in practice the issues of
effectiveness, efficiency and equity of prevention outcomes tend to be interrelated in
the commentary provided by individual policy makers and inspectors.
A number of NSW government agencies provided personnel for interviews about
their on-the-spot fine practices. These agencies included: the Road Transit Authority
(RTA); the Department of Transport, the Environment Protection Authority (EPA);
National Parks; Fisheries; the Waterways Authority; and NSW local government.
A range of offences were discussed in relation to the specialised activities of each
agency examined. For example, the RTA was concerned about traffic offences,
defective vehicles, licence problems and driver fatigue; the Department of Transport
focused on the condition of taxis, the health and correct attire of drivers; the EPA
supervised clean air offences, such as smoky vehicles, littering, and Certificates of
Compliance under pollution control legislation; National Parks examined fires,
camping, dogs, wildlife, access and licences; the Waterways Authority’s main
concern was licences, safety equipment, pollution, noise and alcohol use by boat
crew. Each of these concerns are specified in legislation. Some legislation permits
more than one agency to issue on-the-spot fines for a given offence.
The results of our field research into the application of on-the-spot fines in non-OHS
areas in many instances echo the views expressed in the context of OHS.
Nevertheless, they still provide useful supporting information, particularly given that
the use of such fines has been over an extended period of time. The results are
summarised below.
Effectiveness of on-the-spot fines on prevention outcomes
1. On-the-spot fines lead to improvements in performance, relative to objectives
established in legislation, but these are only likely to be sustained if resources are
provided for continuing enforcement.
Each agency has different long-term objectives established by legislation (for
example, the EPA was enforcing legislation to achieve a certain quality of clean
water, and to keep noise levels to an acceptable level; the RTA was enforcing
legislation to remove defective vehicles from the transport system, and to restrict the
time drivers are at the wheel in the interests of general safety). In general, policy
makers and inspectors agreed that on-the-spot fines contributed to the attainment of
these objectives. A representative from the EPA illustrated the apparent confidence in
the effectiveness of this process by the fact that new NSW environmental legislation
will introduce the use of on-the-spot fines to a large number of new offences.
Similarly, representatives of the Department of Transport pointed out that warnings
issued to taxi drivers about inappropriate wearing of uniforms by taxi drivers tended
to be ignored, until an on-the-spot fine was made available for this offence. Once it
became possible for inspectors to issue an on-the-spot fine, taxi driver behaviour
changed quickly and in a persistent manner, as they tried to avoid situations which
would lead to the imposition of a fine.
Inspectors and policy makers suggested that organisations also perceived an on-thespot fine as a potential threat and have to consider whether the public knowledge of
the fine would have an impact upon their reputation. Policy makers in the EPA (which
provides media releases about corporate offenders) made it clear that corporations
react by trying to avoid on-the-spot fines through improved attitudes and behaviour.
There was a clear reputational effect at work here with imposed and disclosed on-thespot fines leading other companies to avoid offences.
Targeting of specific offences, and imposition of on-the-spot fines for those offences,
was thought to be particularly effective, as long as targeting continued and was
resourced. Several agencies offered examples of instances where such targeting had
been undertaken with success. For example, the Waterways Authority frequently
introduce weekend inspection campaigns, focused on particular offences, preceded by
publicity warning of this targeting through appropriate media and education outlets.
However, most agencies emphasised that the success of on-the-spot fines in the long
term was possible only if adequate resources continue to be provided. In the absence
of such resources improvements in performance resulting from on-the-spot fines were
unlikely to have any lasting effect.
A number of reasons were given for the successful preventative effect of on-the-spot
fines. In particular, it was suggested by inspectors that once an on-the-spot fine was
issued, attention had been directed to their powers and presence, and this led to
improved behaviour.
Similarly, inspectors and policy makers both agreed that on-the-spot fines are
effective because of their immediate impact on the offender. Specifically, they
provide a swift and immediate method for warning and/or fining offenders who
transgress the legislation. It is not just the imposition of an on-the-spot fine which
leads to effective prevention outcomes, it is also the combination of warnings, and
education about an offence, combined with the threat or actual imposition of an onthe-spot fine which makes the ‘on-the-spot fine package’ effective.
2. Fines have a "ripple" effect: once they have been imposed on individuals for an
offence in a particular locality, word of mouth quickly leads to other individuals
improving their performance in order to avoid similar fines.
Inspectors emphasised that because those who have received on-the-spot fines
communicate their experience to others, this can lead to preferred prevention
outcomes without actually having to impose large numbers of such fines. The threat
of an on-the-spot fine leading to improved behaviour and performance by potential
offenders is illustrated by an inspector of taxis at the Department of Transport. He
commented: "When one taxi driver gets a fine, they all fall into line in the network.
There is good communication between the drivers which leads to a successful result
from fining one offender".
3. Education is a necessary and important part of the process of on-the-spot fines.
Change in long-term attitudes to offences can be encouraged through education of
possible offenders. This can lead to prevention of offences taking place, and fewer onthe-spot fines being issued, as people learn about acceptable attitudes and behaviour
in relation to each issue for which they could receive a fine. All agencies stressed the
importance of education of likely offenders (the general public) to make them aware
of the possible circumstances in which on-the-spot fines might be imposed.
Most inspectors indicated that they and their agency tried to educate the offenders in
advance, and also when they had actually committed a crime punishable with an onthe-spot fine. The Waterways Authority typified the feeling that public education
about offences was important. For example, an inspector cited the use of advertising
on TV and radio and media releases regarding boating safety as providing necessary
background about what is and is not acceptable behaviour. Changing attitudes, and
hence behaviour, and the consequences of that behaviour, is seen as an integral part of
the on-the-spot fine process.
4. Prevention will be enhanced if the public receive more information about an
inspector’s role, authority, relationship with the police, and judgemental powers.
The importance of "public education" as to the role and jurisdiction of an inspector
was stressed by the vast majority of inspectors. An interviewee at the RTA explained
that, although members of the trucking industry were clearly aware of the role and
responsibilities of the RTA, with regard to vehicle safety and condition, the general
public had not been adequately educated to realise that the RTA has the authority to
undertake similar supervision of private vehicles. The inspectorate felt that it was
important that the general public were made aware of the scope and nature of their
authority as inspectors and that this authority did exist alongside that of the police. On
occasion, enforcement problems did occur for inspectors where the public had an
expectation that the work which was being undertaken was usually that of the police.
One Ranger at National Parks commented that it was useful to have the police
involved in the fine collection process because this reinforced the seriousness of the
offence, and knowledge of police involvement might contribute to a reduction in
repeat offences.
5. In assessing the effectiveness of on-the-spot fines as a preventative tool, it is
important that appropriate statistics are collected and analysed, and that appropriate
follow-up procedures are initiated.
Although it might be expected that a number of indices (such as a reduction in the
number of repeat offences) would be used to show the benefit of on-the-spot fines, in
practice, the absence of detailed information databases, and the cost to agencies of
gaining information about repeat offenders, often proved prohibitive, and prevented
such information being collected, collated and analysed.
An example of the advantage of possessing and using such an information system is
provided by the EPA, which has a database relating to on-the-spot fine processes for
which it is responsible. It uses the database to identify repeat offenders, and to
develop a strategy which imposes harsher penalties than on-the-spot fines for repeat
offenders. On the other hand National Parks, which incorporates a written warning
process into the on-the-spot fine process, uses a database to detect offenders who have
ignored these earlier warnings and to issue an on-the-spot fine for a subsequent repeat
offence. Both of these instances have to be monitored through a database if repeat
offenders are to be identified. The collection of information in a systematic manner is
essential for agencies to adequately assess and address prevention issues, in particular,
repeat offenders.
Similarly, inspectors recognised the importance of follow-up procedures which
provide a check that individual and corporate performance has improved following an
initial offence or warning. At one agency inspectors were disappointed that they were
discouraged from "getting out in the field to undertake follow-up inspections" as
resources had been put into other areas. It was felt important to establish whether on-
the-spot fines did reduce further offences, for effective prevention outcomes to be
established.
Efficiency of the on-the-spot fine administrative process
6. The general view of inspectors and policy makers is that on-the-spot fines are a
highly efficient method for punishing offenders.
For the agency enforcing a regulation, on-the-spot fines are regarded by inspectors
and policy makers alike as low cost, quick and easy to administer in comparison with
other ways of obtaining prevention outcomes. An on-the-spot fine is perceived to use
the minimum of resources to achieve outcomes. This point is emphasised by, for
example, a comment made by an inspector at the RTA who observed that on-the-spot
fines are more efficient because the RTA system of using two inspectors to assess
non-compliance with regulations means that any court appearances are resource
intensive, as the time of both inspectors is required in court to give evidence. In
contrast, on-the-spot fines can be issued quickly by two inspectors who can then move
on to the next case. There is a general concern that inspectors get tied up in court
proceedings when an on-the-spot fine is not available. On-the-spot fines are also
regarded by policy makers as efficient users of the offenders time and resources - the
majority of offenders decide that it is easier to pay the fine and do not chose to appeal
and go to court.
7. All parties interviewed recognised that, where the breach in a regulation is a minor
one, and evidence is certain, then an on-the-spot fine provides an efficient
administrative mechanism.
The majority of agencies drew attention to the fact that on-the-spot fines possessed an
efficiency advantage over other methods when: (a) the breach is clearly defined in
law; (b) the facts are easily verified; (c) evidence of the breach is easy to confirm; and
(d) an on-the-spot fine is easy to impose. Hence, on-the-spot fines are usually only
considered for situations where circumstances surrounding a breach are clearly
defined and evidence is hard to dispute.
Specifically, for example, the EPA briefs its inspectors, in the EPA Manual for
Authorised Officers, that on-the-spot fines are appropriate where: the breach is minor;
the facts are apparently obvious; and the breach is a one-off situation that can be
easily remedied. At the same time the EPA suggests that it is not appropriate to use
on-the-spot fines where: the breach is ongoing and not within the alleged offender’s
capacity to remedy quickly; the penalty prescribed on the notice would be inadequate
for the severity of the offence; the extent of the harm to the environment cannot be
assessed immediately; the evidence is controversial or insufficient, so that if a court
heard the matter it would be unlikely to succeed; and multiple breaches have
occurred. In short, when the situation is complex on-the-spot fines are inappropriate.
