WORKPLACE HEALTH & SAFETY INSPECTORS: ETHICS & SELF-REGULATION

ThesisMaster of Art(Applied Ethics)

BY

Mogens Routhe JohansenC. ENG.; GRAD. DIP. OCC. H&S.; MBA.

FACULTY OF HUMANITIES GRIFFITH UNIVERSITY

7 JUNE 1996

A thesis submitted to the Postgraduate Board of Griffith University in partial fulfilment of the requirements of the Master of Arts research degree in Applied Ethics of the Faculty of Humanities, Griffith University, Nathan.

M R Johansen

Page ii

STATEMENT OF AUTHORSHIP

This work has not previously been submitted for a degreeor diploma in any university. To the best of my knowledgeand belief, the thesis contains no material previouslypublished or written by another person except where duereference is made in the dissertation itself.

____________________M. R. Johansen

7 June 1996

Acknowledgments

During the time it has taken to gather together material

and write this thesis, my thoughts have changed

tremendously. As I have progressed through the

development of ideas and writing my supervisor Jeffrey

Minson of Griffith University has shown an enormous

flexibility with ideas, and if Jeffrey had not shown

latitudes and abundance of patience and guidance, it would

not have been possible to reach this the final point. I

am immensely grateful to Jeffrey for his help and support.

Thank you to Madonna and Miriam, my family, who provided

the right support at the right time. I am particularly

grateful to Stephen Byrne for the helpful discussions and

corrections to my Norse/English manuscript.

I wish to thank colleagues and friends in the Division of

Workplace Health and Safety throughout Queensland for

their time and thoughts. I have attempted to represent

your views as accurately as possible.

One final and special thanks is extended to the

professional staff at Griffith University for creating a

study environment that is friendly and promotional to

achieving one’s goal.

Abstract

As our Society is moving from prescriptive to self-

regulatory social legislation, it is found that public

servants, especially enforcement officers, are moving from

more formally defined powers to more discretionary powers.

The thesis traces this shift in the case of Workplace

Health and Safety inspectors with the main aim to put

forward an argument for a special code of conduct for

Workplace Health and Safety inspectors in Queensland

within the scope of the Public Sector Ethics Act 1994.

The paper in particular shows how the shift in legislation

makes the ethical performance of the inspectors’ job much

harder. The thesis also has relevance to other regulatory

officers: if the job of inspection has become irremediably

more difficult then there is all the more need for better

educated inspectors. There is also a need for a higher

level of professionalisation and that is why a ‘special’

professional ethic for inspectors is needed.

The scope of the arguments is defined by means of an

initial discussion of viewpoints of the ethics debate,

mainly from Australian commentators mixed with a practical

and philosophical view of inspectors and their work

environment. The framework of ethics for Workplace Health

and Safety inspectors is on the characteristics of a sense

of public service; a high level of public trust;

commitment to the client and emphasis on client service;

and acceptance of responsibility for judgements made

during duty. However, the chief problem identified in the

thesis is the urgent need for guidance in translating the

real public sector ethics framework into forms which are

relevant to the specific needs and circumstances of the

Workplace Health and Safety Profession.

This thesis argues that contemporary inspectors not only

need a knowledge of legislation and technical information,

but also a means to develop a reasonable level of ethical

maturity. Together with this the Workplace Health and

Safety inspectors have an ethical task of a fair and just

application of legislation to all citizens at workplaces;

to foster a sense of duty and cooperation amongst

employers and employees, while still being the intrepid

enforcer.

Several routes are established by this thesis for ethics

training, moreover, the thesis suggests a regular and

informed dialogue within the public service in a climate

of confidentiality and frankness. The thesis also offers

proposals to achieve an inspectorial operational

environment of greater ethical maturity through the use of

a variety of education and teaching tools.

