RESTORATIVE AND RESPONSIVE REGULATION
funded state OHS agency and would call them in ChapterS whenever a serious breach occurred. 6. The above set of five propositions are conditions where business and OHS regulators could be expected to commit to restorative and responsive justice where business takes Restorative and Responsive active responsibility for restorative justice inscribed in Regulation of OHS enforceable undertakings. After making a case for each of these propositions in turn, I will briefly describe the kind of restorative and responsive justice they might enable. The lateral aspect of the proposal is about the John Braithwaite connections between the propositions. A 'Naderesque' approach is seen as the path to more innovative (in Australian terms, Allan 'Felsesque') OHS enforcement. 'Naderism' and 'Felsism' are seen This chapter argues for. six propositions to advance a lateral together as ways of securing credible sanctions that are actually approach for the restorative and responsive regulation of used by the courts. Credible sanctions enable credible discounts for pational health and safety (OHS). These propositions are as fOI~~wcu- excellent OHS management and credible bounties for private s. enforcement. All this paradoxically opens a path to a restorative 1. Very high maximum financial and other penalties are justice approach to OHS based on collaborative problem solving needed for OHS offences. These need only be used rarel among employers, workers and government. In this vision, the but they need to be large enough to allow big penal~ agent that needs to think laterally in order to trigger such a set of dlsco,;nts for good OHS management and to pay for large cascading possibilities is the trade union movement. It has both the bounties to workers or unions who launch successful ri- vate prosecutIOns. p triggering capability and an interest in pulling the triggers for the six propositions as a path to enhanced relevance and union 2. Because A~stralians support severe punishment of OHS membership. offenders, mnovative OHS agency heads (in the manner of f?nner AustralIan Competition and Consumer Commis sIOn (ACCC) Chair Allan Fels) can publicise egregious Community support for very high maximum under-pumshed Cases m ways that make successful calls ORS penalties for very hIgh maxImum penalties. Australians, like citizens of all other countries from which I have 3. In a world of very high maximum penalties with large seen evidence on this question (Grabosky, Braithwaite and Wilson penalty dIscounts for credible OHS management, most 1987), think OHS offences are very serious matters which should be fmTIs can be nudged to establish credible OHS manage very severely punished. In an Australian Institute of Criminology ment. survey of 2551 Australians in 1986 (Grabosky, Braithwaite and 4. In a world with large penalty discounts for credible OHS Wilson 1987), the respondents thought serious OHS offences deser management, workers and unions would rarely find it ving of considerably more punishment than armed robbery, child lucrative to launch pnvate prosecutions against employers bashing, wife-bashing and burglary. Of course convicted offenders wIth Impressive OHS performance. of the latter type then, as now, get much heavier punishment and are vulnerable to longer maximum prison terms than OHS offen 5. laws which only allow private prosecutions by U~der ders. Of the 14 offences rated in that survey, only stabbing a victim umons and workers where the state OHS agency fails to to death and heroin trafficking were rated as more serious. Sub take enforcement action, business would support a well stantial minorities of up to 32 per cent of Australians thought the
194 195 RESTORATIVE AND RESPONSIVE REGULATION OHS REGULATION FOR A CHANGING WORLD OF WORK
The problem has been worst in New South Wales where 160 serious OHS offences should attract long prison terms. These barristers have been referred, by the Commissioner, for investi offences of a type which had never resulted in anyone . . gomg gation with a view to criminal prosecution. In the media, this prIson up to that time. Most recommended fines, however. The nforcement campaign has been extremely popular WIth the people average fme recommended. for one offence that was based on areal e f New South Wales and also seems to have been effective. The S. outhA ustralIan OHS case was 200 times higher than that actual! ~mount of tax paid by New South Wales barristers increased by 36 Imposed by the South Australian court concerned. So why dod; er cent in 2001 in terms adjusted to the consumer prIce mdex, democratically elected governments punish OHS offences t th ~ompared to 1998 (Commissioner of Ta;ation 2001, P 61). Multi level the community wants? a e million dollar tax penalties for AustralIa s rIcllest mdIVlduals and OHS penalties are considerably higher today than they were corporations have become much more common. Mr Carmody then, although they are still much lower than in many t! . N 08 attracted particular interest and support from the AustralIan com countrIes. ew South Wales has the highest penalties - a maximum munity when he took Australia'S richest man, WIthout much penal~ of $825,000 for a repeat offence by a corporation or $550,000 success, right up to the High Court. for a fIrst off~nc,:. By very high penalties, in my proposition 1 What can the political logiC be of this new phenomenon of a above, I am thmkmg of penalties that might reach $100 rru'III' 'h h' . on, so Carmody or a Fels even taking on the most powerful medIa barons we rrug t see t e eIght fIgure penalties that we now quite fre- in Australia? Why has that not proved politically fatal for then:? In quently. Isee '1 under the Australian Trade Practices Act. In the next 1986 Australians gave serious OHS offences more than three tImes sectIOn, WI I try to tell the story of how the ACCC came to acqu' the seriousness score of serious tax evasion. Yet OHS enforcers stIli such enforcement capabilities. However, the Allan Fels story is I~~ rarely put the most rich and powerful Australians in the dock. th;, only one of this kind one could tell. There is also the story ~f MIchael Carmody, the Australian Commissioner for Taxation In the 1986 study, Of Manners Gentle: Enforcement Strategies' of Allan Fels and his merry men and women Australtan Busmess Regulatory Agencies, Grabosky and Braithwaite's I will tell in some detail the story of the rise of Allan Fels's fame as a (1986, p 221) multivanate analysis classified most State OHS agen slayer of corporate dragons from the pe;spective of a semi-insider. CIes alo~gsIde the Australian Taxation Office In one of the 'token An argument against domg thIS IS that It makes me ~ppear full of enforcer groups. T~ese. agencies initiated a steady flow of prose my self-importance. However, for someone who wrItes about the cutIOns that led to derIsory average penalties which can only be significance of hope and self-efficacy in struggles to change the way mterpreted as a slap on the wrist' (Grabosky and Braithwaite 1986 we respond to powerful corporations, there is some ,virtue mixed p 226). However, the sharp end of tax enforcement has becom~ up in the vice of having too much of a sense of one s self-unpo; much sharper, in comparison to OHS. In 2003 a fatller and son were tance. OHS enforcers tend to have an impoverished sense of theIr fmed a record $53 million for tax evasion by their family business self-efficacy. If they see merit in my six-P?int prop?sal, they will and m a separate court case ordered to repay $9.2 million in evaded tend to be devoid of any hope for the polItIcal feaSIbIlIty of over tax plus mterest (Sydney Morning Herald, 28 June 2003). Sixty people comin" the resistance it would engender from powerful busmess were Impnsoned for Commonwealth tax fraud in 2002 and that interests. My colleagues in the consumer movement felt that way in number IS expected to be much higher for 2003. How many OHS 1982 about the impossibility of putting backbone mto the enforce offenders have gone to jail this year? Are there any? The most ment of the Trade Practices Act when I became Director of the aggressIve. campaign of Michael Carmody has been against the Australian Federation of Consumer Organisations (AFCO). So I tell non-~omplIance of the legal profession. We have seen the spectacle the story as a semi-insider's account to enliven my attempt to instil ?f a Judge bemg sent down from Queensland to try a Victorian hope among fatalistic thinkers about regulation. Nonetheless, I Judge arrud a f1~rry of media interest in 'white wig criminals'. The want to emphasise at the outset that my personal contrIbutIon to Judge had had SIX prIor tax convictions when he was appointed to shaping these events was very minor indeed in comparIson to all the bench, something he dId not disclose at the time of the appoint the other people I will mention in my account and a great many ment (The Age, 9 March 2001). others who are not mentioned.