8. Inspectors felt that on-the-spot fines were such an efficient administrative
mechanism that their use should be extended to other areas.
It was strongly felt by inspectors that the variety of applications of on-the-spot fines
should be increased. For example, the Waterways Authority was already examining
the issue of extending on-the-spot fine applications to new areas. Likewise, inspectors
at the Department of Transport, suggested a number of other minor offences which
on-the-spot fines should be applied to in their own agencies. These comments are
indicative of the general view held by inspectors that on-the-spot fines are an efficient
mechanism, that they should be extended to other areas, and that it would be useful
for policy makers to seek opinions of inspectors as to where to extend the possible
range of applications in each agency.
9. Where insufficient resources are provided to administer on-the-spot fines, they
function sub-optimally as a preventative tool.
In some agencies, resources have not been made available to administer on-the-spot
fines as part of an integrated enforcement strategy, including, for example, the use of
initial warnings to precede the application of an on-the-spot fine, and a follow-up
procedure to establish that performance has improved. For example, one agency
undertook a trial project designed to introduce on-the-spot fines for non-compliance
when a company did not formally apply in the appropriate manner for a "Certificate
of Compliance" under pollution control regulations. Initially, notices and warnings
were given, and educational tools used, but a simplified package has since been
devised as this initial process was found to be particularly resource intensive. Now,
introductory warnings are no longer issued. Another result of insufficient resources is
"targeting" of narrow areas. Once again, inspectors felt that this represented the under
application of resources to on-the-spot fine processes.
10. Standardisation of guidelines for inspectors to adopt in their implementation of
on-the-spot fine processes is not the norm and practices vary greatly both within and
across different agencies. Inspectors and policy makers seemed generally
unconcerned that behaviour of inspectors might vary both between agencies, and in
relation to the same offences.
Standardisation and guidelines provide an efficient means for using resources.
According to inspectors, agencies varied greatly in their provision of guidelines,
training, and instruction to inspectorates on the use of on-the-spot fines. However, this
variety of approaches was not of general concern. The most formal set of guidelines
was provided by the RTA. It provided advice about policy, appearance, behaviour and
information on topics such as the issuing of penalty notices. Workshops, training
sessions and refresher courses addressing new issues were also provided. On the other
hand, some agencies only provided training in the field, without formal workshops or
training sessions. Inspectors felt that, whatever the guidelines and training methods
used there was no real concern about possible inconsistent application of on-the-spot
fines between individuals and between situations. However, a number of inspectors
did express a view that they would appreciate a more formal process of workshop
sessions which could provide a forum for advice about such issues as dealing with
problem offenders; current policy issues within the agency; and the implications of
new legislation.
Equity
11. Inspectors felt that no "quota mentality" existed in any of the agencies.
The general view of inspectors and policy makers is that there is no attempt being
made to issue a certain number of on-the-spot fines as a method of general revenue
collection. The Police Infringements Bureau is used by all the agencies interviewed to
collect their fines. All monies go to the consolidated revenue, rather than being
hypothecated. However, there is concern from inspectors and policy makers that the
public do see on-the-spot fines as a method used to collect revenue for consolidated
funds (ie as a financing technique). This perception has the potential to create an
uneasy tension between the public offenders and the inspectors.
12. Warnings are seen as injecting fairness into the on-the-spot fine process where
public knowledge of offences is limited.
Warnings have been introduced to improve the equity of on-the-spot fine processes by
some agencies. National Parks and the Waterways Authority have a written and
verbal warning notice, often for a first offence, without an on-the-spot fine being
imposed. The idea behind a written warning is that the offender’s details are recorded
and, if there is a repeat offence, then an on-the-spot fine is issued. Other agencies also
provide verbal warnings, however, in these cases the onus is on the offender to show
they have complied with the warning within a specified period, or otherwise an onthe-spot fine results. For example, a verbal warning about a defective vehicle from an
RTA inspector leads to an on-the-spot fine if the vehicle is not repaired, and
information about the repair is not communicated to the agency, within a set time
period (arguably, this would have a similar impact to that of an improvement notice
issued in an OHS context). Introduction of a warning process is resource intensive
because a database must be kept and follow-up procedures are required. There is
clearly a trade-off between equity and efficiency when considering the importance of
a warning within the on-the-spot fine process. Furthermore, the use of warnings
introduces the possibility of their inconsistent use as it is left to the inspector, at the
time of the offence, to decide that a case warrants a warning rather than an immediate
fine. Cases which perhaps lack sufficiently clear evidence were suggested as
appropriate for a warning mechanism.
13. A small number of appeals may indicate that the on-the-spot fine process is
generally perceived as a fair one.
An appeal implies some dissatisfaction with the on-the-spot fine imposed. The
agencies generally reported that appeals were usually only of a marginal nature, and
that few on-the-spot fines were appealed in court. An initial appeal is made through
the Police Infringements Bureau to the relevant agency. The low cost and informal
nature of an initial appeal by the offender is considered to add to the fairness of the
on-the-spot fine process. The fact that, overall, relatively few appeals were made, was
regarded by agencies as an indicator that their imposition was perceived as fair by
most recipients. An alternative explanation might relate to the cost or difficulty of the
appeal process.
14. Inspectors and policy makers felt that the "responsible person" should always be
tracked down, whether an individual, or an employee of a company is responsible for
a breach.
A general concern exists about the equity of issuing on-the-spot fines to organisations
rather than to individuals. Inspectors felt that they should be able to target an
individual who was responsible for non-compliance (for example, EPA inspectors are
required to look for and find a responsible individual to whom the fine should be
issued). It was also noted that an on-the-spot fine imposed on an individual employed
by a corporation (for example, a taxi driver who drives a corporate taxi) can be a
stimulus for corporate action to correct problems which led to the fine, because the
corporate image would be tarnished if general behaviour is not seen to be improved.
15. It was perceived that "ability to pay" should not have a bearing on on-the-spot
fine, which in general are being issued for minor offences.
There was an undercurrent of feeling amongst inspectors that organisations had
greater ability to pay than individuals and that the amount of the fine does not take
into account the capacity of the offender to pay. No practical solutions to this issue
were evident from the interviews. However, it was felt in general that other
mechanisms were available (for example, elective court proceedings) to take account
of individual circumstances.
Part 3 - On-the-spot fines within a
broader OHS policy framework
This section explores how on-the-spot fines are best used not as a stand alone
strategy, but rather as part of a coordinated policy mix designed to optimise
prevention of work-related injuries and disease. It indicates how OHS policy relating
to on-the-spot fines can be integrated with critical enforcement approaches and policy
instruments (ie an integrated impact analysis). Here the critical question becomes: in
what circumstances and in what combinations, can the main categories of
enforcement approaches best be utilised? To answer this question, it is necessary to
review briefly, the main regulatory options for addressing prevention of work-related
injury and disease.
Two central strategies are available: deterrence and compliance. Deterrence models
"essentially rely on punishment to achieve compliance, based on the assumption that
regulatees are rational and competent actors who are economically motivated to
comply with regulation. Compliance models essentially rely on persuasion to achieve
compliance, based on the assumption that regulatees are often irrational and
incompetent actors, motivated to comply with regulation by a sense of responsibility,
among other non-financial matters" (Industry Commission 1995, 417).
Most contemporary specialists on regulatory strategy point to the severe limitations of
both pure deterrence and pure compliance strategies, and argue, on the basis of
considerable evidence from both Europe and the US, that a judicious mix of
compliance and deterrence is likely to be the optimal regulatory strategy (Ayres &
Braithwaite 1992; and Kagan 1994). But how can such a mix best be achieved, and
does current administrative and enforcement practice approximate it?
In considering alternative strategies, it is important to remember that there may be a
range of situations where improving OHS makes good business sense in that it is
likely to improve profit and productivity and possibly provide other benefits also (for
example, improved public image, improved industrial relations). However, this is far
from always being the case. Policy-makers must also confront those circumstances
where there is a direct conflict between safety and profit (Gunningham 1984) or
where regulatees, through irrationality or incompetence, do not recognise the other
benefits that improved OHS may provide. In either of these latter situations, voluntary
initiatives alone, are unlikely to provide an adequate response and stronger forms of
direct intervention in industry’s affairs may be justified.
Regulators must balance the use of enforcement strategies which address the minority
of flagrant offenders, with the need to encourage and help the majority of employers
which comply voluntarily. Apart from ensuring improvements in health and safety
performance, this is important in ensuring that all businesses operate and compete on
an equal footing. Thus good regulation means invoking different strategies depending
upon whether on not business has a self-interest (or perceives itself as having a selfinterest) in improving OHS outcomes (Braithwaite & Ayres 1992). However, the
dilemma for regulators is that it is rarely possible to be confident in advance of which
classification a regulated firm falls into, and still less to distinguish rational economic
actors (who consciously calculate costs and benefits in terms of their self-interest)
from the irrational or incompetent (who may have self-interest in improved OHS but
do not recognise or act upon it).
A solution to this dilemma, suggested by John Braithwaite and others, is the
regulatory enforcement pyramid: an approach which has now been formally supported
by the NSW Labour Council, amongst others, and which, in principle, has also
received some support from some employer groups and individual employers who
believe "that fines must be seen as part of an integrated strategy to be used as a last
resort after advice and persuasion and other approaches have failed".
Figure A - OHS Enforcement Pyramid
Under this model, regulators start at the bottom of the pyramid assuming virtue - that
business is willing to comply voluntarily. However, they also make provision for
circumstance where this assumption will be disappointed, by being prepared to
escalate the enforcement pyramid to increasingly deterrence-orientated strategies. For
example, an enforcement pyramid might begin with the provision of advice, move to
informal formal directions, in the form of improvement and prohibition notices, then
escalate to on-the-spot fines, and finally, resort to prosecutions with increasingly
serious consequences, as represented in Figure A. In essence, by adopting a "tit for
tat" strategy, by cooperating with firms until they cheat, "regulators avert the counterproductivity of undermining the good faith of socially responsible actors. By getting
tough with cheaters, actors are made to suffer when they are motivated by money
alone; they are given reason to favour their socially responsible, law-abiding selves
over their venal selves". Braithwaite’s conclusion is that pyramidal forms of
responsive regulation "hold out the possibility of nurturing the virtuous citizen,
deterring the venal actor and incapacitating the "irrational or dangerously incompetent
actor" (Ayres & Braithwaite 1992, 27).