A cross-departmental regime is proposed for Workplace

Health and Safety inspectors which sets them apart from

many other public servants; a regime, however, that

encompasses all regulatory officers with discretionary

powers, not including police. A model is developed

through the use of an ideal ethics regime encompassing the

Public Sector Ethics Act 1994, a professional code of

conduct for Workplace Health and Safety inspectors,

creation of ethical circles with interdepartmental input

from other regulatory officers. Recurrent ethics

education (including training) is proposed to be supported

by ethics committees. This model, is similar to modern

business management and compares with the professional

ethics of lawyers and doctors in government positions and

points to how this can be achieved by the inspectorial

profession having such an organisational credentialling

powers.

The final chapter of the thesis outlines the contentious

issues relating to propositions made as well as to the

model suggested. Specially mention is made of contentious

issues with a view to the implementation of the ‘special’

code of conduct and also to the demand for commitment from

management and inspectors. Some points for further

studies are suggested.

TABLE OF CONTENTS

STATEMENT OF AUTHORSHIP..............................................ACKNOWLEDGMENTS.........................................................ABSTRACT...............................................................TABLE OF CONTENTS....................................................INTRODUCTION.........................................................

CHAPTER 1 - ETHICS AND WORKPLACE HEALTH & SAFETY.....................1.1 DIFFERENT VIEWPOINTS FROM THE DEBATE ON PUBLIC SERVICE ETHICS............

1.1.1 The Ethics Act..........................................................................................................................1.1.2 Who does the Inspector serve: Some dilemmas..................................................................1.1.3 Points of view - The debate within administrative ethics...................................................1.1.4 Ethics education & systems...................................................................................................1.1.5 The preferred route................................................................................................................

1.2 THE NATURE OF WPH&S INSPECTORS.....................................1.2.1 The enforcer and educator....................................................................................................1.2.2 Scope of role diversity............................................................................................................1.2.3 Summary.................................................................................................................................

CHAPTER 2 - THE ROLE OF PROFESSIONAL WPH&S INSPECTORS IN LEGISLATIVE AND SOCIAL CHANGE....................................................2.1 HISTORICAL VIEW 1891 TO 1995: FROM STRICT GUIDELINES TO PROFESSIONAL JUDGEMENT..............................................................

2.1.1 From ‘factory’ laws to ‘risk’ laws............................................................................................2.1.2 Influences on formation of legislation.................................................................................2.1.3 Self-regulation........................................................................................................................

2.2 LEGISLATIVE CHANGE: PRESCRIPTION AND SELF-REGULATION....................2.2.1 Inspectorial tensions..............................................................................................................2.2.2 Inspectors duties....................................................................................................................2.2.3 Risk Assessment......................................................................................................................2.2.4 Inspector’s work environment...............................................................................................

2.3 THEMES IN WPH&S INSPECTORS ETHICAL REGIME............................2.3.1 Personal ethics not included.................................................................................................2.3.2 Fairness - equality..................................................................................................................2.3.3 WPH&S legislation & ethics....................................................................................................2.3.4 Legislative comparisons........................................................................................................

2.4 WPH&S INSPECTORS AND PROFESSIONALISM.................................2.4.1 Employment............................................................................................................................2.4.2 Employment criteria...............................................................................................................2.4.3 WPH&S inspector - Occupation?...........................................................................................2.4.4 Professional comparisons.....................................................................................................2.4.5 Summary.................................................................................................................................

CHAPTER 3 - ETHICS MATURITY: STANDARDS DEVELOPMENT...................3.1 WPH&S INSPECTORS AND SOCIETAL EXPECTATIONS...........................

3.1.1 Inspectors trained in ethics...................................................................................................3.1.2 Solutions to education and training.....................................................................................

3.2 DEVELOPMENT OF AGENCY SPECIFIC CODES - CODIFICATION OR OTHER WAYS FOR WPH&SINSPECTOR ETHICS?.......................................................

3.3 HOW CAN AN ETHICAL FRAMEWORK BE ACHIEVED?.............................3.3.1 Developing professional virtue.............................................................................................3.3.2 Systematic approach...............................................................................................................3.3.3 Recommendations on code formulation.............................................................................

CHAPTER 4 - CONCLUSION...............................................4.1 OUTLINING CONTENTIOUS ISSUES AND ISSUES THAT CAN NOT BE RESOLVED..........4.2 CONCLUSION AND SUGGESTIONS FOR FURTHER WORK............................

