Report 22: 2019-20

Regulation of Asbestos Removal

Appendix 2: Full response of the Department of Mines, Industry Regulation and Safety and the WorkSafe Western Australia Commissioner to the recommendations of the audit

Recommendations

To strengthen its regulation of asbestos removal, the WorkSafe Commissioner, through the Department of Mines, Industry Regulation and Safety (DMIRS) should:

  1. Develop processes which allow for on-site inspections of worksites where asbestos is removed by restricted licence holders.

WorkSafe response: Agree

Implementation timeframe: by July 2021

WorkSafe transferred the compliance functions for asbestos to the Occupational Health, Hygiene and Noise team (OHHN) in February 2019, allocated a specific inspector with relevant skills to asbestos related investigations and transferred responsibility for the management of its audit function to the inspectorate (July 2019). More recently, in August 2019, the Government announced an additional 21 inspectors would be engaged by WorkSafe. DMIRS has allocated two of these additional inspector positions as Specified Calling inspectors to undertake on-site inspections of worksites where asbestos is removed by restricted licenced holders.

Asbestos is a WorkSafe priority and the only hazardous substance to be allocated this amount of WorkSafe resources.

Complaints, RTAs or notifications received by WorkSafe are triaged and appropriately allocated to inspectors with the necessary skills, experience and training to undertake workplace inspections.

Auditors, at the time of the audit, were engaged to undertake a paper based desktop audit are badged as inspectors so that they are able to exercise powers granted to inspectors within the OSH Act. WorkSafe inspectors, who are undertaking on-site inspections of worksites where asbestos is removed by licence holders, are appointed as inspectors. There are consistent elements in their training, particularly in relation to inspector powers. However:

    • Auditors undertake desktop audits of documents. These audits were administrative and clerical in nature.
    • WorkSafe inspectors undertaking on-site inspections of worksites where asbestos is removed require different skills and experiences. An asbestos removal licence is a threshold qualification which authorises asbestos removal work to be undertaken. In addition to the specific asbestos requirements identified in the OSH regulations, asbestos removal work must be undertaken consistent with the requirements prescribed in the OSH Act and other applicable OSH regulations. Typically, a science qualification is a threshold requirement for this inspector role. When conducting their inspections, these inspectors consider all aspects of the OSH Act and OSH regulations.

Subsequent to the time of the OAG audit there have been some operational changes which have led to the auditors moving more toward a traditional inspector role. At the time of the OAG audit the auditors were not provided with the training to perform inspections, however, with the change of operational approach this training has now commenced and will result in increased inspections and improved auditing processes.

  1. Update its documented guidance for:
    1. assessing licence applications and provide staff with structured training to use it
    2. auditing licence holders to ensure audits are comprehensive.

WorkSafe response: Agree

Implementation timeframe: by July 2020 (recommendation 2a) and December 2020 (recommendation 2b)

a. The Licensing Services Directorate of DMIRS will work towards improving documented guidance and structured training by July 2020.

b. All audits are conducted using checklists for each asbestos removal licence type and assess adherence to licence conditions and regulatory requirements. The Commissioner and DMIRS will review the audit process to enhance the comprehensiveness of auditing processes.

3. Improve its recordkeeping practices to:

    1. ensure licensing decisions are well documented for transparency and consistency
    2. include specific procedures in a DMIRS recordkeeping plan for asbestos removal licensing records
    3. clearly document the results of on-site inspections of unrestricted licensees, including the initial off-site assessment by DMIRS that determines whether an inspection is required.

WorkSafe response: Agree

Implementation timeframe: by July 2020 (3a) and December 2020 (3c). Recommendation 3b has been completed.

a/b. The Department has an approved Record Keeping Plan which meets State Records Act 2000 requirements. The Plan is a high level document that does not require detail for specific desktop and or operational processes and procedures. All key operational procedures and policies are stored within the departmental Quality Management System (QMS) application which is accessible to all departmental staff. A process for the management of Asbestos Removal Licensing files will be developed and stored within the departmental QMS.

c. WorkSafe is now documenting the reasons for the decision about whether an inspection will occur as a result of receiving a prescribed notification. This includes comprehensive instructions and supporting documentation in relation to inspector activities. These resources also include a Quality Inspection Policy which supports the legislative framework established by the OSH Act. The Quality Inspection Policy provides best practice guidelines for inspectors and includes requirements for all relevant details from an inspection to be entered into the WorkSafe Information Systems Environment (WISE) within 24 hours or the next business day. The Quality Inspection Policy provides a list of the details as guidance. There are also instructions for inspectors to record and store their notes. WISE is used to keep operational records. When these records are done according to the Quality Inspection Policy, it is not necessary to also write reports. Photographs are taken when operationally useful and are not required for every investigation or circumstance. WorkSafe will undertake a review of WISE entries at periodic intervals to ensure compliance with the policy.