Locating on-the-spot fines within the enforcement pyramid
Consistent with the principles identified above, on-the-spot fines can be located
within an enforcement pyramid involving four main levels.
Advice and persuasion
The least interventionist measure available to inspectorates is oral advice. For the
majority of offences, persuasion and advice have in the past been the preferred
approaches where non-compliance of a minor nature is detected. Providing advice to
persons with obligations under the OHS legislation is an important way for an
inspectorate to assist industry to meet the necessary statutory requirements. Where
advice is left unheeded, or is inappropriate, inspectors may move to the next level of
enforcement. This may include written advice or directions, or the issue of a range of
notices, described below.
Although publicity is not generally included within an enforcement pyramid, for
present purposes it may be located along with advice and persuasion. Publicity can be
very effective in deterrent and preventative terms. Moreover, the preventative value of
on-the-spot fines might itself be increased by integrating them with targeted publicity.
As Quinlan has put it, what is needed is: "to target an industry, providing a lot of
advice to those employers that want to get advice then, and only then, going in and
doing a targeted blitz of a particular region ... and issuing on-the-spot fines. So you try
to mix the positive and the negative sides. And you publicise all this. Publicity is very
powerful, particularly in big companies" (Quinlan 1997, 179).
Compliance notices
Compliance notices are issued where there is a risk to safety. They are the most
commonly used of the enforcement tools and, in practical terms, give an individual or
organisation to whom they are issued, a second chance, to comply with the relevant
requirements (Duane 1996). Such notices may take one of two forms: improvement or
prohibition notices. Improvement notices are used where the breach is not an
immediate threat to the health and safety of a person. Improvement notices outline
clearly what is required and set time limits for compliance. Improvement notices are
appropriate for matters which require rectification but do not pose an immediate threat
to health or safety. Prohibition notices are issued where there is an immediate threat to
the health and safety of a person. Prohibition notices are usually issued where the
cooperative approach has failed to have the activity immediately halted or the
problem fixed (although they may still be issued to a cooperative employer to ensure
the matter has been recorded and to emphasise the seriousness of the issue). Where a
prohibition notice is issued, the specified activity must cease, and the notice will
remain in force until the hazard is abated. Failure to comply with a notice is a serious
offence which may lead to prosecution, either for failure to comply with the notice or
for failure to comply with the general duty of care, with much higher penalties. There
is provision for appeal against both prohibition and improvement notices.
On-the-spot fines
As indicated earlier, on-the-spot fines are usually issued in situations where minor
potential risks exist to safety. They are not issued where an injury or illness occurs or
where there is high potential risk. As Hopkins points out: "the hierarchical ordering of
these options is a little ambiguous since a prohibition notice could be very much more
costly to a company than an on-the-spot fine." Nevertheless, for reasons described in
the next sub-section, such fines are usually located on a level with or above
compliance notices in the pyramid. They may be regarded as an intermediate step
between requiring compliance through the issue of compliance notices on the one
hand, and enforcement through prosecution on the other. It might also be anticipated
that these notices will have a more immediate effect than prosecutions, given that the
prosecution process can take some very considerable time.
Prosecutions
The next stages of escalation up the enforcement pyramid are more punitive. They
involve prosecution either in the lower or the higher courts. Prosecution proceedings
are commenced for the more serious offences, where injury or illness has occurred.
Likewise, prosecution proceedings are taken where a high risk of injury existed
although no injury arose; or there is non-compliance with a penalty notice. Less
serious breaches are brought before a magistrate and more serious breaches (in NSW)
before the Industrial Relations Commission which has the power to impose the
maximum penalties. Under the pyramid, the OHS agency would resort to lower court
prosecutions when a quick deterrent is required to deal with a duty holder who has not
complied with OHS standards despite the persuasive and mild deterrent measures
used at lower levels of the pyramid.
Integrating on-the-spot fines with other measures
The above description implies that on-the-spot fines can be located below prosecution
but above compliance notices in the enforcement pyramid, and that inspectors will
gradually escalate from the base of the pyramid. However, their actual functioning in
the pyramid may be rather more ambiguous, and our interviews suggest that actual
practice varies substantially both as between individual inspectors and as between
industry sectors.
Most generalist inspectors took the view that on-the-spot fines should be issued in
conjunction with improvement notices (or occasionally in conjunction with
prohibition notices). Their reasoning was that "an improvement notice is the legal
obligation to correct the problem - the on-the-spot fine is the slap on the wrist to deter
them" or, put differently, that "the fine brings the problem directly to their attention,
while the improvement notice provides the constructive solutions". The use of these
two instruments in combination was also seen to have the virtue that the issue of the
improvement notice ensures that the breach identified in the on-the-spot fine is
rectified and followed up by the inspector. For all these reasons, their combined effect
was believed to be far greater than the effect of either instrument in isolation.
In contrast, many inspectors in the construction sector in NSW tended to issue on-the
spot fines sequentially (ie only when a compliance notice had not been complied with,
or for repeat offences which occurred despite previous compliance notices). That is, in
construction, fines were often treated as a last resort, after the issuing of compliance
notices or other action had failed to achieve a satisfactory result. The inspector’s
approach was likely to be: "here’s a notice, and if this doesn’t work, we will follow it
up with a fine". However, this practice tended not to be adopted when dealing with an
individual employee, where a fine was more likely to be issued without prior warning,
on the basis that "fines work better with the individual". Some WorkCover policy
makers also took the view that on-the-spot fines should only be used as a sanction for
non-compliance with an improvement or prohibition notice: an approach which if
generally followed would substantially reduce the preventative impact of on-the-spot
fines identified earlier by confining their use to only one limited set of circumstances.
Towards an integrated approach
Some of our respondents also identified risks if the introduction of on-the-spot fines
actually had the effect of deflecting inspectors from applying the enforcement
pyramid principle. On the one hand, there is a danger that the very existence of onthe-spot fines inclines inspectors to invoke them in circumstances where previously
they would have merely warned or advised an employer. As Mr Garry Brack, of the
Employers’ Federation of New South Wales, (giving evidence to the Industry
Commission Inquiry) has put it:
"An educative role is likely to have a vastly more productive outcome than a system
that has people walking in the door and around the factory who are determined to find
something for which an on-the-spot fine can be issued. There are many workplaces
where employers have the feeling that they are going to get done for something so
they might as well lie back and enjoy it in the same way that when the auditor comes
around at the end of each financial year you know that when you get the management
letter there has got to be something that the auditor will find was wrong in the
establishment, however impractical it might have been, to justify the fee."
On this scenario, on-the-spot fines may be misused by being invoked where advice or
persuasion would have achieved an adequate response (that is, in practice, inspectors
may begin at a higher point on the pyramid than previously). On the other hand,
inspectors may be tempted to issue an on-the-spot fine in circumstances where a
prosecution is more appropriate, given the severity of the breach. If this occurred, the
effect of their introduction would be to dilute the upper levels of the pyramid and to
reduce its deterrent impact.
The use of on-the-spot fines in preference to criminal prosecution, in particular, may
inadvertently send a message to industry that breaches of OHS legislation are "not
really crimes". Such attitudes are already common in many quarters, and this could
therefore undermine attempts by regulatory agencies to impress upon industry the
seriousness of improving health and safety practices, and impede the general
deterrence effect of OHS regulations.
There are indeed risks that on-the-spot fines will not be integrated successfully into an
enforcement pyramid, and that use of these fines may become either a substitute for
more serious enforcement action in serious or repeat cases, or serve to trivialise OHS
offences through misuse. However, these risks can be overcome if they are
consciously addressed by policy makers. In particular, the greater the extent to which
inspectors are required to restrict their discretion (for example, as a result of
enforcement guidelines) and the more they are given appropriate training as to the
circumstances in which they can most appropriately be used, the less chance there is
that either of these risks will become a reality. Moreover, on-the-spot fines will be
more successfully integrated into the enforcement pyramid if the model adopted by
generalist inspectors in NSW (using them in conjunction with compliance notices) is
preferred either to the approach of the construction inspectorate (using them
sequentially) or the approach suggested by some policy makers (using them only
when a compliance notice has been ignored).
In summary, the evidence described earlier is that on-the-spot fines can indeed play an
important role as a preventative tool, providedthey are integrated successfully into a
pyramidal enforcement strategy as described above.
Conclusion
As we indicated throughout the report, on-the-spot fines have considerable potential
to prevent workplace injury and disease. This conclusion was, by and large, was
supported by the findings of our field research. The majority of the respondents,
whether industry recipients, government inspectors, employer representatives or union
officials, considered that on-the-spot fines had an important preventative role to play
in improving the OHS attitudes and performance of industry. This conclusion is also
consistent with research internationally which suggests that there is very considerable
value even of a slight slap on the wrist, such as on-the-spot fines may provide, in
focusing attention on OHS issues (Gray & Scholz 1993). The broader international
research on administrative penalties generally also suggests that such penalties can
provide credible deterrence at a very modest administrative and legal cost (Industry
Commission 1995, Vol I p 118).
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 on the contrary, in NSW, the introduction of on-the-spot fines
coincided with an increase in prosecutions), 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.
On-the-spot fines in an OHS context
In describing the preventative role of on-the-spot fines in the OHS context, however,
it is important to distinguish between their inherent and widespread appeal, and their
specific application in a range of different circumstances. Most striking, on the basis
of our field research, is the different experience of on-the-spot fines as they applied to,
on one hand, the construction industry, and on the other hand, industry in general.