The more we descend to particulars,the more defects we discover(Thomas Aquinas)1

‘The Diaspora, the dispersion of peoplewho share the same values, is

becoming a much more importantpart of social structure than

organisations in a sense’(Professor Limerick)2

Introduction

Ethics and the public service is a blend which prompt

questions on how public servants should behave. Should

the behaviour be guided by principles similar to the Ten

Commandments ie simple principles; or should we produce a

new Justinian Code in which there is a rule for every

possible issue3? The context for this question in

Queensland has been produced by the enactment of the Public

Sector Ethics Act 1994 (PSE Act). Fundamentally this Act sets out

obligations and entitles government agencies to form codes

of conduct. Concomitant to this enactment the Queensland

government is pursuing reforms that aim to make the Act

more efficient and effective in the market place; and more

responsive and accountable to the constituents and

citizens. These reforms have predominantly entailed a

shifting away from central regulatory regimes in favour of

deregulated and devolved regimes. Until the PSE Act came1 Thomas Aquinas. “ Quanto magis ad propria descenditur, tanto magis inventur defectus”. Summa Theologiae,I-II, 94. 4c.

2 See Professor Limericks comments during the Royal Institute of Public Administration conference in Brisbane November/December 1995. p. 124.

3 This issue is argued by Kenneth Kernaghan, (Ethical Conduct: Guidelines for Government Employees, Toronto, Institute of Public Administration of Canada, 1975, 7). The argument was on Justinian and Mosaic codes “One of the thorniest problems in drafting a code of ethics is achieving a proper balance between very general and unduly specific wording”.

into being Queensland reformers and policy makers had

focused mainly on competitive practices and had largely

ignored ethical aspects in their considerations.

Therefore it is within the scope of this paper to outline

ethical problems and attempt some solutions to these

problems within a specified area of the Queensland public

service. The main aims of the paper are: to provide a

better definition of the ethical problems of Workplace

Health and Safety (WPH&S) inspectors and other types of

inspectors; to produce a view for resolve of ethical

issues; and to argue that a code of conduct which is

“regulatory officer-specific” is appropriate for WPH&S

inspectors. In the light of the heightened degree of

self-regulation involved we shall argue for the need to

develop an inspectorial subculture for WPH&S inspectors in

Queensland. Moreover this self-regulation, as presented

in this paper, may be the root cause of many ethical

dilemmas of the WPH&S inspectors. However, as there are

many similarities between WPH&S inspectors and other

categories of regulatory officers such as health

inspectors, liquor licensing inspectors, quarantine

inspectors or environmental inspectors. The issues and

dilemmas identified by this paper may have bearing on

these other officers. Therefore when WPH&S inspectors are

mentioned in this paper, this should in most instances be

taken to mean ‘officers administering a self regulatory

regime’. The foundation of the paper is a combination of

academic research; the author’s practical experience in

industry and government; and some ethics theory mostly

formulated within the domain of administrative ethics.

The main arguments of the paper are presented by taking a

fairly pragmatic approach to WPH&S inspectors and ethics

rather than a metaethical approach.

To illuminate what ethical dilemmas the WPH&S inspector

may face in carrying out her or his duties, it may

therefore be useful to draw attention to some problematic

cases.

Case 1: Inspector P J Jones, a 48 year old married man, is sent to an industrialaccident scene where a severe industrial accident has caused a male worker to losepart of his body and also seriously hurt is a female worker. Inspector Jones hasarrived at the accident site with very little information concerning who and what isinvolved. He starts his investigation and during the initial questioning finds that thefemale involved is his sister in law. Inspector Jones continues his investigation.Inspector Jones interviews all parties involved in the accident including thehospitalised male victim. Two days later the injured worker dies from complicationscaused by an amputation. When Jones’s sister-in-law is informed of her co-workersdeath, she suffers a nervous breakdown and is hospitalised. Jones has identified abreach of the Workplace Health and Safety Act 1995 and also identified the groundsfor prosecution. His findings include reasons for a prosecution against his sister inlaw as well as against her employer. Inspector Jones files a breach report againstthe employer but not against his sister in law.

