NSW Ombudsman tables investigation into SafeWork NSW

21 Aug 2020

The NSW Ombudsman has released the special report to parliament Investigation into actions taken by SafeWork NSW Inspectors in relation to Blue Mountains City Council workplaces following its tabling in Parliament on Friday 21 August. The report sets out the findings and recommendations of the Ombudsman’s investigation into SafeWork NSW (SafeWork).

The investigation was started following a complaint by Blue Mountains City Council (BMCC) in 2018. BMCC alleged wrong administrative conduct by SafeWork when it took various compliance actions under the Work Health and Safety Act 2011 (WHS Act) in relation to BMCC’s asbestos management practices.

Download the report.

In his tabling letter, NSW Ombudsman Michael Barnes writes:

The report concerns an investigation into certain actions taken by SafeWork NSW (SafeWork). It follows complaints received from Blue Mountains City Council about enforcement action taken in relation to a number of its workplaces in 2017 and 2018.

SafeWork is the State’s work health and safety regulator: it plays a central role in ensuring safe workplaces, reducing work-related fatalities, serious injuries and illnesses.

Workers, employers and the community rely on SafeWork to make enforcement decisions and actions that are based on professional expertise, evidence and relevant standards. These decisions and actions must reflect the seriousness of the risk and the potential for harm in the workplace.

In my investigation, however, I identified a number of occasions where SafeWork’s compliance notices were issued contrary to law.

In particular, on a number of occasions SafeWork Inspectors issued notices without holding the reasonable belief that is required under the legislation. Instead, they issued the notices because they were directed to do so.

The investigation also found some cases where the Council was required by SafeWork to take action that was not justified by legislative guidelines and relevant industry standards. SafeWork also failed to provide clear and documented evidence as to why other standards were being applied.

The investigation's findings are detailed in the attached report along with a number of recommendations to SafeWork.

The impact of SafeWork’s conduct in the cases identified imposed significant financial costs on Blue Mountains City Council, and therefore indirectly on its ratepayers. I have recommended that SafeWork apologise to the Council and provide compensation for the undue expenses caused by its actions.

I have also recommended that SafeWork improve its policies, procedures and training.

The report recognises the difficult contextual environment in which SafeWork was operating. There was considerable media and political interest in Blue Mountains City Council at the time, particularly in relation to its management of asbestos health and safety risks.

Nothing in my report should be taken to suggest that the potential danger of asbestos is anything but extremely significant. The NSW Ombudsman has previously reported on the need for even more rigorous management of asbestos in the community. We have previously made recommendations to Government on that issue in two special reports to Parliament in 2010 and 2017.

However, where risks such as asbestos raise legitimate and significant community concerns, it is even more critical that a regulator acts in a rigorous, consistent and proportionate manner. It must act in accordance with its legislative powers, with decisions made on the basis of relevant standards and the best available evidence.

The issues at the heart of this investigation centre on good administrative practice. Employers, workers and the community need to be able to place their trust in a regulator to act lawfully and reasonably, and to provide certainty and consistency in enforcement.

Only by addressing issues such as these can we ensure that everyone in NSW receives the right services and fair treatment from those we oversight.

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