In the case of industry in general, there was a reasonable level of consensus that onthe-spot fines were an effective means of preventing injury and disease in the
workplace. Although a variety of reasons for this favourable view were offered,
common responses included their ability to provide management with an indicator of
performance, to "get the safety message across" to management, to embarrass
management into taking preventative action, and, in some cases, to provide a
significant financial deterrent. There was also consistent reference to the so-called
"ripple effect" whereby fines imposed upon one firm impacted on the activity of other
related firms through word of mouth.
Just as there was a fair consensus concerning their benefits, so too was there a
consistency of opinion as regards to their most notable shortcomings. There was a
perception that although on-the-spot fines could have a preventative effect, this was
likely to be short term in nature. There was also a very strongly held view amongst
many industry recipients that there was a lack of consistency on the part of inspectors
in the application of fines, and that this undermined confidence in the system, and
subsequently, their preventive impact. Finally, several respondents referred to the
need for on-the-spot fines to be used as part of a suite of measures, including, in
particular, OHS advice and education, rather than the tendency for them to be used in
isolation.
In contrast to the generally positive attitude of industry respondents in general,
respondents from the construction industry were far more sceptical about the
preventative role of on-the-spot fines. Even those construction companies that
professed a strong corporate commitment to OHS issues did not regard on-the-spot
fines as having a positive preventative effect. Given that the overwhelming majority
of fines, in both NSW and the NT, are issued to the construction industry, this is an
issue that should be of concern to policy makers.
The construction industry has particular characteristics which conspire to undermine
efforts to engender a comprehensive health and safety culture. These include the
transient nature of work sites, with workers moving from one construction job to the
next, the high turnover of staff, which reflects the regular use of casual labour, and the
tendency to sub-contract much work, which removes direct management
responsibility for maintaining health and safety standards and practices. On the part of
industry, there are three central criticisms about the use of on-the-spot fines in their
sector.
First, is a perceived lack of consistency on the part of inspectors in applying fines.
This perception may apply to individual inspectors, for example, between large and
small construction sites, or between different inspectors. There is a concern amongst
many recipients that they are being unfairly targeted. Second, there is a widespread
view that the breaches subject to fines are out of touch with the "day to day reality of
construction practices". In particular, most breaches are described by recipients as
being "purely technical in nature", and having little or no bearing on actual safety
performance.
The final issue amongst construction industry respondents was the problem of
distinguishing responsibility between sub-contractors and principal contractors. In
most cases, the latter considered that it was unfair for them to be fined for breaches by
the former over which they had little direct control. Even those companies which
accepted that they had a broad duty of care to employees of sub-contractors claimed
that it was beyond their capacity to monitor the work of every sub-contractor and
worker.
These adverse perceptions, whether factual or not, have led to a hardening of attitudes
and the growth of regulatory resistance. Many of the construction industry
respondents interviewed, although not all, and less than an overall majority, had
resigned themselves to the fact the on-the-spot fines had simply become a cost of
doing business, and rather than leading to long-term preventative improvements,
merely resulted in a proportional increase in the price of tenders.
Another striking result to emerge from our interviews was the different experience
with, and responses to, on-the-spot fines of large companies as opposed to small
business. In the case of the former, the level of the fine was insufficient to generate a
significant financial deterrent. Nevertheless, large companies, particularly those with
relatively sophisticated management systems, tended to view fines more as a
performance indicator. Many also regard such fines as a significant blot on their
record which subsequently provides a spur to greater preventative action. An
important consideration for policy makers, in this regard, is the critical importance of
senior management becoming aware of the existence of an on-the-spot fine.
In the case of the latter, on-the-spot fines can have quite a dramatic impact through
direct deterrence. Small business operators not only find the financial penalty a far
greater burden than that of large businesses, in many cases, the fine inflicts a strong
emotional blow. Given their general lack of exposure to inspectors, most small
business operators are surprised and disturbed that they have received a fine, and even
if they consider it to be a minor technical breach, claim to have taken prompt
corrective action.
Although small business operators are generally supportive of the use of on-the-spot
fines (the objections of construction firms notwithstanding), they uniformly bemoaned
the lack of advice, assistance and back-up support provided by the inspectorate. In
this respect, most of the preventative benefits of on-the-spot fines for small businesses
are likely to be short-term in nature, as they lack the in-house expertise to adopt more
sophisticated OHS management practices.
On-the-spot fines in a non-OHS context
The use of on-the-spot fines as a regulatory tool is continuing to expand in a variety of
contexts. They are currently applied in situations as diverse as speeding fines for
individual motorists, and breaches of pollution standards by large companies. And yet
despite this diversity, there was a remarkable level of consistency in support amongst
policy makers and inspectors as to their beneficial impact. Many of these views
clearly resonated with the views expressed by industry in general in the context of
OHS. In essence, this support relates to the ability of fines to avoid the cost and
complexity associated with court proceedings, and their applicability to a range of
circumstances where such proceeding would not be justified in any case, such as
minor breaches of regulations. They also promised considerable savings in
administrative costs. Most respondents reported favourably on the capacity of such
fines to bring about positive changes in both the behaviour and attitudes of recipients,
and suggested that they reinforced the general message to non-recipients through a
"ripple effect".
There were a number of important provisos articulated by non-OHS respondents, and,
again, these tended to accord with the reservations and/or qualifications expressed by
respondents in the OHS context. Chief amongst these was the need for adequate
resources to ensure the ongoing application of fines and follow-up enforcement. The
role of education as an adjunct to fines, in particular, to bring about longer term
changes in behaviour was also emphasised. Also, many respondents pointed to the
importance of publicising the power of inspectors to impose on-the-spot fines. Some
respondents considered the use of warnings as an appropriate means of improving the
acceptability of on-the-spot fines, in particular where a warning was automatically
followed by a fine if the breach was not rectified.
Improving on-the-spot fines
Although it is beyond the prescribed scope of this consultancy to provide specific
policy recommendations, a substantial number of those interviewed who supported
the use of on-the-spot fines, and who believed that they function as a useful
preventative tool, nevertheless considered that their design could be improved. These
suggestions may be of value to both policy makers in jurisdictions currently operating
a system of on-the-spot fines, and to those in jurisdictions contemplating their
introduction.
Potential policy reforms that emerged from our data were that:
(i) a tiered system of on-the-spot fines might usefully be introduced under which the
most serious penalties merited a more substantial penalty than less serious offences.
The main objection to this proposal was that such tiering introduces greater
complexity and discretion into a mechanism whose principal virtues are
administrative simplicity and efficiency. Moreover, it might result in inspectors
issuing on-the-spot fines in circumstances where the severity of the offence merited
criminal proceedings in court;
(ii) increased penalties might be imposed for repeat offences of the same type within a
given period. For example, it was proposed that where an on-the-spot fine was issued
in respect of an unguarded machine, a subsequent offence relating to an unguarded
machine in the same organisation within a 12 month (or 24 month) period should
result in a doubling of the original fine, and third offence in a trebling and so on. It
terms of the construction industry, this measure would apply to repeat offenders;
(iii) on-the-spot fines could be used in conjunction with publicity (for example,
naming offenders in WorkCover publications/newsletter), building on the fact that
many larger recipients found the stigma of the fine, rather than the amount, the
dominant motivating factor;
(iv) authorities, in applying on-the-spot fines, consider embracing supporting tactics
such as targeted publicity, education and "blitzes". The use of advanced publicity to
identify which sectors are to be targeted and why, and within that, what practices are
to be targeted and why, may enhance both efficacy and acceptability amongst
recipients;
(v) authorities continue to make good OHS performance a requisite for tendering for
public contracts, and use the record of on-the-spot fines (both of main contractors and
of sub-contractors) as an indicator of past OHS performance;
(vi) inspectors could be provided with clearer guidelines that can be applied on-site to
ensure greater consistency in the circumstances in which they are issued (which will
in turn make them appear less arbitrary and produce less antagonism from recipients);
(vii) it be clarified to whom on-the-spot fines should be issued (much resentment
arises because of perceptions that they are imposed on the wrong person ,for
example,, main contractor when the sub-contractor committed the offence), and in
particular, at which level of management they are served (fines have most impact
when they come to the notice of senior management);
(viii) inspectors ensure that recipients of on-the-spot fines are informed of the system
of review or appeals of on-the-spot fines;
(ix) authorities consider limiting on-the-spot fines to circumstances of a clear-cut
nature, thereby limiting inspectors’ individual discretion and judgment;
(x) increased resources could be provided to inspectors to enforce on-the-spot fines
and importantly to conduct follow-up visits to ensure that preventative measures have
been adopted; and
(xi) authorities consider creating comprehensive databases to record the application of
on-the-spot fines and to analyse and monitor their impact on industry performance.
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Appendix 1 - Methodology
Methodology re project outcome (i)
All the key components of project outcome (i) were approached using a common
methodology comprising two elements: (a) field research; and (b) desktop research.
Of these, the first element was the more important, but a complete picture could not
be obtained without also utilising the second. The report itself incorporated not only
the results of the field and desktop research, but also contained an analysis and
evaluation of the impact of on-the-spot fines.
Field research
The research agenda/key components identified above were addressed through field
research study (ie interviews with key actors, stakeholders, and on-the-ground
regulators). Such fieldwork was essential since the research agenda could not be
resolved at an abstract or theoretical level alone but only by the study of "what works"
in specific contexts.
The principal form of data collection was semi-structured interviews, either face to
face, or in some circumstances by phone. (For reasons of cost, the main focus of faceto-face interviews was NSW, but telephone interviews were conducted as regards NT
and elsewhere). These were conducted with a representative sample of those involved
in both policy and administration of on-the-spot fines. They included not only State
government officials (for example, senior management and OHS inspectors) but also
business and employees (for example, management, OHS supervisors/coordinators,
safety representatives and both employer association and trade union officials).
Bodies with a particular interest in this issue, such as the Australian Chamber of
Commerce, were contacted during this stage.
This sample was supplemented by strategically-targeted interviews with other key
actors identified on the basis of "snowball" sampling (a highly effective social science
methodology which essentially involves asking key respondents who else in the field
the interviewer should contact, and then contacting those who are most commonly
identified by respondents). A high response rate was achieved with regard to
interviews, particularly since the information at issue is generally not confidential. In
total, approximately 70 interviews were conducted. Face-to-face interviews were tape
recorded (unless the respondent objects or tape recording would inhibit a forthright
response) and provided substantial qualitative data for analysis.