Case 2: A female inspector born and raised in Jakarta, Indonesia migrated toAustralia to study ergonomics at an Australian University. Achieving her degree withhonours, she also became an Australian citizen, found employment as an WPH&Sinspector and took up duties as such. She does not have strict orthodox beliefs inher faith, but has some fears as to her prior religious learning which affect and areinherent to her behaviour. On a given day her job is to investigate some matters inand around the main church of her faith, this job happens to coincide with hersecond day of her menstrual cycle. Her faith identifies a woman in her condition asan “unclean woman” and as such has no access to the church What should theinspector do?.

Case 3: During a workplace audit a WPH&S inspector enters a Chinese restaurantowned and run by a Chinese recently arrived in Australia. The Chinese owner ispresent when the inspector enters and he offers the inspector a cup of coffee and apiece of cake to be consumed while they discuss what it is the inspector is here to do.While discussion is going on the inspector is offered cigarettes from a silver tray.

Also a calender is placed on the table to the right of the inspector. What should theinspector do?

Case 4: An inspector has been called to investigate a complaint at a workplacewhere unbeknown to him the news media also has been notified. When theinspector is about to leave, he is approached by a media crew seeking information.He refuses to give any. The case is reported by the inspector to his superiors with arecommendation to prosecute, but a decision is made not to pursue the matter dueto “political ramifications”. Later the inspector becomes aware of details in the pressthat bear no resemblance to the facts found by the inspector. Where does themisinterpretation lie? With the media or the inspector’s superiors? The inspector isagain approached by the media. It concerns him that he must act untruthfully. Whatshould the inspector do?

Case 5: You are a rookie WPH&S inspector on an assignment at a paper products company with an older inspector. You will take over the district from this older inspector within the next few months. When you have finished the assignment you observe a box next to your parked car. Both you and the older inspector have seen the box. The older inspector excuses herself that she must go to the restroom and leaves. You inspect the box and find it to contain products from the workplace you have just finished inspecting. The products are paper products like toilet paper, tissues and napkins. The value of the products are not more than twenty dollars and appears to be samples. It also appears quite obvious that the box is left there for you and possibly the other inspector. What should the inspector do?

These cases are taken out of the WPH&S inspector’s

ordinary working environment and will be utilised in the

paper to create emphasis on issues where raised. They are

noted here to indicate a need for clarification of ethics

for inspectors in a self regulatory regime and to identify

that most problems raised would be resolved by a more

procedural ethical regime. This is exactly what public

management has undermined, leaving an ethical vacuum.

One sign of this vacuum and a profound influence on WPH&S

inspectors is the increased number of WPH&S inspectors who

have been found suffering from work related stress in the

past five years. The increase is more than at any other

time in a century of the workplace inspectors existence in

Queensland (Personal Information). Work related stress is

not a socially created fad4 and it will be argued that the

phenomenon could be related to the lack of attention to

ethical quandaries that have arisen from the deregulatory

trend. Therefore ethics and more specifically ethics for

the public sector, is a participant with a role in the

WPH&S inspector’s working life and may be a part of the

solution in solving the stress issue. This paper will

draw out both historical and practical aspects of the

WPH&S inspector’s role in Queensland in an attempt to

answer comments from the sceptical or cynical debate about

current reforms of public sector ethics in Queensland.

These issues are discussed and demonstrated in relation to

ethics in the public service as an accepted practice.

Part of the discussion is the concern for ethical

practices including political morality of public officials

and the quality of public service professionalism of

mastering the art of living as a public servant in a

changing society. Society has changed rapidly in the

years from Coombs5 to Fitzgerald6 and after. Parallel with

this was increasing amounts of Australian social

legislation and theories for the legislation7. Much

legislation has been enacted in the past three decades as

4 More information on stress at work see ILO: World Labour Report 1993 (Geneva: International Labour Office, 1993. Chapter 5). Australian statistical figures are mentioned on page 67 along with costs. From policeofficers in the UK, a 1990 study found organisational and management pressures to be more stressful than operational police duties.