197 196 OHS REGULATION FOR A CHANGING WORLD OF WORK RESTORATIVE AND RESPONSIVE REGULATION
At AFCO we made it one of our ca " ' .. highlight the abysmally infrequent and 10:paIg~mg pnonties to While Attorney-General Gareth Evans did much to strengthen both State consumer affairs a encies a d th pena tIes Imposed by the enforcement capabilities of the Act, Prime Minister Hawke was Practices Commission (TPC)r Th t tl e ACCC (then the Trade keen to please the Business Council with the Chairman he appoin V of the Trade Practices Act) ~ena~ie~ ~m~~~:~~er th:o~~tion. (Part ted. Their nominee, Bob McComas, was a Director of Australia's durmg ItS first 10 years ranged from $500' h 1 mnusslon largest tobacco company and was not aggressive in his enforcement of the Act. McComas' worst mistake came after a complaint from ~~~~~4~~:nt~~:~~';e~~e:,:b~~r t'1~: fine c~lecl~o~se(l ~~~~~ {~~rt~~ anti-tobacco groups about a Tobacco Institute advertisement had put imprisonment into orney- eneral, LIOnel Murphy, arguing that inhaling passive tobacco smoke was harmless. In a available sanctions but this ;:e Trade Pra~lces Act as one of the considerable feat of poor judgment, McComas personally the Act by the sub~equent cons::::~~eus~ and wa~ excised from negotiated a remedial advertisement with the Tobacco Institute. Business and Consumer Affairs hn H g vernment s Mmlster for (He negotiated it in a 'smoke-filled room' as the joke in the Com for competition (Part IV) breach~~oof th o:~r:. Aggregate penalties mission went.) McComas not only had been a Director of the ranged from zero in the two lowest e c etween 1974 and 1984 leading tobacco company, he became its Chairman when he left the rs t aggressive year in the first decad:e:f th~ $!~~,O~f for th~ most Commission. My argument within the Commission was that ?,endatIons m Braithwaite, Vale and Fisse's (1984)' AFC~eRlecom McComas either should have removed himself from negotiating the mcreased cash fines e . ty f eport - remedial advertisement or at least had another Commissioner publicity orders comm' uqmu~ty mes, cordPorate probation, adverse in the room from the other side of the fence, when the deal was • I serVIce or ers enf . . and Improved resourcing of enf ,orcement trammg negotiated. Moreover, the claims in the remedial advertisement he orcement - all but eq 'ty f I now been implemented at the ACCC d" U! mes laVe approved were still false, so he had approved a further breach of the last of these reforms was not t' a~ m Its statute, although the Trade Practices Act in the process of supposedly enforcing it. was much discussed in the m dPu m P ace untIl 2001. The report Others in the Commission were also angry and a front-page story e la and some of the d' . . S tate parliaments, such as Queensland I d t . hlscusslOn m appeared about dissatisfaction in the Commission with the way the · lk P ,e 0 mmor c ange - th .B je e- etersen government introduced 1 . '. e Chairman handled the settlement. This emboldened AFCO and In cash penalties for cons a ~ost ImmedIate Increases Action on Smoking aIld Health (ASH) to launch a private action in · umer protectIOn offences H noth mg was happening on the federal front. . owever, the Federal Court that argued the Commission had approved a Part of the AFCO campaign f remedial advertisement in response to their complaint which itself the TPC was to lObby the Attorn~r _~more aggressive approach by was a breach of its Act. The Federal Court accepted this argument, ment representative as a art-tim!C ener~l !or a conSU1l1er move in finding that the evidence did indicate that passive smoking was on enforcement decision~making A~n1ffilsslOne~ who could sit in dangerous to health. The decision had a substantial national and our chance when two part-time' Co er :epeate rebuffs, we got international impact in banning smoke-filled .rooms! The case was the beginning of the end for McComas with the goven1ffient ;;,~:~~mt~~i~Ft~~ I;:!~~:~ succ;s~~~~~:::u:~r~/rte°~~~~ deciding he would not be reappointed. His successor Bob Baxt, chicken coup' campaign wh' ~s puttmg foxes in charge of the while also a nominee of the Business Council, was a more aggres government. On the next occal~onattract~~ ba~publicity for the sive enforcer of the Act and his successor, Allan Fels, much more appointed it was a former A ~ alar Cme ommlSSlOner was aggressive again. council member who AFCO h:~ ala,: onsumers' Association In the middle of McComas' term, John Wood, the Director of Professor David Harland. A year I~o,:,~nated to the government, the Federal Bureau of Consumer Affairs, led an argument to the time COmmissioner which el was appomted as a part government that there should be a full-time tI'ade practices Com years when the con~umer m~~r;:mence d a period of more than 10 missioner from a consumer movement background. Alan Asher, on the Commission. ment had placed two of its leaders former Public Affairs Director of the Australian Consumers' Asso ciation, was appointed and later promoted to Deputy Chairman. Asher had a huge impact on enforcement thinking at the
198 199 OHS REGULATION FOR A CHANGING WORLD OF WORK RESTORA nVE AND RESPONSIVE REGULA nON
Commission, particularly On the USe of enforceable (Parker 2003a and 2003b), adverse publicity and h' hun,lertakiJn:\ts r01lsUlm"rmovement had not worked effectively with ilie ACTU on The Fels-Asher team, with extremel com Ig er Y··U.J.tte:Sf things. In his early years, the backing Fels enjoyed from the ACCC staff led by CEO Hank Spier, fold th~~~~~~ ~~~~ort from particularly his former friend Bill Kelty, was obviously people of why specific acts of corporate misconduct we: I->.CISlt·ali'ln much more important than the support he continued to enjoy from and why enforcement should be much more . e egreg:i011S the consumer movement as we sung his praises to the government. historically been. They were both good st atggrll esslve than Like Taxation Commissioner Carmody, Fels was generally deeply Lead' orye ers on the m d' resented, even hated, by big business. Again, like Carmody, this mg consumer advocates of the period _ lik R' e lao (who later worked for the Commission) L' C e obm Brown was not politically fatal. Even after the Howard government was served as a part-time Commissioner) a~d ~a . arver (who later elected and support from the ACTU became a minus rather than a nated. by the government to succeed Asher OUlS~ Sylvan (nomi_ plus, Howard reappOinted Fels. The political genius of Fels is that came m behind the Commission re as . eputy Chatr)_ he used his initial support from the ACTU and the consumer the story. Fels and Asher ProV~d ~s r~leases addl11g more zest to movement, combined with his position as head of an independent responsive regulatory imagination ~ ave ~hat I would calla statutory authority, to cultivate support through the media from publicity and multi-million dol!a~ ~y use jthe specll'e of the small business and from ordinary Australians who saw him as their motivate highly creative informal settl es;,' t lelr big cases to consumer champion, the only regulator with ilie gu ts to stand up to undertakings after they were introduce~~~~~9~n~ t~e~enforceable big business. Being hated by big business was popular with the thIs strategy at the Commission see Parker 2003 01 a ISCUSSlOn of Australian people. The Howard government didn't much like what and Braithwaite 1992, especial!