As indicated above, on-the-spot fines are not unique to OHS and representatives of
other agencies who have utilised such fines were also contacted in order to tap into
their experience of the key components identified above and to gain their overall
evaluation of the strengths and weaknesses of this mechanism. Specifically, a number
of NSW government agencies provided personnel for interviews about their on-thespot fine practices. These agencies included: the Road Transit Authority (RTA); the
Department of Transport, the Environment Protection Authority (EPA); National
Parks; Fisheries; the Waterways Authority; and NSW local government.
Initial selection of the agencies was under guidance from the NSW Police
Infringements Bureau, the same Bureau which collects on-the-spot fines on behalf of
these agencies, and has considerable knowledge about on-the-spot fine activities.
Within the agencies only policy- makers and inspectors were interviewed. A contact
person in each agency was from a list provided by the Police Infringements Bureau.
The contact then provided further names of policy makers and inspectors prepared to
be the subject of a telephone interview. Hence, the resulting sample was not drawn at
random from the available population of people for interview, instead, expert opinion
was used to derive the sample. On-the-spot fine recipients were not the subject of
interviews in this part of the project, largely because of privacy concerns. A total
number of 30 successful interviews were undertaken. The break up was as follows:
the RTA 6; the Department of Transport 4, the EPA 6, National Parks 4; Fisheries 3;
the Waterways Authority 6; and NSW local government 1.
Desktop research
This involved database searches, literature review and evaluation. Since the scope of
the project was limited to Australia, the range of relevant literature was relatively
contained and much of it related to areas such as policing, and road traffic offences, as
well as OHS. Personal contacts were also utilised, particularly to gain insights to
issues that were not accessible from the literature, and to identify future trends.
Methodology re project outcome (ii)
Here, given the budget constrains and the preferences of Worksafe Australia, the
emphasis was on desktop research, as to principal means of providing the summary
overview/contextualisation of on-the-spot fines within the broader framework of
enforcement tools available and used by OHS agencies in Australia. Desktop research
included literature review and normal sources referred to above, but also focused on
the reports emanating from a range of OHS agencies and others (for example,
Industry Commission Report (1995); McCallum Report (NSW) (1997); and the
current NSW Parliament Standing Committee on Law and Justice Inquiry into
Workplace Safety. However, the opportunity was also taken to explore this issue to
some extent during the process of interviewing in respect of project outcome (i).
Appendix 2 - List of Infringements - NT
This information bulletin lists infringements under the Work Health (Occupational
Health and Safety) Regulations, that could attract an On-the-Spot Fine (Work Health
Infringement Notice). This list will be periodically reviewed and amended as
appropriate.
Regulations description
Valve, fitting, control, guard, safety device or system of plant tampered
withso as to interfere with its safe working
Performing work without the required licence
Cause, permit or employ a person to perform work without the required
licence
Licensed person not supervising an unlicensed person performing work
to gain training for a licence
Record of training not kept of a person under supervision for the purpose
ofobtaining a licence
Number of persons supervised by licensed person is greater than allowed
Prescribed work not notified
Prescribed accident or occurrence not notified
Accident report of a prescribed accident or occurrence not provided
Safe access and egress to, from or within a workplace not provided or
maintained.
Protection against a fall not provided where a worker could be injured
Safety signs not provided at a workplace
First aid equipment not provided or maintained
Supply of drinking water not available at a workplace
Amenities not provided
Amenities not maintained
Exposure to airborne contaminants exceeding the prescribed levels
Exposure to a noise level exceeding 85dB(A) for an 8 hour equivalent
continuous A-weighted pressure level, (LAeq,8h) level of (Lpeak),
(linear)
Worker permitted to enter a confined space without a written entry
permit
Electrical installation, materials, equipment or apparatus does not
comply with AS 3000 or AS 3100
Work is performed m proximity to exposed live electrical equipment or
apparatus
5(e)
15(a)
15(b)
23(1)
23(5)
24(1)
26
46(3)(a)
46(3)(b)
47
47A
50
52
54(a)
54(b)
54(c)
53
56(1)(a)
140db
56(1)(b)
61A(5)
62(2)
63(1)(a)
Cause, permit or employ a worker to work in close proximity to exposed
live electrical equipment or apparatus
Electrical installation at a construction site does not comply with AS
3012
Hand held or portable electrical equipment not protected with a residual
current device
Current material safety data sheet is not provided on request
Containers of hazardous substances not labelled
Register of hazardous substances not maintained
Hazardous substances register is not accessible to all workers with the
potential for exposure to hazardous substances
Use of a hazardous substance for a prohibited purpose
Health surveillance not provided for a worker exposed to a hazardous
substance
Use of a prescribed carcinogenic substance not notified
Not ensure personal protective equipment is worn when provided
Personal protective equipment provided is not maintained
Personal protective equipment not replaced as required under regulation
Personal protective equipment provided not worn or used correctly
Personal protective equipment willfully damaged
Head protection not provided
Eye protection not provided
Hearing protection not provided
Respiratory protection not provided
Hand protection not provided
Not ensure that foot protection is worn
Flotation devices not provided
Safety features on plant not used as intended
Warning devices on plant not used as intended
Safety features on plant not maintained
Warning devices on plant not maintained’
Procedures not in place to allow safe inspection, maintenance and
cleaning of plant
Records of plant not kept or maintained
Use of unregistered designated plant
Use of designated plant without a certificate of inspection in force
Gas cylinder filled when not bearing a current inspection mark
Person lifted by plant in an unsafe manner
Safety belt or harness not provided in a personnel box
Safety belt or harness not used when suspended in a personnel box
63(1)(b)
64
65(1)
67(2)(b)
68(3)(a)
68(4)(a)
68(4)(c)
69
69A
69C
71(1)
72(c)
72(D)(i)
72(d)
74(1)(a)
74(1)(b)
75
76
77
78
79
80
83
87A(2)(h)
87A(2)(h)
87A(2)(j)
87A(2)(j))
87B(b)
87F
94
99
107(4)
110(1)(b)
110(1)(b)(v)
110(1)(b)(v)
Crane or hoist not operated in accordance with AS 2550
Riding on forklift truck without appropriate lifting device
Lifting gear does not comply with relevant standards
Records not kept or maintained as required for amusement structures
Scaffolding does not comply with AS 1576
Scaffold planks do not comply with AS 1577
Fencing not provided or maintained for construction work
Measures not in place to prevent a person being injured by falling
material
Formwork does not comply with AS 3610
Safe access or egress not provided when a worker is in an excavation
Equipment or material near an excavation where there is a likelihood
ofcollapse or material falling into the excavation
Abrasive blasting equipment does not have a positive fast acting release
mechanism to prevent flow of material
Abrasive blasting equipment does not have hose whip checks or hose
coupling safety locks
Over spray from abrasive blasting not controlled
Compressed air, dry brushing or dry sweeping used in work involving
asbestos
Release of asbestos dust to the atmosphere not minimised
Exposure of persons to asbestos dust not minimised
Exposed surfaces at a workplace are not kept free of asbestos dust
Vacuum equipment used to clean up asbestos does not comply with AS
3544
Spray painting not carried out in a spray booth
Operations manual for diving not provided at the workplace
110(4)
110(7)(c)
111(1)
120
133(1)
133(2)
137(1)
138(1)
139(1)
146
147
154(1)(a)
154(1)(b)
156
158
159(a)
159(b)
161(1)
161(2)
166(1)
168
Appendix 3 - Penalty (infringement)
notices - NSW
Alphabetical Index by Key Words
ACCESS
Off Reg
Description
8745 REF
Not Ensure Safety of Employee - N/Provide Safe Access 500
8707 RAH
Not provide safe access to Workplace
500
8708 RAI
Not maintain safe access to Workplace
500
ASBESTOS
$
Off Reg
Description
$
9549 NWN
Employer to allow risk to health of non-employees nonlimpet asbestos
500
9563 NXB
Self-employer allow risk to health of non-employees
non-limpet asbestos
500
BARRIER – SAFETY
Off Reg
Description
$
8709 RAJ
Not provide height Safety Barrier
500
Off Reg
Description
$
8621 QCB
Allow use of Boiler with fittings in incorrect adjustment
500
8623 QCD
Operate Boiler not under continual Supervision by
B./Att.
500
8632 QDC
Employ person contrary to Provisions as Eng. Driver or
B/Att
500
8633 QDD
Employ uncertified Boiler Attendant
500
Off Reg
Description
$
8732 RDC
Ride upon Lifting Medium – Box
50
Off Reg
Description
$
8743 RED
Failure of person to produce Certificate to Inspector
50
BOILER
BOX
CERTIFICATE
CHANGE AREA (Construction Only)
Off Reg
Description
$
9537 NWB
Not ensure welfare of employees not provide change
500
9538 NWC
Not ensure welfare of employees not maintain change
area
500
Description
$
CLOTHING
Off Reg
8504 PAE
Not Ensure Safety of Employee - N/Provide Protective
Clothing
500
8519 PBJ
Not Ensure Safety of Employee - Not Wear Protective
Clothing
500
8534 PDE
Employee not Co-operate with Employer- Protective
Clothing
50
COMPRESSION CHAMBER
Off Reg
Description
$
8717 RBH
Fail to provide Compression Chamber
500
CONFINED SPACE
Off Reg
Description
$
8526 PCG
Not Secure Safety of Employee - Confined Space
500
Off Reg
Description
$
8639 QDJ
Employ person to drive P/Crane without Cert. of
Competency
500
8643 QED
Allow person to drive P/Crane without Cert. of
Competency
500
8647 QEH
Allow person drive P/Crane contrary to Cert. of
Competency
500
8667 QGH
Employ person as Dogman without Cert of Competency
500
8668 QGI
Employ person as Crane Chaser without Cert of
Competency
500
8757 RFH
Not Ensure Safety of Employee - Unauth. Crane
Passenger
500
8760 RGA
Not Ensure Safety of Employee - Drive Crane
Dangerously
500
8635QDF
Drive Power Crane - not holder of Cert. of Competency
50
8637 QDH
Drive Power Crane contrary to purposes specified in
Cert.