  1. Ensure its program to audit asbestos removal licence holders, and decisions regarding inspections, are targeted to the greatest risk of non-compliance, or harm to workers or the public, to maximise the effectiveness of regulatory resources.

WorkSafe response: Agree

Implementation timeframe: by December 2020

WorkSafe will undertake a review to ensure existing audit processes and decisions in relation to inspections are effective so as to manage licence and regulation non-compliance and thereby minimise risks to workers or the public.

To maximise the effectiveness of operations with the available resources, different inspectors are allocated for audits and asbestos removal workplaces. Inspectors conducting desktop audits are not required to have the same investigation and work experiences and qualification required for inspectors conducting workplace visits.

The auditors currently undertake annual desktop audits of around 350 asbestos removal licence holders. The audits are conducted based on the documentation requirements of the OSH regulations and conditions imposed on the asbestos removal licence holders. The audits prioritise non-compliant asbestos removalists.

Since February 2019, WorkSafe has allocated an inspector with environmental health experience and qualifications to undertake on-site inspections of worksites where asbestos is removed by licenced asbestos removalists. This single inspector’s time has been allocated to primarily address complaints, RTAs and notifications received by WorkSafe and is supported by other OHHN team members and inspectors when required. With the available resources, there has been limited opportunity for this inspector and DMIRS to undertake strategic proactive asbestos removal related campaigns. However, with the two additional inspectors approved by the Government, more resources will be allocated to strategic proactive interventions. WorkSafe is factoring these additional resources into its business planning process. Decisions about the allocation of inspector resources are risk based.

The auditors now receive formal advice about asbestos removal licence holder non-compliance issues from the WorkSafe OHHN Manager. The appointment of a dedicated WorkSafe asbestos inspector, has increased the number of these reports received by audit. As part of its business planning process, the referral process will be integrated and formalised.

  1. Perform an internal audit or review of its complaints management processes.

WorkSafe response: Agree, in relation to asbestos licensing

Implementation timeframe: by July 2021

In 2018/19, WorkSafe conducted 2,828 reactive investigations spread across the 496 ANZSIC groups that approximate to being within the jurisdiction of the OSH Act groups. The ANZSIC industry class that would deal with asbestos removal is 2922 – Waste Remediation and Materials Recovery Services.

As part of WorkSafe’s role to regulate workplace health and safety, it provides frontline customer service channels including digital service delivery so employers, employees and members of the public can seek further information or register their complaints relating to workplace hazards or incidents.

In addition to the prescribed notifications, WorkSafe accepts inbound complaints and RTAs including those regarding the safe removal practices of Asbestos Containing Materials (ACM). Members of the public, employers and employees are able to report instances where it is not clear whether the removal of ACM is occurring within the requirements of the OSH legislation.

WorkSafe has established complaints, RTA and prescribed notifications procedures which outlines the process that customer service staff use to record an inbound customer generated report of unsafe removal of ACM.

There are limitations on WorkSafe’s ability to obtain data from WISE, which supports the process of receiving and allocating occupational safety and health complaints, and has been in operation since 1995. WISE does not have the technological capacity to provide WorkSafe with reports relating to the removal of ACM. WorkSafe, and more broadly DMIRS, is looking at purchasing a contemporary investigations system which will facilitate superior access to data and overcome existing system imposed limitations. In addition, the system will be required to provide the ability to more effectively manage inspector activities. The Minister for Industrial Relations has approved a review by DMIRS to determine the needs of WorkSafe in order to upgrade the computer system used by WorkSafe.

WorkSafe will refer this matter to internal audit to consider whether it should be included in the internal audit program.

  1. Ensure conflicts of interest are managed appropriately by:
    1. allowing managerial staff access to the conflicts of interest register
    2. transferring conflicts of interest declared by employees of the former Department of Commerce into the current DMIRS register.

WorkSafe response: Agree, in relation to asbestos licensing

Implementation timeframe: by December 2020 (recommendation 6b). Recommendation 6a has been completed.

a. DMIRS Human Resources has developed a dashboard to monitor conflict of interest declarations [that] has been launched. Managers are being provided with training on the use of the conflict of interest dashboard.

Through the dashboard, every line manager will be able to access declared conflict of interests and the approved management plan for those employees that report directly to them. The delegated approver (Group Head/ Division Head (Executive Director)) also has access to employee’s conflict of interest declarations within their structural group through their own dashboard. The General Manager Human Resources and Director General will have access to all employee conflict of interest declarations.