~ ch l' F" d a and 2003b; Ayres Fels was doing, but he was· too popular to sack. Fels's final triumph The undertakings often involved lar 'e Isse an BraIthWaite 1993). was to persuade Prime Minister Howard to include imprisonment one case of $100 million) and . d g c~mpensatlOn payments (in as a sanction under Part IV of the Trade Practices Act. In the 1970s external monitoring of trade m ~pen ent revIew, revision and John Howard as Minister for Business and Consumer Affairs had strategy spawned a new tr prac ces comphance systems. TI,e taken imprisonment out of (Part V of) the Act. industry and a new trade ad~ practlce~ compliance consultancy Pessimists about putting backbone into enforcement capability Parker 2002). prachces comphance professionalism (see against big business might say there is a lot of contingency in this Asher's appointment to the Co '. r story. Fels was not on his own. The push for effective enforcement sslOn from Alan Asher, John Wood, Liza Carver, Robin Brown and others attracted howls of protest from tI e b m:m , Ike mine, had financial press. In contrast the: ,:,smess commul11ty and ilie from the consumer movement who found themselves in govern smooth, pushed by the le~dershi p~~l11tment of Allan Fels was mental positions was also important but this is not so contingent a Trade Unions (ACTU) d P the Austrahan Council of story. It is a standard story of social movements infiltrating the Prime Minister and Tre:~ur~;n;te;:;':;tly embr~ced by both the state that is well documented in other literatures such as those on other side of the big end ft' d an appomtment from the the infiltration by the women's movement to become 'femocrats' o own an we In the co ment were marginal, probabl irrelev' nsumer move- (Sawer 1990). Compared to the women's, trade union and environ appointment. However Louise S I ant,. 111 supportmg the Fels ment movements, the consumer movement was able to infiltrate · j , y van m particular had b work mg lard at educating the ACTU I d . een the state and influence enforcement capability while being a Practices Act was important Th ea ershlp on why the Trade comparatively weak political force. The business appointees to the with the ACTU in I bb' . f e consumer movement also worked agency made some mistakes that the consumer movement was able which Fels served ~s YC'hng or a Pbncfes S,:,rv~illance Authority, of to exploit. While the particular mistakes were contingencies, all aIrman e ore Jommg th ACCC whose st~f was. later absorbed into the ACCC be. ' an~ actors make mistakes that non-government organisations (NGOs) of ItS utlhhes pncing work. With ACTU I ,ecommg the hemt can expose in the public arena. Fels was lucky to have an out ber of the committee chaired by Pa I Kea~ers, ~had been a mem standing group of senior staff to work with. However, good leaders Economic Summit th d u ea mg om the National who do not inherit such riches can create them, as one could argue at rafted the Pnces SlI17Jeillnl1ce Act. The is closer to the story of Michael Carmody in taxation. Having a
200 201 OI-IS REGULATION FOR A CHANGING WORLD OF WORK RESTORATIVE AND RESPONSIVE REGULATION degree of independence through head· opposed to answering to a minister mg a statutory authority, ·'f'o,, Private prosecutions GUmlingham and Johnstone (1999, p 335) argue that 'OHS prose cutions might be initiated by parties affected by poor OHS 202 203 OHS REGULATION FOR A CHANGING WORLD OF WORK RESTORATIVE AND RESPONSIVE REGULA nON management (for example, trade unions and public interest groups) A structural analysis of such robu~t private prosecution if the OHS agency does not, and if the alleged contravention falls ca ability is that it might attract union hhgatlOn not so much to within the OHS agency's prosecution guideline'. My suggestion is Pke money as to spearhead unionisation pushes In workplaces, to make this policy more aggressive by not only allowing it but ~~ere the costs of this might be fully or partially funded by the encouraging it, by enabling private parties who launch successful ble damages from the legal actions. The other Side of the struc prosecutions to claim a healthy proportion (say half) the very large ~:al analysis is that it would create conditions where employers fines available under my proposal. On the other hand, I Would actually lobby for the resourcing of government Inspectorates to make the private prosecution policy more restrictive by barring iti£ displace 'rogue' union enforcers. the OHS agency takes any enforcement action consistent with its enforcement policy even if that is not a prosecution. So if the OBs agency takes the restorative justice route and successfully nego' Tripartite restorative and responsive justice tiates an enforceable undertaking that is credible to the court iri terms of the agency's published enforcement policy, then the COUrt From a restorative justice perspective, there. ca~ be virtue in would strike down the private prosecution. The idea of this is to allowing private prosecutions. Resto,.ative juShC: IS partly about give the firm an incentive to call in the OHS agency and staft empowering victims in criminal justice and quahfylng histOrically negotiating an enforceable undertaking that is credible in order to recent state monopolies of enforcement. It is restorahve JUSti~: fend off private prosecutions. Of course, this will backfire for the thinking in German criminal law, for example, that sees tod~y firm when the OHS agency decides to reject all leniency and rape trials often with two, prosecutors present - one representmg prosecute with the full force of its powers. When there are large the state, the other the victim (often funded by .state legal md). sentence discounts for internal management systems, the credibility Restorative justice philosophy is about equal consld:ratlOn for the of which has been regularly certified by independent outside justice. c1· alms of defendantsI victims and commumtles affected by auditors, having such systems in place is another way of staving off the alleged crime. 11 private prosecutions. The large sentence discount makes the private With OHS the idea of the state, workers and employers a prosecution less economic because of the discounted recovelY but beincr able to ~ke credible enforcement action against each other IS also less likely to succeed because of the greater difficulty of that ~~ch will display an enforcement pyramid to the. others that proving that a corporation has a culture of OHS recklessness when will motivate all to sit together in the restorahve Justice Circle t~ there exist audit reports that independently testify to the conh.ary. engage in a genuine way with conversatIOnal regulahon (Blac In the large firm sector where OHS inspections are frequent, 1997 and 1998). The state displays a hierarchy of state enforcement private prosecutions can be a check and balance on capture of the actions that might range from improvement nohces to mandatmg regulator. As in the passive smoking case at the McComas TPC, an the preparation of a safety case, to prosecution and dereglstratlOn important motivation in taking the risks of large legal costs from and a good many things in between. There IS virtue m workers a private action is the desire to expose a captured regulator and having more rungs in their enforcement pyramids than go-slows, thereby create the conditions for the appOintment of more work-to-rules and stop-work meetings, with private prosecutIOns aggressive enforcers of the law. In the small firm, outwork and as a less draconian possibility before resorting to a fully fledged underground sectors, the value of private prosecutions is to strike. Employers have the most subtle range of enforcement tools, create some deterrence in conditions where neither regular OHS from reprimands to reassignment to less attractive tasks, Wlth~ inspections nor OHS management systems are likely to be holding bonuses or promotions, up to dlsnussal. Both NGOs (hk operative. In the conditions of our contemporary deregulated unions) and employers also have a range of ways they can regulate labour market, it might make sense to make multi-pronged union the state. Enforcing the Nader strategy discussed in the last sectIOn legal attacks on lawless firms in these sectors viable by also is an example of how NGOs can regulate the state, Just as big allowing for private prosecutions and treble damages for under business complaining to the Prime Mmlster about the need to trim payment of minimum wages, absence of workers compensation Alan Asher's wings is one of their regulatory sh·ategles. insurance and other breaches of all labour laws. 204 205 RESTORATIVE AND RESPONSIVE REGULATION OHS REGULATION FOR A CHANGING WORLD OF WORK igoVel:nraeIlt over a conflict that is spinning out into something The more clear it is that business NGO fuan it should is going to result in them being told to fix the have quite a range of escalator ti' s and government vrl,bl at the end