50
8654QFE
Act as Crane Chaser - not holder of Cert. of Competency 50
8762 RGC
Employee not take care of safety-Unauth. crane
Passenger
50
8765 RGF
Employee not take care of safety-Drive crane
dangerously
50
CRANE
8778 RHI
Allow person to drive P/Crane without Cert. of
Competency
50
DEMOLITION SITE
Off Reg
Description
$
8509 PAJ
Not Secure Safety of Employee - Not Disconnect gas
(demol)
500
8510 PBA
Not Secure Safety of Employee - Not Disconnect Elec.
(demol)
500
DINING FACILITIES (Construction Only)
Off Reg
Description
$
9539 NWD
Not ensure welfare of employees not provide dining
facilities
500
9540 NWE
Not ensure welfare of employees not maintain dining
facilities
500
Off Reg
Description
$
8676 QHG
Instruct person to act as Diver without Cert of
Competency
500
8712 RBC
Contravene Australian Standard for Diving
500
8713 RBD
Not provide Supervisor at Diving Operation
500
8714 RBE
Not provide Standby Diver at Diving Operation
500
8715 RBF
Not provide Diver's Attendant at Diving Operation
500
8716 RBG
Not provide adequate Diver's Attendants at Diving
Operation
500
8718 RBI
Not provide adequate Personnel at Diving Operation
500
8719 RBJ
Allow Supervisor carry out other Surface Duties: 20-50m 500
8720 RCA
Dive Not cause use of Diver Lifeline
500
8721 RCB
Allow standby Diver to act as Supervisor at Diving
Operation
500
DIVER – DIVING
EAR PROTECTION
Off Reg
Description
$
8517 PBH
Not Ensure Safety of Employee - Not Wear Hearing
Protection
500
8529 PCJ
Employee not Co-operate with Employer - Ear Protection 50
EGRESS
Off Reg
Description
$
8746 REG
Not Ensure Safety of Employee - N/Provide Safe Egress
500
ELECTRICAL – ELECTRICITY
Off Reg
Description
$
8510 PBA
Not Secure Safety of Employee - Not Disconnect Elec.
(demol)
500
8594 PJE
Electrical installation not maintained to avoid shock risk
500
8598 PJI
Electrical equipment not maintained to avoid shock risk
500
8752 RFC
Not Ensure Safety of Employee - Electrical Safety
500
9556 NWU
Employer to allow risk to safety of non-employees not
disconnect electricity
500
957O NX
Self-employer allow risk to safety of non-employees not
disconnect electricity
500
8767 RGH
Employee not take care of safety - Electrical Safety
50
Off Reg
Description
$
8768 RGI
Employee not take care of safety - Other employees
50
EMPLOYEES
EQUIPMENT – LIFTING
Off Reg
Description
$
8738 RDI
Not prevent person riding upon Lifting Medium Platform
500
8741 REB
Not prevent person riding upon Lifting Medium - Tynes
500
8742 REC
Not prevent person riding upon Lifting Medium
500
8747 REH
Not Ensure Safety of Employee - Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee - Unsuitable Lifting
Equipment
500
8759 RFJ
Not Ensure Safety of Employee - Drive FLT Tynes
Raised
500
8731 RDB
Ride upon Lifting Medium - Platform
50
8732 RDC
Ride upon Lifting Medium - Box
50
8734 RDE
Ride upon Lifting Medium - Tynes
50
8735 RDF
Ride upon Lifting Medium
50
8763 RGD
Employee not take care of safety-Drive FLT load raised
50
8774 RHE
Not prevent person riding upon Lifting Medium - Tynes
50
8775 RHF
Not prevent person riding upon Lifting Medium
50
EXCAVATION SUPPORT
Off Reg
Description
$
8514 PBE
Not Secure Safety of Employee - Not Provide Excav'n
Support
500
8525 PCF
Not Secure Safety of Employee - Not use Excavation
Support
500
EXPLOSIVE GAS ZONE
Off Reg
Description
$
8579 PHJ
Use unapproved appliance in Explosive Gas Zone
500
EXPLOSIVE POWER TOOL
Off Reg
Description
$
8671 QHB
Employ person as Explos Power Tool Operator without
Cert
500
8685 QIF
Allow person act as Explos. Power Tool Operator
without Cert.
500
8664 QGE
Act as Explosive Power Tool Operator contrary to Cert.
50
8811 RLB
Allow person to act as Explos. Pow. Tool Op. contrary to
50
Cert
EYE PROTECTION
Off Reg
Description
$
8501 PAB
Not Ensure Safety of Employee - N/Provide Eye
Protection
500
8516 PBG
Not Ensure Safety of Employee - Not Wear Eye
Protection
500
8528 PCI
Employee not Co-operate with Employer - Eye
Protection
50
FALLS PROTECTION
Off Reg
Description
$
9557 NWV
Employer to allow risk to safety of non-employees not
provide fails protection
500
9558 NWW
Employer to allow risk to safety of non-employees not
maintain falls protection
500
9571 NXJ
Self-employer allow risk to safety of non-employees not
provide falls protection
500
9572 NXK
Self-employer allow risk to safety of non-employees not
maintain falls protection
500
FENCE – FENCING
Off Reg
Description
$
8583 PID
Fail to securely fence dangerous Machinery-Drive Belt
500
8584 PIE
Fail to securely fence dangerous Machinery-Drive Pulley 500
8585 PIF
Fail to securely fence dangerous Machinery-Coupling
500
8587 PIH
Fail to securely fence dangerous Machinery-Chain
500
8589 PIJ
Fail to securely fence dangerous Machinery-Nip Point
500
8590 PJA
Fail to securely fence dangerous Machinery
500
9552 NWQ
Employer to allow risk to safety of non-employees not
adequately fence
500
9568 NXG
Self-employer allow risk to safety of non-employees not
adequately fence
500
Off Reg
Description
$
8615 QBF
Not maintain fire escape in good condition
500
8616 QBG
Not maintain fire escape free from obstruction
500
FIRE ESCAPE
FORKLIFT TRUCK
Off Reg
Description
$
8736 RDG
Not prevent person riding upon Load
500
8738 RDI
Not prevent person riding upon Lifting Medium –
Platform
500
8741 REB
Not prevent person riding upon Lifting Medium – Tynes 500
8742 REC
Not prevent person riding upon Lifting Medium
500
8747 REH
Not Ensure Safety of Employee - Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee - Unsuitable Lifting
Equipment
500
8759 RFJ
Not Ensure Safety of Employee - Drive FLT Tynes
Raised
500
8729 RCJ
Ride upon Load
50
8731 RDB
Ride upon Lifting Medium – Platform
50
8732 RDC
Ride upon Lifting Medium – Box
50
8734 RDE
Ride upon Lifting Medium – Tynes
50
8735 RDF
Ride upon Lifting Medium
50
8763 RGD
Employee not take care of safety-Drive FLT toad raised
50
8769 RGJ
Not prevent person riding upon Load
50
8774 RHE
Not prevent person riding upon Lifting Medium – Tynes 50
8775 RHF
Not prevent person riding upon Lifting Medium
50
Off Reg
Description
$
8509 PAJ
Not Secure Safety of Employee - Not Disconnect gas
(demol)
500
8579 PHJ
Use unapproved appliance in Explosive Gas Zone
500
9555 NWT
Employer to allow risk to safety of non-employeenot
disconnect gas
500
9569 NXH
Self-employer allow risk to safety of non-employees not
disconnect gas
500
Off Reg
Description
$
8500 PAA
Not Ensure Safety of Employee - N/Provide Safety Hat
500
8515 PBF
Not Ensure Safety of Employee - Not Wear Safety Hat
500
8527 PCH
Employee not Co-operate with Employer - Safety Hat
50
GAS
HAT – SAFETY
HAZARDOUS SUBSTANCES
Off Reg
Description
$
9550 NWO
Employer to allow risk to health of non-employees
hazardous substance
500
9564 NXC
Self-employer allow risk to health of non-employees
hazardous substance
500
HEARING PROTECTION
Off Reg
Description
$
8517 PBH
Not Ensure Safety of Employee - Not Wear Hearing
Protection
500
8529 PCJ
Employee not Co-operate with Employer - Ear Protection 50
HOIST
Off Reg
Description
$
8640 QEA
Employ person to drive P/Hoist without Cert. of
Competency
500
8644 QEE
Allow person to drive P/Hoist without Cert. of
Competency
500
8648 QEI
Allow person drive P/Hoist contrary to Cert. of
Competency
500
8636 QDG
Drive Power Hoist - not holder of Cert. of Competency
50
8638 QDI
Drive Power Hoist contrary to purposes specified in Cert 50
8779 RHJ
Allow person to drive P/Hoist without Cert. of
Competency
50
IMPROVEMENT NOTICE
Off Reg
Description
$
8573 PHD
Non-compliance with Inspector's improvement Notice
500
8574 PHE
Non-compliance with Inspector's improvement Notice
50
Off Reg
Description
$
8545 PEF
Intentionally Interfere with thing provided for Safety
500
Off Reg
Description
$
8506 PAG
Not Ensure Safety of Employee- Unsecured Ladder
500
8537 PDH
Employee not Co-operate with Employer- Unsecured
Ladder
50
INTERFERE
LADDER
LIFTING EQUIPMENT – MEDIUM
Off Reg
Description
$
8738 RDI
Not prevent person riding upon Lifting Medium –
500
Platform
8741 REB
Not prevent person riding upon Lifting Medium – Tynes 500
8742 REC
Not prevent person riding upon Lifting Medium
500
8747 REH
Not Ensure Safety of Employee - Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee - Unsuitable Lifting
Equipment
500
8759 RFJ
Not Ensure Safety of Employee - Drive FLT Tynes
Raised
500
8731 RDB
Ride upon Lifting Medium – Platform
50
8732 RDC
Ride upon Lifting Medium – Box
50
8734 RDE
Ride upon Lifting Medium – Tynes
50
8735 RDF
Ride upon Lifting Medium
50
8763 RGD
Employee not take care of safety-Drive FLT load raised
50
8774 RHE