At this stage, other managers between the line manager and delegated approver, for example General Manager, will not have access to the details of the employee conflict of interest declarations through their dashboard. This will require some further discussion regarding the risk and impact on the employee’s confidentiality. Upon request to the General Manager Human Resources, these managers may access the conflict of interest declarations for the employee/s within their reporting line.

b. In 2017, when the DMIRS Conflict of Interest Policy, Guideline and Procedure was launched, whole of department communication instructed employees to transfer their paper-based conflict of interest declaration onto the DMIRS eForm.

The existence of current paper-based conflict of interest declarations is not known to Human Resources, so their transition to the eForm process cannot be monitored (by Human Resources). The responsibility for the transition should be managed by Licensing Services managers.

Human Resources will further communicate with all staff in DMIRS, to remind of the importance to transfer existing paper-based conflict of interest declarations to the DMIRS eForm.

  1. Improve the collection and management of data to:
    1. analyse its complaints data to inform its monitoring and compliance activities
    2. use information from the public and other government entities, including waste disposal facilities, to inform its proactive programs and identify potential non-compliance issues
    3. better report to the WorkSafe Commissioner and/or the Director General of DMIRS on the results of on-site inspections, audits, and potential issues and trends identified from complaints and investigation information so they can take action.

WorkSafe response: Agree

Implementation timeframe: by December 2020

a. WorkSafe’s regulatory enforcement activities, customer interactions and divisional operational activity statistics are recorded in WISE.

WorkSafe’s call centre officers enter the details provided about complaints and RTAs into WISE. While complaints and RTAs can identify employers such as asbestos removal licence holders, this is not always the case. A record in WISE is also kept of the Call Centre referral to the Manager and then the inspector. This covers all complaints and is not limited to complaints regarding asbestos. Prescribed asbestos notifications are received by WorkSafe and also data entered into WISE.

 Inspector activities, including inspections and details about improvement notices issued, are also entered against the individual employer or asbestos licence removal holders in WISE. Before attending a workplace or conducting an inspection, it is standard practice for WorkSafe inspectors to review information available on WISE.

WorkSafe has limited resources for the purposes of data analysis. The WISE system, which commenced operation in 1995, also has limitations. WorkSafe and more broadly, DMIRS is looking at purchasing a contemporary investigations system which will facilitate superior access to data and overcome existing system imposed limitations.

WorkSafe’s ability to respond to asbestos complaints has improved greatly since the employment of two dedicated WorkSafe inspectors with industry specific knowledge in hazards related to asbestos. The inspectors are is supported by the OHHN team.

When a complaint or prescribed notification is received by WorkSafe in relation to asbestos, all information received is entered into WISE as an RTA and referred to the OHHN Manager who then creates and allocates the RTA for investigation by a WorkSafe inspector. The inspector is also provided with all the information received.

b. WorkSafe makes significant use of complaints and information received from members of the public to inform its inspections of asbestos removal work. This is the main source of enforcement activity in this area.

The OAG report is not specific as to the type of information obtainable from waste disposal facilities that may influence a proactive or compliance program. WorkSafe is aware of available information from other agencies. As a generalisation, this information has not been useful for achieving compliance with the OSH regulations. There is no legislated requirement for waste facilities to record asbestos disposals against asbestos removal licence holders. Such a requirement is likely to require prescription through regulations, impose costs and require significant consultation.

From the information available the benefits of using this information are not immediately apparent however, WorkSafe will make further inquiries in relation to this recommendation.

c. WorkSafe is supportive of reporting further details to executive where appropriate.

Asbestos related matters, while significant, constitute one of many occupational safety and health hazards over which WorkSafe has compliance responsibilities. WorkSafe management and reporting structures routinely ensure that matters requiring attention of senior management are reported, either to the WorkSafe Western Australia Commissioner, Executive Management Committee, Deputy Director General, Safety Regulation, or Director General as appropriate.

Asbestos inspectors via Principal Scientific Officer (PSO) report directly to the Director Service Industries and Specialists. The priority placed on asbestos results in significant management time is allocated to asbestos management. If matters require attention by senior management, the Director is ideally placed to raise those matters appropriately.

While there are limitations with WorkSafe’s current WISE software providing for limited analysis of complaint and investigation related trends. WorkSafe will ensure consultation with senior managers and the WorkSafe Western Australia Commissioner is undertaken to determine the needs of a regular report on asbestos removal work.

 

Page last updated: May 21, 2020
 

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