of the process. So why not avoid all that grief two, the more sense it makes f;r°the ~: to tdeploy against the other 1em see if they can discover a path to a e:.o do,,:n together and and be a constructive problem-solver up front? ~It So conceived, the circle is a more efficient strategy than iterated ResponSive Regulation, Ayres and Braithwai: w(l~;;wm solullon·In prosecutions against workers, manufacturers, suppliers, designers, argue that the logic of tri rn . ' espeCIally ch3) franchisors, contractors, subcontractors, Inanagers, directors (Cun c:eates incentives for dialoJ~ p~;br:s~o~sl:e regulation is that it tlve regulation. The paradox of th m so vmg, as opposed to Puni ningham and Johnstone 1999, P 330) to own the bit of the escalate to really severe sancti . e pyramId IS that capability to responsibility for what went wrong that is rightly theirs. The tive justice at th~ base of the p;:~~necessary to motivate restora, circle is about avoiding holding actors to totalising conceptions of responsibility: 'It was your fault, not mine'. It is about trying to Restorallve Justice means a in an alleged injustice have anP~oc~s where all the stakeholders create a contagion of someone starting the ball rolling by saying, quences and what might b d pp rturuty to dISCUSS its conse, 'Well I fuink I should take responsibility for ensuring that next time this is done, because if I had done that on this occasion, the spillage sitting in the circle the wrong. It is about discuss~ng 0~~1~0 h~gh~ of the chemical may never have happened'. Over-determined, vlchm being able to describe' tl . seen hurt, and then the coping with the hurt and what~he 1e~r. own ~ords how they are multiple responsibility for acting in the future to prevent what has harm and prevent this from ha eJn Ie 10?kmg for to repair that gone wrong in the past is also the best hope for taking safety of active responsibility as PPd g agam. It IS about the virtue 'beyond compliance' (Gul1l1ingham and Sinclair 2002), for forging ' oppose to the passiv 'b' . together creative problem-solving strategies that might never have o mg someone responsibl f h e responsl Ihty of h Id been seen in a process that focuses on deciding who to single out (Braithwaite 2002). Active :e~r w .~\:hey have done in the past sibility for putting things right i~Ot~: f~:~ n;,eans taking respon, for blame.In criminal law, the evidence from randomised controlled trials m preparing for a restorative 'ustice u e. 0 a c?mmon strategy everyone before the conference ~ th' kc01erence IS to encourage that restorative justice prevents future crime better than courtroom willing to own a bit of res on m 0 any ways they might be prosecutions is becoming moderately strong, at least with violent SI'b~' r something to make things bette f Ityl fOf the past by offering to do offences (Braithwaite 2002; Strang and Sherman 2003). However, I Of .. r or t 1e uture. have argued that this is only so, at least in some contexts, because ten restorahve Justice conferences b one wants to own res 01 'bT reak down because no- the restorative justice circle occurs against a background of the facilitator of a busines!' r~~~I~:ty. WI~n that happens, the skilled perceived inexorability of escalation to seriously punitive justice if widen the circle again and a Dry c~ erence adjourns. They ilien an offender tries to just walk away from their responsibility. So my accept responsibility If an gam ~nhl they find someone who will argument in Restorative Justice and Responsive Regulation (Braitl1- . , executive who d' I waite 2002) is that restorative justice needs a regulatory pyramid, for an OH5 violation diO"s their heel' Irecty responsible tas. even if it is only fue implicit one of a parent or teacher saying that the company have any r~s on 'bT t s 111, c amung neIther they nor to include the executive' s ~OS:I ~~J; then we can WIden the circle bullying another child is not something that will be allowed to even tougher nut in refusin taps the boss proves to be an stand. 111e safety of the bullied child will be addressed and the part of the employer Th g tl0 accept any responsibility on the harm repaired, one way or another. The parent or teacher projects person's boss or their boss. e~~e ~ed CIrcle can be :widened to that an image of invincibility. They may not be sure what form esca CIrcle is widened is that statisticall vantage th~ facIlItator has as the lation will take, but whatever it takes, they are not going to walk a softer target who can be motivare~l~y are lIkely eventually.to hit away and leave this child unprotected from bullying and the injustice of the bullying unconfronted. The attitude we should want offer t? take some steps to fix the robi shame or moral suaSIOn to The dlsadvantaO"e the recal '. p em and prevent recurrence. workplace OHS inspectors to adopt to OHS abuses (whether they that the facilitator de 10 . cIll;nt offender has is that they know are from government, unions or business itself) should be no less reach a level of the ~rg~mg /IS st~ategy is likely eventually to msa IOn were good relations with the 207 206 OI-IS REGULATION FOR A CHANGING WORLD OF WORK than that inexorable will to confront and solve the problem learn from it. ' ancl Le~rning leads to the final virtue of the restorative justice cirCle. References The eVIdence IS that communicatIOn problems, which often means fmlure to learn from the same mistake being made many ti b f '· mes e are, und erI les many senous OHS violations (Braithwaite 1985) Aalders, M and Wilthagen, T (1997), 'Moving beyond command and Havmg all the stakeholders in the circle sharing their experienc . i control: reflexivity in the regulation of occupational safety, health the problem in their own voice is a better way of promo~ a and the environment', Law and Policy, vol 19, no 4, pp 415-444. learrung than having the problem reduced to legal concepts in ~g ACOSH (1988), Occupah'onal safety and healtl! reform: a public discussion words of lawyers who act as mouthpieces for the stakeholders in e paper, Advisory Council for Occupational Safety and Health, courtroom. a Wellington, New Zealand. Aminoif, S and LindslOm, K (1981), Effektivare former for skyddsarbetets organisation, Skogshogskolan, Garpenberg. Conclusion AML (1999), Bekendtgerelse af lov om arbejdsmiljo, Departmental order on law on the working environment, Lovbekendtg0felse nr, 784 af We have come a long way from an Allan Fels-style media 11. Oktober 1999. conference .about some egregIOus wrongdoing and why stiffer and Andrews, R (2003), 'Study concludes environmental management sys more creative sanctions are needed to deal with such matters' tems can boost performance, compliance', University of North future. My argument is that such a high pUblicity strategy is t1~ Carolina, Available: 208 209 OHS REGULA nON FOR A CHANGING WORLD OF WORK REFERENCES Baker, R (1998), 'Worker education and training' in Enct)clopedia of Black, J (1998), 'Talking about regulation', Public Law, Spring, pp 77- OCClipatlOnal Health and Safety, International Labour Organisation 105. Geneva, pp 18.8-18.10. ' Black, J (2001), 'Managing discretion', paper presented at the Baldwin, R and Anderson, J (2002), Rethinking regulatory risk Australian Law Reform Commission Conference on PenaltIes: DLA/LSE, London. ' Policies and Practice in Government Regulation, June 2001, Sydney. Baldwin, R and Cave, M (1999), Understanding regulation. Themy Bluff, E (2000), 'Producing risks: creating safety ,- how is product strategy and practice, Oxford University Press, Oxford. ' safety addressed in management systems? m Pearse, W, Baldwin, R, Scott, C and Hood, C (1998), A reader on regulation, Oxford Gallagher, C and Bluff, E (eds), Occupational health and safeh) University Press, Oxford. management systems. Proceedings of the first natIOnal conference, Barron, J (2000), Accurate assessment of OHSMS performance: impact Crown Content, Sydney, pp 101-121. . of auditor skills' in Pearse, W, Gallagher, C and Bluff, E (eds), Bluff, E (2003), Systematic management of occupatIOnal health alld safety, OccupatIOnal health and Safeh) management systems. Proceedings of the Working Paper 20, National Research Centre for Occupational first national conference, Crown Content, Sydney, pp 125-128. Health and Safety Regulation, Australian Nahonal Umversity. Bartrip, P (1985), 'Success or failure? The prosecution of the early Bluff, E and Johnstone, R (2003), 'Infringement notices: stimulus for Factory Acts', Economic Histon) Review, Second Series, Vol XXXVIII, prevention or trivialising offences?', Journal of OccupatIOnal Health pp 423-427. and Safety - Australia and New Zealand, vol 19, no 4, l'P 337-346. Bartrip, P and Fenn, P (1983), 'The evolution of regulatory style in the Boden, L, Hall, J, Levenstein, C and Punnett, L (1984), The llnpa:t of mneteenth century British factory inspectorate', British Journal of health and safety committees', JOllrnal of OccupatIOnal Medlcllle, Law and Socieh), Vol 10, pp 201-222. vol 26, no 11, pp 829-834. Beaumont, P, Coyle, J, Leopold, J and Schuller, T (1982), The Bohle, P and Quinlan, M (2000), Managing occupational health alld determl1lants of effectlVe JOInt health and safety committees, Centre for safety: a multi-disciplinary approach, Macmillan, Melbourne. Research into Industrial Democracy and Participation, University Bohle, p, Quinlan, M and Mayhew, C .