Not prevent person riding upon Lifting Medium – Tynes 50
8775 RHF
Not prevent person riding upon Lifting Medium
50
Off Reg
Description
$
8736 RDG
Not prevent person riding upon Load
500
8729 RCJ
Ride upon Load
50
8769 RGJ
Not prevent person riding upon Load
50
LOAD
LOCKER (Construction Only)
Off Reg
Description
9541 NWF
Not ensure welfare of employees not provide locker
9542 NWG
Not ensure welfare of employees not maintain locker
$
MACHINERY
Off Reg
Description
$
8749 REJ
Not Ensure Safety of Employee - Unguarded Machinery
500
8583 PID
Fail to securely fence dangerous Machinery-Drive Belt
500
8584 PIE
Fail to securely fence dangerous Machinery-Drive Pulley 500
8585 PIF
Fail to securely fence dangerous Machinery-Coupling
500
8587 PIH
Fail to securely fence dangerous Machinery-Chain
500
8589 PIJ
Fail to securely fence dangerous Machinery-Nip Point
500
8590 PJA
Fail to securely fence dangerous Machinery
500
MEDIUM – LIFTING
Off Reg
Description
$
8738 RDI
Not prevent person riding upon Lifting Medium –
Platform
500
8741 REB
Not prevent person riding upon Lifting Medium – Tynes 500
8742 REC
Not prevent person riding upon Lifting Medium
500
8747 REH
Not Ensure Safety of Employee - Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee - Unsuitable Lifting
Equipment
500
8759 RFJ
Not Ensure Safety of Employee - Drive FLT Tynes
Raised
500
8731 RDB
Ride upon Lifting Medium – Platform
50
8732 RDC
Ride upon Lifting Medium – Box
50
8734 RDE
Ride upon Lifting Medium – Tynes
50
8735 RDF
Ride upon Lifting Medium
50
8763 RGD
Employee not take care of safety-Drive FLT load raised
50
8774 RHE
Not prevent person riding upon Lifting Medium – Tynes 50
8775 RHF
Not prevent person riding upon Lifting Medium
50
Off Reg
Description
$
8558 PFI
Intentionally Misuse thing provided for Safety
50
Off Reg
Description
$
8736 RDG
Not prevent person riding upon Load
500
8738 RDI
Not prevent person riding upon Ufting Medium –
Platform
500
8741 REB
Not prevent person riding upon Lifting Medium – Tynes 500
8742 REC
Not prevent person riding upon Lifting Medium
500
8747 REH
Not Ensure Safety of Employee - Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee - Unsuitable Lifting
Equipment
500
MISUSE
MOBILE PLANT
8759 RFJ
Not Ensure Safety of Employee - Drive FLT Tynes
Raised
500
8729 RCJ
Ride upon Load
50
8731 RDB
Ride upon Lifting Medium – Platform
50
8732 RDC
Ride upon Lifting Medium – Box
50
8734 RDE
Ride upon Lifting Medium – Tynes
50
8735 RDF
Ride upon Lifting Medium
50
8763 RGD
Employee not take care of safety-Drive FLT load raised
50
8769 RGJ
Not prevent person riding upon Load
50
8774 RHE
Not prevent person riding upon Lifting Medium - Tynes
50
8775 RHF
Not prevent person riding upon Lifting Medium
50
NON – COMPLIANCE
Off Reg
Description
$
8573 PHD
Non-compliance with Inspector's improvement Notice
500
8574 PHE
Non-compliance with Inspector's improvement Notice
50
Off Reg
Description
$
8565 PGF
Not notify - Work related Accident to Employee
500
8566 PGG
Not notify- Work related Health matter to Employee
500
8568 PGI
Not notify - Work related Illness to Employee
500
8569 PGJ
Not notify - Work related Accident to Non-Employee
500
8570 PHA
Not notify - Work related Health matter to NonEmployee
500
8571 PHB
Not notify - Work related Safety matter to NonEmployee
500
8572 PHC
Not notify- Work related Illness to Non-Employee
500
NOT NOTIFY
NOTICE – IMPROVEMENT
Off Reg
Description
$
8573 PHD
Non-compliance with Inspector's improvement Notice
500
8574 PHE
Non-compliance with Inspector's improvement Notice
50
OVERHEAD PROTECTION
Off Reg
Description
$
8508 PAJ
Not Ensure Safety of Employee - Not Provide O/Head
Protection
500
8522 PCC
Not Ensure Safety of Employee - Not use O/Head
Protect'n
500
8710 RBA
Not provide adequate Overhead protection
500
9551 NWP
Employer to allow risk to safety of non-employees
500
9565 NXD
Self-employer allow risk to safety of non-employees not
provide overhead protective structure
500
Off Reg
Description
$
8511 PB8
Not Secure Safety of Employee - Platform Width <
450mm
500
8738 RDI
Not prevent person riding upon Lifting Medium Platform
500
8731 RDB
Ride upon Lifting Medium - Platform
50
Off Reg
Description
$
8670 QHA
Employ person as Powderman without Cart of
Competency
500
8677 QHH
Instruct person to act as Powderman without Certificate
500
8684 QIE
Allow person to act as Powderman without Certificate
500
8656 QFG
Act as Powderman - not holder of Cert. of Competency
50
8796 RJG
Allow person to act as Powderman without Certificate
50
PLATFORM
POWDERMAN
PREMISES – UNLICENSED
Off Reg
Description
$
8575 PHF
Keep dangerous goods in Unlicensed Premises
500
8576 PHG
Keep dangerous goods on Unlicensed Premises
500
PRESSURE VESSEL
Off Reg
Description
$
8618 QBI
Fail to have current Certificate of Inspection-Press.
Vessel
500
8620 QCA
Not maintain Pressure Vessel in safe working condition
500
8622 QCC
Allow use of Press.Vessel -fittings in incorrect
500
adjustment
PROTECTION – FALLS
Off Reg
Description
$
9557 NWV
Employer to allow risk to safety of non-employees not
provide falls protection
500
9558 NWW
Employer to allow risk to safety of non-employees not
maintain falls protection
500
9571 NXJ
Self-employer allow risk to safety of non-employees not
provide falls protection
500
9572 NXK
Self-employer allow risk to safety of non-employees not
maintain falls protection
500
PROTECTION – OVERHEAD
Off Reg
Description
$
8508 PAJ
Not Ensure Safety of Employee - Not Provide O/Head
Protection
500
8522 PCC
Not Ensure Safety of Employee - Not use O/Head
Protect'n
500
8710 RBA
Not provide adequate Overhead protection
500
9551 NWP
Employer to allow risk to safety of non-employeesnot
provide overhead protective structure
500
9565 NXD
Self-employer allow risk to safety of non-employees not
provide overhead protective structure
500
Off Reg
Description
$
8744 REE
Failure of person to produce Permit to Inspector"
50
PERMIT
PERSONAL PROTECTIVE EQUIPMENT
Off Reg
Description
$
8500 PAA
Not Ensure Safety of Employee – N/Provide Safety Hat
500
8501 PAB
Not Ensure Safety of Employee - N/Provide Eye
Protection
500
8503 PAD
Not Ensure Safety of Employee - N/Provide Respir.
Protection
500
85O4 PAE
Not Ensure Safety N/Provide Protective Clothing
500
8515 PBF
Not Ensure Safety of Employee - Not Wear Safety Ha
500
8516 PBG
Not Ensure Safety- of Employee - Not Wear Eye
Protection
500
8517 PBH
Not Ensure Safety of Employee - Not Wear Hearing
Protection
500
8518 PBI
Not Ensure Safety of Employee - Not Wear Respiratory
Protection
500
8519 PBJ
Not Ensure Safety of Employee - Not Wear Protective
Clothing
500
8527 PCH
Employee not Co-operate with Employer - Safety Hat
50
8528 PCI
Employee not Co-operate with Employer- Eye Protection 50
8529 PCJ
Employee not Co-operate with Employer - Ear Protection 50
8532 PDC
Employee not Co-operate with Employer - Resprtry.
Protection
50
8534 PDE
Employee not Co-operate with Employer - Protective
Clothing
50
Off Reg
Description
$
8753 RFD
Not Ensure Safety of Employee - Not provide safe plant
500
8754 RFE
Not Ensure Safety of Employee - Not maintain safe plant 500
PLANT
PLANT – MOBILE
Off Reg
Description
$
8736 RDG
Not prevent person riding upon Load
500
8738 RDI
Not prevent person riding upon Lifting Medium –
Platform
500
8741 REB
Not prevent person riding upon Lifting Medium – Tynes 500
8742 REC
Not prevent person riding upon Lifting Medium
500
8747 REH
Not Ensure Safety of Employee - Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee - Unsuitable Lifting
Equipment
500
8759 RFJ
Not Ensure Safety of Employee - Drive FLT Tynes
Raised
500
8729 RCJ
Ride upon Load
50
8731 RDB
Ride upon Lifting Medium – Platform
50
8732 RDC
Ride upon Lifting Medium – Box
50
8734 RDE
Ride upon Lifting Medium – Tynes
50
8735 RDF
Ride upon Lifting Medium
50
8763 RGD
Employee not take care of safety-Drive FLT load raised
50
8769 RGJ
Not prevent person riding upon Load
50
8774 RHE
Not prevent person riding upon Lifting Medium – Tynes 50
8775 RHF
Not prevent person riding upon Lifting Medium
50
RESPIRATORY EQUIPMENT
Off Reg
Description
$
8503 PAD
Not Ensure Safety of Employee - N/Provide Respir.
Protection
500
8518 PBI
Not Ensure Safety of Employee - Not Wear Respiratory
Protection
500
8532 PDC
Employee not Co-operate with Employer - Resprtry.
Protection
500
Off Reg
Description
$
8679 QHJ
Allow person to act as Rigger without Cert of
Competency
500
Off Reg
Description
$
8500 PAA
Not Ensure Safety of Employee - N/Provide Safety Hat
500
8501 PAB
Not Ensure Safety of Employee - N/Provide Eye
Protection
500
8503 PAD
Not Ensure Safety of Employee - N/Provide Respir.