(2001), 'The health ~nd safety of Glasgow, Glasgow. effects of job insecurity: an evaluatlOn of the eVIdence, eCOn01lllC Becker, G (1968), 'Crime and punishment: an economic approach' and labour relations review, vol 12, nO 1, pp 32-60. Journal of Political Economy, vol 76, pp 169-217. ' Boix, P and Vogel, L (1999), Risk assessment at the workplace - a guide Jar Bell, C (1996), Time Jar business, Report of the Small Business union action, TUTB, Brussels. . Deregulation Task Force, Department of Industry, Science and Braithwaite, J (1985), To punish or persuade: enforcement of coal 1IIme Technology, Australian Government Publishing Service, Canberra. safety, State University of New York Press, Albany.. . . ,. Bickerdyke, I and Lattimore, R (1997), Reducing the regulatory burden: does Braithwaite, J (1993), 'Responsive business regulatory mstltutIOns 111 firm size matler? Staff Research Paper, Industry Commission, Coady, C and Sampford, C (eds), Business Ethics and the Law, Fede- Melbourne. ration Press, Sydney. .' Biggins, D and Holland, T (1995), 'The training and effectiveness of Braithwaite, J (2002), Restorative justice and responsive regulatIOn, health and safety representatives' in Eddington, I (ed), Towards Oxford University Press, New York. . Health and Safeh) at Work: Technical Papers of the Asia Pacific Braithwaite, J and Geis, G (1982), 'On theory and actlon for corporate Conferellce all Occupational Health and Safety, Brisbane. crime control', Crime and Delinquency, vol 28, pp 282-302. . . Biggms, D and Phillips, M (1991a), 'A survey of health and safety Braithwaite, J and Makkai, T (1991), 'Testing an .expected utlhty representatIves In Queensland. Part 1: activities, issues, infor model of corporate deviance', Law and SoC/eh) Rev/Cw, vol 25, pp 7- mation sources', Journal of Occupational Health and Safety _ ~. . . Australia and New Zealand, vol 7, no 3, pp 195-202. Braithwaite, J, Vale, Sand Pisse, B (1984), The role of prosecutIOn III Biggms, D and Phillips, M (1991b), 'A survey of health and safety conSHmer protection, Australian Federation of Consumer Orgam representatIves In Queensland. Part 2: comparison of sations, Canberra. . . , representatives and shop stewards', Journal of Occupational Health Brooks, A (1988), 'Rethinking occupational health and safety legtslation , . and Safety - Australia and New Zealand, vol 7, no 4, pp 281-286. Journal of Industrial Relations Socieh} of AustralIa, vol 30, pp 347-362. Biggms, D, Phillips, M and O'Sullivan, P (1991), 'Benefits of worker BSI (1999), Guide to occupational health .and safety management systems, participation in health and safety', Labour and Industry, vol 4, no 1, BS 8800 British Standardisation InstitutIOn, London. pp 138-59. Bureau of Labor Statistics (1995), New data on contingent and a/temate Black, J (1997), Rules and regulators, Oxford University Press, Oxford. employment, Report 900, US Department of Labor, Washington DC. 210 211 OHS REGULATION FOR A CHANGING WORLD OF WORK REFERENCES Burgess, J and de Ruyter, A (2000), 'Declining job quality in Aush'alia: Cole, T (2003), Final report of the Royal Commission into the building and anot~er hld?en cost of unemployment', Econornic and Labour construction industry reform - occupational health and safety, Volume RelatlOns Review, vol 11, no 2, pp 246-269. 6, Commonwealth of Australia, Canberra. Buultjen~, J (1994),. 'Labour market deregulation: does small business Conunissioner of Taxation (2001), Annual Report, Australian Taxation care?, Intemahonal Journal of Employment Shldies vol2 no 1 Office, Canberra. pp 133-157. ' , , Cooke, Wand Gautschi, F (1980), 'OSHA plant safety programs and Campbell, I and Burgess, J (2001), 'Casual employment in Australia injury reduction', Industrial Relations, vol 20, no 1, pp 245-257. an~ temporary. employment in Europe: developing a cross Cullen, L (1990), The public inquiry into the Piper Alpha disaster, national companson, Work, Employment and Society vol 15 no 1 Deparhnent of Energy, London. pp 171-184. ' , , Dalrymple, H, Redinger, C, Dyjack, D, Levine, Sand Mansdorf, Z Carson, WG .(197.0)" 'White collar crime and the enforcement of (1998), Occupational health and safety management systems. Review and ~~~ory legIslation, BrItish Journal of Criminolo?;!), vol 10, pp 383- analysis of international, national and regional systems and proposals for a new intemational docHment, IOHA Report to International Labour Carson, WG (1979), 'The conventionalisation of early factory crime', Organisation, ILO, Geneva, InternatlOnal Journal of the Sociolo?;!) of Law, vol 7, pp 37-60. Dawson, S, Willman, P, Clinton, A and Bamford, M (1988), Safety at work: Cars~n: WG (1980), ,!he institutionalisation of ambiguity: early tile /imits of self-regulation, Cambridge University Press, Cambridge. Bnhsh Factory Acts m Geis, G and Stotland, E (eds), White col/ar Dedobbeleer, N, Champagne F and German, P (1990), 'Safety perfor cmlle: theory and research, Sage~ London. mance among union and non-union workers in the construction Carson, WG, Henenberg, C and Johnstone, R (1990), Victorian industry', Journal of Occupational Medicine, vol 32, no 11, pp 1099- occllpatlOllal health and safeh;: an assessment of law in transition, The 1103. . La Trobe/ Melbourne Occupational Health and Safety Project, De Grip, A, Hoevenberg, J and Williams, E (1997), 'Atypical employ Deparhnent of Legal StudIes, La Trobe University, Melbourne. ment in the European Union', International Laboltr Review, vol 136, Carson, WG and Jolmstone, R (1990), 'The dupes of hazard: no 1, pp 49-71. occupatlOnal health and safety and the Victorian sanctions debate', Diamond, Wand Freeman, R (2001), Wilat workers want for workplace fl~tral/On and New Zealand Journal of Sociology, vol 26, no 1, pp 126- organisations: a report to tlIe rue's promoting trade unionism task group, Trade Union Congress, London. Castells, M (1996), The rise of network society, Blackwell, Oxford. Di Mento, J (1986), Environmental law and Alllerican business: dilemmas CCH (2002a), Latest OHS Headlines, 7 June 2002. of compliance, Plenu1l1 Press, New York. CCH (2002b), OHS Alert, 22 August 2002. Dorman, P (2000), 'If safety pays, why don't employers invest in it?' Centre for Corporate Accountability/UNISON (2002), Safety last? TIIe in Frick, K, Jensen, PL, Quinlan, M and Wilthagen, T (eds), under-enforcement of health and Safeh) law, UNISON, Centre for Systematic occupational health and safeh) management. Perspectives all Corporate Accountability, London. an international development, Pergamon, Oxford. Coglianese, C and Lazar, D (2002), 'Management-based regulatory Dotson, K (1996), 'An international safety and health measurement strateiPes' in Donaghue, J and Nye, J (eds), Market-based governance, strategy: corporate programs, systems and results', 10llrnal of Brookmgs, Washington DC, pp 201-224. OCCllpational Health and Safety - Australia and New Zealand, 12, Cogl~anese,. C and Lazar, D (2003), 'Management-based regulation: pp 669-678. prescflbu:g I?flvate sector .management to achieve public goals', Eakin, J (1992), 'Leaving it up to the workers: sociological perspective on forthcommg m Law and SOC/eh) Review. U1e management of health and safety in small workplaces', CoglIanese, C and Nash, J (eds) (2000), Regulating from the inside, RFF, International Journal ofHealth Services, vol 22, no 4, pp 689-704. Washmgton DC. Eakin, J, Lamm, F and Lhnborg, H (2000), 'International perspectives on Coglianese, C, Nash, J and. Olmstead, T (2002), Performance-based the promotion of health and safety in small workplaces' in Frick, K, regtllat~on, prospects and 111mtatlons 11l health, safety and environmental Jensen, PL, Quinlan, M and Wiltilagen, T (eds), Systematic occupational protectlOn, Regulatory Policy Program Report No RPP-03 Harvard health and safety management. Perspectives on an illtemational University~ Cambridge, Massachusetts. ' development, Pergamon, Oxford, pp 227-247. Cohen, H and Cleveland, R (1983), 'Safety programs in record EEC (1989), 'Council directive 89/391/EEC of 12 June 1989 on the holding plants', ProfeSSional Safety, March, pp 26-32. introduction of measures to encourage improvements in the safety and health of workers at work', Official Journal, L 183, 29/06/1989, pp 1-8. 212 213 OHS REGULATION FOR A CHANGING WORLD OF WORK REFERENCES EFILWC (1997), The social implications of telework E. Fisse, B and Braithwaite, J (1993), Corporations, crime and responSibility, Foundation for the Improvement of Living and W~rk;'''tean ditions, Dublin. g on- Cambridge, Sydney. . . Foliente, G (2000), 'Developments in performance-based bUlldmg EFILWC (2001), 'For a better quality of work', conference SUlTIma codes and standards', Forest Products Journal, vol 50, no 7/8, pp 12- for European Umon PresIdency Conference, Brussels 20-21 Septefib:;; 21. 2001, European Foundation for the Improvement of Livin Workmg Conditions, Dublin. g and Fox, R (1995a), Criminal justice on the spot: infringement penalties in Victoria, Australian Institute of Criminology, Canberra. ENDS. (1999a), New environmental management models for SME, Fox, R (1995b), 'Infringement notices: time for reform', Trends and EnvIronmental Data Services Report 290, ENDS, London. ' Issues in Criminal Justice, no 50, pp 1-6. ENDS (1999b), DTI study identifies barriers to small firms uptake of EMs Franchise Council of Australia (2003), 'Facts at a glance', Available: EnvIronmental Data Services Report 299, ENDS, London. ' 214 215 OHS REGULATION FOR A CHANGING WORLD OF WORK REFERENCES Frick, K and Walters, D (1998), 'Worker representation on health and Gospel, H and Wood, S (2002), Representing workers: union recognition safety in small enterprises: lessons from a Swedish approach' and membership in Britain, Routledge, London. International Labour Review, vol 137, no 3, pp 367-390.' Grabosky, P and Braithwaite, J (1986), Of manners gentle: enforcement Frick, K and Wren, J (2000), 'Reviewing occupational health and strategies of Australian business regulatory agencies, Oxford safety management. Multiple roots, diverse perspectives and University Press, Melbourne. ambiguous outcomes' in Frick, K, Jensen, PL, Quinlan, M and Grabosky, P, Braithwaite, J and Wilson, P (1987), 'The myth of Wilthagen, T (eds), Systematic occupational Ilealth and safety community tolerance toward white-collar crime', Australian and management. Perspectives on an international development, Pergamon, New Zealand Journal of Cri11linolol{l), vol 20, pp 33-44. Oxford, pp 17-42. Gray, WB (1996), Construction and analysis of BLS-OSHA matched data: Gaines, J and Biggins, D (1992), 'A survey of health and safety repre final report, US Deparhnent of Labor, Washington DC. sentatives in the Northern Territory', Journal of Occupational Health Gray, WB, and Mendeloff, J (2002), The declining effects of OSHA and Safety - Austmlia and New Zealand, vol 8, no 5, pp 421-428. inspections on manufacturing injuries: 1979 to 1998, National Bureau Gall, G (ed) (2003), Union organising: campaigning for trade union recog of Economic Research, Massachusetts. nition, Routledge, London. Gray, WB and Scholz, JT (1990), 'OSHA enforcement and Workers' Gallagher, C (1997), Healtll and safeh) management systems: an analysis of Injuries: A Behavioural Approach to Risk Assessment' Journal of systems h)pes and effectiveness, National Key Centre for Industrial Risk Assessment, vol 3, pp 283-305. Relations, Monash University, Melbourne. Gray, WB and Scholz, JT (1991), 'Analysing the equity and efficiency Gallagher, C, Underhill, E and Rimmer, M (2001), Occupational Ilealth of OSHA enforcement', Law and Policy, vol 3, no 3, pp 185-214. and Safety management systems. A review of their effectiveness in Gray, WB and Scholz, J (1993), 'Does regulatory enforcement work? A securing Ilealtlly and safe workplaces, National Occupational Health panel analYSis of OSHA enforcement', Law Socieh) Review, vol 27, and Safety Commission, Sydney. pp 177-213. Gallagher, C, Underhill E and Rimmer, M (2003), 'Occupational Grunberg, L (1983), 'The effects of the social relations of production health and safety management systems in Australia: promise and on productivity and workers' safety', International Journal of Health reality', Policy and Practice in Healtll and Safety, vall, no 2, pp 67-81. Services, vol 13, no 4, pp 621-634. Gallie, D (2003), 'The quality of working life: is Scandinavia Gun, R (1992), 'Regulation or self-regulation: is Robens-style legislation different?', European Sociological Review, vol 19, no 1, pp 61-79. a formula for success?', Australian and New Zealand Journal of Gaupset, S (2000), 'The Norwegian internal control reform' in Frick, Occupational Health and Safety, vol 8, no 5, pp 383-388. K, Jensen, PL, Quinian, M and Wilthagen, T (eds), Systematic Gunningham, N (1984), Safeguarding the worker. Job hazards and tile role occupational health and safety management. Perspectives on all of the law, Law Book Company, Sydney. international development, Pergamon, Oxford, pp 329-348. Gunningham, N (1987), 'Negotiated non-compliance: a case study of Glendon, 1 (1995), 'Risk management in the 1990s: safety auditing, regulatory failure', Law and Policy, vol 9, no 1, pp 69-95. Journal of Occupational Health and Safety - Australia and New Zealand, Gunningham, N (1996), 'From compliance to best practice in OHS: the vol 11, no 6, pp 569-575. roles of specification, performance and systems-based standards', Glendon, I and Booth, R (1995), 'Risk management for the 1990s: mea Australian Journal of Labour Law, vol 9, no (3), pp 221-246. suring management performance in occupational health and Gunningham, N and Johnstone, R (1999), Regulating workplace safeh) - safety', Journal of Occupational Health and Safety - Australia and New systems and sanctions, Oxford University Press, New York. Zealand, vol 11, no 6, pp 559-565. Gunningham, N, Kagan, R and Thornton, D (2003), Silades of green: Glendon, I and McKelma, E (1995), Human safeh) and risk management, business, regulation and environment, Stanford University Press, Chapman and Hall, London. California. Goldenhar, L, La Montagne, A, Katz, T, Heaney, C and Landsbergis, P Gunningham, N, and Sinclair, D (2002), Leaders and laggards: next (2001), 'The intervention research process in occupational safely generation environmental regulation, Greenleaf Publishing, Sheffield. and health: an overview from the National Occupational Research Gunningham, N, Sinclair, D and Burritt, P (1998), On-the-spot fines and Agenda Intervention Effectiveness Research Team', Journal of the prevention of injury and disease - the experience of Australian Occupational and Environmental Medicine, vol 43, no 7, pp 616-622. workplaces, National Occupational Health and Safety Commission, Goodwin, M (2003), Tile great wage robbery: enforcement of minimum Sydney. labour standards in Australia, PhD Dissertation, Faculty of Eco Gustavsen, B (1980), 'Improving the work environment: a choice of nomies, University of New South Wales, Sydney. strategy, International Labour Review, Vol 119, pp 271-286. 216 217 OHS REGULATION FOR A CHANGING WORLD OF WORK REFERENCES Gustavsen, Band Hmmius G (1981) N Case of Norway, UniversitY Press 0;1 ew patterns of work refonn: Ihe Henriques, U (1979), Before Ilze welfare slale: social administration in early Haddon, W (1996), 'The basic strate ~s f . industrial Britain, Longmans, London. Ha~Z~d(S ~f) a(~9~i6n)ds"Hazard Preven~on, ~:p~~g~t~';: 8~~~age from Hillage, J, Kersley, B, Bates, P, and Rick, J (2000), Workplace con , e , R1Sks, costs and lzves s d' tt' sultation on /zealtlz and safety, CRR 268/2000, HSE Books, Sudbury. from regula lion, Oxford University P Wave '. ge lIlg belter resnlts Hipple, S (2001), 'Contingent work in the late-1990s', Monlhly Labour H . F (199 ress, aShington DC ames, 7), Corporate regulalion- b d" . Review, vol 124, no 3, pp 3-27. Clarendon Press, Oxford. . eyon pU11lsh or persuade', Hopkins, A (1995), Making safelt) work - gelling management Com Hale, A and Hovden J (1998) 'M mitment to occupational Izealtlz and safeh), Allen and UnwIn, Sydney. of safety A" ,anagement and culture: the third . reVIew of approaches t '. age Hopkins, A (2000), Lessons from Longford: Ilze Esso gas plant explosion, safety, health and environment' in F~ orgamsahona.l ,aspects of CCH Australia Ltd, Sydney. er (eds), Occupational in'w R' k 'y , A ~nd WIllIamson, A Hovden, J and Jensen, PL (1989), 'Intern kontrol i Norden - status, and Francis, London. '} y. 1S prevent1011 and mtel7Jention, Taylor perspektiver og forskningsbehov', Sintef, Trondheim, Norway. Hale, A, Herning, B, Carthey, J and Kirwan B ( , HSE (1997a), Successful lwaltlz and safety management, HSG 65, Health safety management systems' Sarfi It S·' 1997), Modelling of and Safety Executive, Sudbury. 130. ' e y Clence, vol 26, no 1-2, pp 128_ HSE (1997b), The cosls of accidents al work, Health and Safety Hall, P (1988), Employment injUlies in w k ,( . Executive, HSE Books, Sudbury. ground 1982-1985, Statistical Anaf' ;rs 0) non-Englzsh speaking back_ HSE (1999), Five sleps 10 risk assessment, Health and Safety Executive, Department of Industrial Relations al,'~'~ In{0rrnation Paper No 15, HSE Books, Sudbury. HamaJainen, R Husman K R.... mp oyment, Sydney. HSE (2002), Enforcemen! management model, Health and Safety Rantanen J' (2001) s' , asanen, K, Westerholm, P and Executive, London. occupatim;al health S:'7JiC~';':X ti~: i~:~o quality .and effecliveness of HSE (2003), 'Organisational change and major accident hazards', SWitzerland, Finnish Institute of 0 p~an Ulllon and Nonvay and Health and Safety Executive information sheet, Health and Safety Harms-Ringdahl, L (2001) S et ccupatIonaI H~alth, Helsinki. Executive, London. occupational sarfielty Taylo~ anafid YF' analYSILs - principles and practice in HIS ' rancls, ondon Hutter, B (1988), The reasonable arm of Ilze law? Tize law enforcemenl as am, ,James J, Bennett D (1998) D .. procedures of environmenlalhealtlz officers, Clarendon Press, Oxford. work wilh intermedimies HSE C tr "f{lop11lg proposals on how 10 Hutter, B (1989), 'Variations in regulatory enforcement styles', Law HSE Books, Sudbury. ' on act esearch Report 185/1998, and Policy, vollI, no 2, pp 153-174. Havlovic, S (1991) 'Safety corn . Hutter, B (1997), Compliance: regula lion and enforcemenl, Clarendon reducing the risk of death' the :Itte:s and safety. ~ducation in Press, Oxford. logging industry (1940 1989)" ~en~nce of the BntIsh Columbia Hutter, B (2001), Regulalion and risk: occupatiOlzallzea/t1z and safety on tlze 28th Conference of the C~nadian 'F,'dua~tl'l ~ red), Proceedin!? of the railways, Oxford University Press, Oxford. press, Kingston, pp 403-407. s IIn e atlOns AssOclallOn, IRC ILO (1996), Tize role of labour inspection in lransition econ011lies, Havlovlc, S and MCShane, S (1997) Til . . . International Labour Organisation, Geneva. safety committees and safelt) tmini;zg e eff~ctz?eness ofJOint health and ILO (2001), Guidelines on occupalional safety and Izealth manageme1!t 111 British Columbia forest d tn Ie l~cmg fatalztIes and injuries systems, International Labour Office, Geneva. lls Compensation Board of BritishP~~I"ct bmzB ,. . Burnaby: Workers Industry Commission (1995), Work, Izealtlz and safely. Inquiry inlo Hawkins K (1984) E . um la, ntIsh Columbia. , , nVlronment and e rfi . occupational healtlz and safety, Volume I Report and Volume II social definition o{pollzllion Cl d IpZ orcemenl: reglllatlOn and Ihe H k' (' ,aren on ress Oxford Appendices, Report No 47, AGPS, Canberra. aw InS, K 2002), Law as a last resort· l' ' . : . Isaac, J (1993), Small business and industrial relalions: some policy issues, regulatory agency Oxford U· .' p osecutlOn deClszon-making in a Centre for Industrial Relations and Labour Studies, Melbourne. Health and Safety 'c '.mverslty Press, Oxford. omnllSSlOn (2002) E rfi . ISO (2000), Siandard Jor qlla/ity 111anagemCllt syslems - requiremenls, ISO H Health and Safety Exe cu t'Ive, Lon d on' n orcemenl polzcy statement' 9001, ISO, Geneva. edegaard Riis, A and Jensen PL (2002)' James P and Walters, D (1997), 'Non-union rights of involvement: the assessment to workplace ' : Denmark: transforming risk case of health and safety at work', Induslrial Law Journal, vol 26, healtlz and safety I11mzagC1~:~~s~~,e~t '~ Walters, D (ed), Regulating pp 35-50. dynamic change, Peter Lan g, Brusse Is. Ie lIropean U1ll01l: a study o{') James, P and Walters, D (1999), Regulaling Izealtlz and safety: Ilze way fOlward, Institute of Employment Rights, London. 218 219 OHS REGULATION FOR A CHANGING WORLD OF WORK REFERENCES Jensen, PL (1997), 'Can participatory ergonomics become 'the way We Kitay, J and Sutcliffe, P (1989), 'Employers and employment relations in do thmgs In tlus fIr~ - the Scandinavian approach to small business in Australia' in Bray, M and Kelly, D (eds), parllcipatory ergononucs , Ergonomics, vol 40, no 10, pp 1078-1087 Australasian Industrial Relations, AIRAANZ, Sydney. Jensen, P (2001a), 'Risk assessment: a regulatory strategy for stim·_ Khan, R (1993), The effect of government on small businesses, Department of Iatmg work enVIronment activities?' Human Factors and Ergonomi~ Management Systems, Massey University, Palmerston North, New in Manufacturing, vol 11, no 2, pp 101-116. s Zealand. Jensen, PL (2001b), 'Working environment and technological develo _ Kochan, T, Dyer, L and Lipsky, 0 (1977), n,e effectiveness of union ment: the Danish experience, Human Factors and Ergonomics f management safeh) and health committees, WE Upjolm Institute for Manufacturing, vol 11, no 2, pp 81-88. n Employment Research, Kalamazoo. Jensen, P (2002),. 'A~sessing. assessment: the Danish experience of Kuperman, K and Sutinen, J (1998), 'Blue water crime: deterrence, worker particIpation m nsk assessment', Economic and Industrial legitimacy and compliance in fisheries', Law and Society Review, Democracy, vol 23, no 2, pp 201-227. vol 32, pp 309-337. Johnson, J and Johansson~ G (eds) (1991), The psychosocial work environ_ Lamm, F (1992), 'Persuasion or coercion enforcement strategies in ment: work orga1llzatIOn, democratisation and health Baywood occupational safety and health' in Deeks, J and Perry, N (eds), Amityville. ' , Controlling interests: business, tlze state and society in New Zealand. Johnstone, R (1999a), 'Paradigm crossed? The statutory Occupational Auckland University Press, Auckland, pp 156-176. health and safety obligations of the business undertakin' Lamm, F (1997), 'Small businesses and OH&S advisors', JOllrnal of Australian Journal of Labour Law, vol 12, no 2, pp 73-112. g, Safeh) Science, vol 25, nos. 1-3, pp 153-161. Joh~ston~, R (1999b), Evaluation of Queensland construction sofeh) 2000 Lamm, F (1999), Occupational Izealtlz and safeh) in Australian small mltwtlVe, National Occupational Health and Safety Commission businesses: what can be done to reduce the lack of awareness and raise the Sydney. ' level of compliance in Australian small businesses, UNSW Studies in Johnstone, R (2000), 'Occupatio,:al health and safety prosecutions in Australian Industrial Relations, University of New South Wales, Victona: an histoncal study, Australian Journal of Labour Law Sydney. vol 13, pp 113-142. ' Lamm, F (2002), 'Occupational healU1 and safety in small businesses' in Johnstone, R (2003), Occlipationalhealth and