Protection
500
8504 PAE
Not Ensure Safety of Employee - N/Provide Protective
Clothing
500
8506 PAG
Not Ensure Safety of Employee - Unsecured Ladder
500
8507 PAH
Not Ensure Safety of Employee - Not Provide Catch
Scaffold
500
8508 PAJ
Not Ensure Safety of Employee - Not Provide O/Head
Protection
500
8509 PAJ
Not Secure Safety of Employee - Not Disconnect gas
(demol)
500
8510 PBA
Not Secure Safety of Employee - Not Disconnect Elec.
{demol)
500
RIGGER
SAFETY
8511 PBB
Not Secure Safety of Employee -Platform Width Less
Than 450
500
8512 PBC
Not Secure Safety of Employee - Not Provide Scaffold
H/Rail
500
8513 PBD
Not Secure Safety of Employee - Not Provide Scaffold
T/Board
500
8514 PBE
Not Secure Safety of Employee – Not Provide Excav'n
Support
500
8515 PBF
Not Ensure Safety of Employee - Not Wear Safety Hat
500
8516 PBG
Not Ensure Safety of Employee - Not Wear Eye
Protection
500
8517 PBH
Not Ensure Safety of Employee - Not Wear Hearing
Protection
500
8518 PBI
Not Ensure Safety of Employee - Not Wear Respiratory
Protection
500
8519 PBJ
Not Ensure Safety of Employee - Not Wear Protective
Clothing
500
8522 PCC
Not Ensure Safety of Employee -Not Wear O/Head
Protect'n
500
8523 PCD
Not Secure Safety of Employee - Not use Scaffold Hand
500
Rail
8524 PCE
Not Secure Safety of Employee - Not use Scaffold Toe
Board
500
8525 PCF
Not Secure Safety of Employee - Not use Excavation
Support
500
8526 PCG
Not Secure Safety of Employee Confined Space
500
8545 PEF
Intentionally Interfere with thing provided for Safety
500
8745 REF
Not Ensure Safety of Employee N/Provide Safe Access
500
8746 REG
Not Ensure Safety of Employee-N/Provide Safe Egress
500
8747 REH
Not Ensure Safety of Employee-Defective Lifting
Equipment
500
8748 REI
Not Ensure Safety of Employee-Unsuitable Lifting
Equipment
500
8749 REJ
Not Ensure Safety of Employee Unguarded Machinery
500
8750 RFA
Not Ensure Safety of Employee – Unsuitable Scaffolding 500
8751 RFB
Not Ensure Safety of Employee - Unsafe Scaffolding
500
8752 RFC
Not Ensure Safety of Employee - Electrical Safety
500
8753 RFD
Not Ensure Safety of Employee - Not provide safe plant
500
8754 RFE
Not Ensure Safety of Employee - Not maintain safe plant 500
8755 RFF
Not Ensure Safety of Employee - Not provide safe work
system
500
8756 RFG
Not Ensure Safety of Employee - Not maintain safe work
500
system
8757 RFH
Not Ensure Safety of Employee - Unauth. Crane
Passenger
500
8759 RFJ
Not Ensure Safety of Employee – Drive FLT Tynes
Raised
500
8760 RGA
Not Ensure Safety of Employee - Drive Crane
Dangerously
500
PDJ
Employee not Co-operate in Safety requirements
50
8558 PFI
Intentionally Misuse thing provided for Safety
50
8762 RGC
Employee not take care of safety-Unauth. crane
Passenger
50
8763 RGD
Employee not take care of safety-Drive FLT load raised
50
8765 RGF
Employee not take care of safety-Drive crane
dangerously
50
8767 RGH
Employee not take care of safety - Electrical Safety
50
8768 RGI
Employee not take care of safety - Other employees
50
SAFETY BARRIER
Off Reg
Description
$
8709
RAJ Not provide height Safety Barrier
500
Off Reg
Description
$
85OO PAA
Not Ensure Safety of Employee - N/Provide Safety Hat
500
8515 PBF
Not Ensure Safety of Employee - Not Wear Safety Hat
500
8527PCH
Employee not Co-operate with Employer - Safety Hat
50
Off Reg
Description
$
8507 PAH
Not Ensure Safety of Employee - Not Provide Catch
Scaffold
500
8512 PBC
Not Secure Safety of Employee - Not Provide Scaffold
H/Rail
500
8513 PBD
Not Secure Safety of Employee - Not Provide Scaffold
T/Board
500
8523 PCD
Not Secure Safety of Employee - Not use Scaffold Hand 500
Rail
SAFETY HAT
SCAFFOLD
8524 PCE
Not Secure Safety of Employee - Not use Scaffold Toe
Board
500
8666 QGG
Employ person as Scaffolder without Cert of
Competency
500
8680 QIA
Allow person to act as Scaffolder without Cert of
Competency
500
8750 RFA
Not Ensure Safety of Employee - Unsuitable Scaffolding 500
8751 RFB
Not Ensure Safety of Employee - Unsafe Scaffolding
500
9559 NWX
Employer to allow risk to safety of non-employees not
provide catch scaffold
500
956O NWY
Employer to allow risk to safety of non-employees not
maintain catch scaffold
500
9573 NXL
Self-employer allow risk to safety of non-employees not
provide catch scaffold
500
9574 NXM
Self-employer allow risk to safety of non-employees not
maintain catch scaffold
500
SUBSTANCES – HAZARDOUS
Off Reg
Description
$
9550 NWO
Employer to allow risk to health of non-employees
hazardous substances
500
9564 NXC
Self-employer allow risk to health of non-employees
hazardous substances
500
SUPPORT – EXCAVATION
Off Reg
Description
$
8514 PBE
Not Secure Safety of Employee - Not Provide Excav'n
Support
500
8525 PCF
Not Secure Safety of Employee - Not use Excavation
Support
500
SYSTEM – WORK
Off Reg
Description
$
8755 RFF
Not Ensure Safety of Employee - Not provide safe work
system
500
8756 RFG
Not Ensure Safety of Employee - Not maintain safe work
500
system
TOILETS (Construction Only)
Off Reg
Description
$
9543 NWH
Not ensure welfare of employees not provide toilets
500
9544 NWI
Not ensure welfare of employees not maintain toilets
500
TOOLS - EXPLOSIVE POWER
Off Reg
Description
$
8671 QHB
Employ person as Explos Power Tool Operator without
Cert
500
8685 QIF
Allow person act as Explos,Power Tool Operator without
500
Cert
8664 QGE
Act as Explosive Power Tool Operator contrary to Cert.
8811.RLB
Allow person to act as Explos.Pow. Tool Op. contrary to
50
Cert
50
TYNES
Off Reg
Description
$
8741 REB
Not prevent person riding upon Lifting Medium – Tynes 500
8734 RDE
Ride upon Lifting Medium – Tynes
8774 RHE
Not prevent person riding upon Lifting Medium – Tynes 500
500
UNLICENSED PREMISES
Off Reg
Description
$
8513 PHF
Keep dangerous goods in Unlicensed Premises
500
8514 PHG
Keep dangerous goods on Unlicensed Premises
500
VESSEL-PRESSURE
Off Reg
Description
$
8618 QBI
Fail to have current Certificate of Inspection-Press,Vessel 500
862O QCA
Not maintain Pressure Vessel in safe working condition
500
8622 QCC
Allow use of Press. Vessel -fittings in incorrect
adjustment
500
WASHING FACILITIES (Construction Only)
Off Reg
Description
$
9545 NWJ
Not ensure welfare of employees not provide washing
facilities
500
Not ensure welfare of employees not maintain washing
facilities
500
Off Reg
Description
$
8540 PEA
Employee not Co-operate in Welfare requirements
50
9546 NWK
WELFARE
WORKERS COMPENSATION
Off Reg
Description
$
4976 QVG
Manager mine/quarry contravene S.90(1) - register of
injuries
500
4977 QVH
Occupier factory/workshop/office/shop contravene
S.90(1) - register of injuries
500
4978 QVI
Not forward claim/documents to insurer within 7 days
500
4979 QVJ
Not provide further information to insurer within 7 days
500
4980 OWA
Not pay compensation money as soon as practicable
500
4986 QWG
Not keep correct wage records
500
4987 QWH
Not keep correct livelihood records
500
4988 QWI
Not keep correct prescribed records
500
4989 QWJ
Not retain wage/livelihood/prescribed records in good
order/condition for 7 years
500
4990 QXA
Not keep wage/livelihood/prescribed records in
prescribed manner
500
4991 QXB
Not comply S.174(5)(a) order- information to
Authority/insurer
500
4992 QXC
Not comply S.174(5)(b) order -Authority/insurer inspect
records
500
4993 QXD
Not comply S. 174(6A) order - records to
Authority/insurer
500
4994 QXE
Obstruct/delay person exercising S.174(7) – power
inspect/copy/extract records
500
4975 QVF
Not comply S.43(2) - provision of information
200
4981 QWB
Employer/insurer not supply medical report within 10
days
200
4982 QWC
Obstruct/hinder rehabilitation counsellor's inspection
200
4983 QWD
Not comply S.161 (1) Notice within 21 days/time
specified/allowed
200
4984 QWE
Not keep register of policies with required particulars
200
4985 QWF
Not retain policy/claim records in good order/condition
200
for 7 years
4995 QXF
Manager mine/quarry contravene S.269 - post summary
of Act
200
4996 QXG
Occupier factory/workshop/office/shop contravene S,269 200
- post summary of Act
4997 QXH
Employer/employer's agent refuse to supply information
to worker
200
4998 QXI
Employer/employer's agent supply false/misleading
information to worker
200
9514 NVF
Not establish rehab. program within req. time - large
employer
200
9515 NVH
Not display/notify rehabilitation program - large
employer
100
9516 NVE
Not establish rehab. program within req. time - small
employer
50
9517NVG
Not display/notify rehabilitation program - small
employer
20
Off Reg
Description
$
8755
RFF Not Ensure Safety of Employee - Not provide safe
work system
500
8756
RFG Not Ensure Safety of Employee - Not maintain safe
500
work system
WORK SYSTEM