safety, courts and crime. n,e Lloyd, M (ed), Occupational Izealtlz and safeh) in New Zealand: legal constmcllon of occupatIOnal health and safety offences in Victoria contempormy social research, Dunmore Press, Wellington. Federation Press, Sydney. ' Larsson, T (1996), Systems control development in Sweden, A paper pre Johnstone, R (2004), O~cupational health and safety law and policy. text sented at the Workshop on Integrated Control/Systems Conll·ol, and matenals, 2nd edillon, Law Book Company, Sydney. Dublin. Johnstone, R, Mayhew, C and Quinlan, M (2001), 'Outsourcing risk? Larsson, T (2000), 'The diffusion of employer responsibility' in Frick, The regulation of OHS where contractors are employed', COlll K, Jensen, PL, Quinlan, M and Wilthagen, T (eds), Systematic paratlVe Labour r:zw OIld,Polzcy JOllmal, vol 22, nos 2-3, pp 351-93. occupational health aHd safety management. Perspectives 011 an Kagan, R (1989), EdItor s mtroduction: understanding regulatory intemational deve/opment, Pergamon, Oxford, pp 119-226. enforcement', Law and Policy, vol 11, no 2, PP 89-119. Larsson, T and Clayton, A (1994), Insurance and prevention - some Kagan, R and Scholz, J (1984), 'The criminology of the corporation thoughts all social engineering i relation to externally callsed injury and and regulatory enforc~ment styles' in Hawkins, K and Thomas, J disease, IPSO-Factum 46, ArbetsmiljOfonden & Folksam, Stock (eds), Enforcmg regulatIOn, Kluwer-Nijhoff, Boston. holm. Kamp, A and Le Blansch, K (2000), 'Integrating management of OHS Legislative Council Standing Committee on Law and Justice (1998), an.d the enVIronment - participation, prevention and control' in Final report of inquiry into workplace safety, Parliament of New South Fnck, K, Jensen, PL, Quinlan, M and Wilthagen, T (eds), Systematic Wales, Sydney. ~ccllpatl?nal health and safety management - perspectives all an Lehman, S (2001), 'Partnership with intermediaries in OSH - a chance mtematlOnal development, Pergamon, Oxford, pp 413-436. to reach SMEs', Proceedings of tlze 2nd European ENWHP Conference, Ka,;al?eorgiou, A, Je,:,sen, PL, Walters, DR and Wilthagen, T (2000), Lisbon. R~sk assessment m fou~ member states of the European Union' in Le Nevez, C and Strange, L (1989), 'Delivering workplace solutions in Fnck, K, Jensen, PL, QUInlan, M and Wilthagen, T (eds), Systematic OHS: the workers' qealth centre model', Joumal of Occupational occupatIOnal health and Safeh) management, Pergamon, Oxford, Healtlz and Safety - Australia and New Zealand, vol 5, no 1, pp 45-52. pp 251-284. 220 221 OHS REGULATION FOR A CHANGING WORLD OF WORK REFERENCES Lentz, T, Okum, A, Schulte, P, and Stayner, L (1999) Ide! t". . small busmess mdustries· the basis for prev 1"' 1 ifi;mg IZlghcrisk May, P and Wood, R (2003), 'At the regulatory frontlines: inspectors' illness, and fatality, National Institute for ~:~:f :~~~:tonal injury, enforcement styles and regulatory compliance', /oul"llal of Public Health, US Department of Health and Human le· WSafety ill1d Administration Research and Theory, vol 13, no 2, pp 117-139. DC. rYlces, aSlUngton Mayhew, C (1997), Barriers to implementation of known occupational health Levi, M (1988), Of rule and revenue, University of Carf . and safell; solutions in small businesses, Division of Workplace Health Berkeley. 1 orma Press, and Safety and National Occupational Health and Safety Com Lewchuk, W, Robb, A and Walters V (1996) 'Th ff Ii· mission, Sydney. 70 d·· h " ee ec veness fB· an JOInt ealth and safety committees in reducin . . ~ ill Mayhew, C (1999), 'Identifying patterns of injury in small businesses: the workplace. The Case of Ontario' Canadian Public pgl mJunes at piecing together the data jigsaw' in Mayhew, C and Peterson, C (eds), no 3, pp 225-243. ' a ICY, vol 23, Occupational health and safeh; in Allstralia, Allen and Unwin, Sydney. Leyrmllm, H, Hogstromrn, RM, and Sundstrom-Frisk C Mayhew, C (2000), 'OHS in Australian 'micro' small businesses: ~eg~onal safety representatives: work situations and p982), evidence from nine research studies', Journal of Occupational Health . n erssokningsrapport, Arbetarsskyddnamnden, StockhO!:1 ilIOns, and Safety - Allstralia and New Zealand, vol 16, no 4, pp 297-305. LIdwaIl, U and Skogman Thoursie P (2001) 'So kn b . Mayhew, C and Quinlan, M (1997), 'The management of occupational the last decades' in Marklu d S( ,IC ess a sence during health and safety where subcontractors are employed', /oul"llal of 2000, National Institute for ~;rkin~dLfr:;o~~lif~~nf health in Sweden Occupational Health and Safety - Allstralia and New Zealand, vol 13, Linod"le, P (1996), Internal control in the small ;,us~~ss ~e~;!~~l~OO. no 2, pp 161-169. so. ' ortom, Mayhew, C and Quinlan, M (1998), Outsourcing alld occupational health Lind0e, P and Hansen K (2000) 'Inte ti . and safety. A comparative stlldy of factory-based and olltworkers il1 the man~g;~ent syste~s: a disc~ssion ~~s:~ ~~e~~on~roI into Australian TCF Indllstn;: Industrial Relations Research Centre, studIes ~n Frick, K, Jensen, P, Quinlan, M and Wiltha egIan case University of New South Wales, Sydney. gen SystematIc .occupational health and safety management Pe , T. (eds), Mayhew, C and Stacey, N (1997), Occllpational health arrangements in an InternatIOnal development Pergamon A t d . rspec lves on Allstralia. Occllpational and Environmental Medicine Report, National L· . " ms er am, pp 437-455 It;;~n, A (2000), Trade unions and industrial injury in Great B .·i . Institute of Occupational Health and Safety, Sydney. ISCUSSIOn Paper 468, Centre for Economic Performa It am, Mayhew, C, Young, C, Ferris, R and Harnett, C (1997), An evaluation of LO School of Economics and Political Science, London. nee, London tlze impact of targeted interventions on the OH&S behaviours of slllall building industnJ owners/managers/contractors, Division of Workplace Lg;~~)'d~lll. £llldgeLrardarbetsll1l1j6a:betet. En enkiitunders6kning bland L y som u, an sorgamsahonen Stockholm Health and Safety and National Occupational Health and Safety Commission, Sydney. oWUe,. G (2tOOp1), The quality of work: a p;ople-centred· agenda Oxford ruverSl y ress, Don Mills ON. ' Mendeloff, J and Gray, W (2003), 'Inside OSHA's black box: what is Lundberg, U and Melin B (2002) 'Str . the link between inspections, citations, and reductions in different muscu. loskeletal pain,' in Litto~ E e(ssd)m ,t,he development of injury types?', paper presented at the Law and Society Association t" >f ,. ,e , ;,eta aVeIlues for the Meeting, June 2003, Pittsburgh. ' Preven IOn 0 c IrOmc musculoskeletal pain and disability EI . Oxford, pp 165-179. ' seVIer, Mendeloff, J and Gray, W (2004), 'The effects of establishment and inspection characteristics on the impacts of OSHA inspections in McCaffery, D, (1983), 'An assessment of OSHA's recent effects M mJury rates, HUl1lan Resources, vol 18, pp 131-146 on manufacturing, 1992-1998', Law and Society, forthcoming. CQUlston, T, Kakaocs, T and Loomis D (1998) 'TI f Merlli;;, D and Paoli, P (2001), Ten years of working conditions in the stron "€r OSHA enforcement _ from . le . case European Union, European Foundation for the Improvement of 9 evidenc~ eval~ atlOn ~r AmerIcan /oul"llal of Public Health, vol 88 pp 1022_1024 lesearch , Living and Working Conditions, Dublin. Markey R H d ._,-, ' . Mitchell, D (2000), 'The challenges for mining health and safety 'G d' 0 gll,:"n~on, A, Kowalczyk, J and Pomfret, S (2001) regulators in the 21st century' in Minesafe International w~:1 ~~ ,casuahsation and enlployee participation in th~ er Conference Proceedings, A new centunj, a new vision, a new direction May P (~OO~e), ppaPf presentebd to lIRA 6th European Congress, Oslo. for occupational health and safety in the international mining industry, , ,er ormance- ased regulation and I d· the saga of leaky b ·Id· 'M . regu atory eSlgn: Minesafe International, Perth. U! mgs, eetmg of the L d So . Association, June 5-8, Pittsburgh, USA. aw an clety MORI (2001), Attitudes of Britain's captains of indllstry, British Safety Council, London. Mottel, W, Long, J and Morrison, D (1995), Indllstrial safety is good business - the DuPont story, Van Nostrand Rinehold, New York. 222 223