5 See H.C. Combs Royal Commission 1976.6 See The Fitzgerald Report 1989.7 For a clear discussion on aspects of change in social norms and legislation, see Ronald L Akers, Criminological theories: Introduction and Evaluation (Los Angeles: Roxbury Publishing Company, 1994) Ch 1.

a reaction to the social changes; acts like Occupational

Health and Safety, Anti-Discrimination, Equal Employment

Opportunities, and Freedom of Information legislation are

examples. Therefore, on the basis of change the

importance for debate on ethics and the public service is

self evident.

The question is then, is it the change from strict rules

to less strict rules that has changed the WPH&S inspectors

working lives? Does ethics have a role to play in this

change? Clearly making rules more flexible does not mean

governing less but governing differently. The question is

how the inspector should conduct themselves in this new

self-regulatory environment. In order to illustrate a

better understanding of what has transpired, Chapter One

firstly discusses various ethics viewpoints concerning the

public sector and identifies different positions of

commentators of administrative ethics. Secondly, the

chapter puts forward a view of the legislative change that

has taken place in the inspector’s work environment.

Chapter Two offers a history of the WPH&S inspector and

also discusses the change to the fundamentals of the

workplace health and safety legislation in support of the

argument in regard to the trend towards giving inspectors

even more responsibility for making discretionary

decisions. In conclusion this chapter argues the case for

a measure aimed at cultivating greater professionalism on

the part of inspectors. Chapter Three discusses

expectations external to inspectors; the development of a

‘regulatory officer’ code of conduct and suggests a

methodology to how an inspectorial code of conduct could

be achieved. In chapter four, the paper gives an outline

of contentious issues and suggestions for further research

into ethics and inspectorial powers.

CHAPTER 1 - Ethics and Workplace Health & Safety

1.1 Different viewpoints from the debate on PublicService Ethics

1.1.1 The Ethics Act

The object of this chapter is to create an understanding

of why ethics has become a prominent concern of modern

government. Firstly I will illustrate the normative

framework for ethics in the public sector, and secondly

explain why ethics is important for WPH&S inspectors.

Ethics and its place in the public sector was raised as an

issue several times by the ACT group (Riordan Committee)

in 1965 (Hughes 1981: 194); by Coomb’ Royal Commission in

1976 (Uhr 1990: 27); the Bowen Committee8 in 1979 (Hughes

1981: 196) and finally by the Fitzgerald Report (1989).

The latter report especially reiterated a need for public

sector reforms and recommended that ‘a properly authorized

and satisfactorily resourced Electoral and Administrative

Review Commission’ (EARC 1992) be established (Rec. A1:

370); and that this commission should implement and

supervise the reforms of the Report including ‘formulation

of codes of conduct for public officials’ (Rec. A10 (c) :

370). The recommendations of EARC resulted in the Public

Sector Ethics Act 1994 (PSE Act). This Act declared five ethics

8 See Colin Hughes, ‘Administrative Ethics’, In: Curnow & Wettenhall, Understanding Public Administration (Sydney: Allen & Unwin: 1981), where he cites a code of conduct for public servants ‘ when adopted, would have to be integrated into an already extensive and detailed set of obligations and duties. Its application would have to take account of the degree of sensitivity of the particular post occupied by the individual public servant, perhaps of the particular duties currently assigned to him, and of the degree of independent responsibility he exercises.

principles for all public officials in Queensland (section

6): -

· respect for the law and the system of government;· respect for persons;· integrity;· diligence;· economy and efficiency.(section 4(2))

Moreover, the PSE Act sets out the nature and purpose of

codes of conduct for all public officials in Queensland

(section 12 & 13); contents of codes (section 14);

preparation of codes of conduct (section 15); and

compliance of codes (section 18). Implementation of codes

of conduct was directed by section 23 under part five of

the Act. This part specified additional responsibilities

of the Chief Executive of an agency or department.

Inspection of codes (section 20); education and training

(section 21) are set out in this part. The ethics

obligations themselves are not enforceable under the PSE

Act (section 5(3)) but provisions for disciplinary action

under subordinate legislation are identified in section

24. As codes of conduct are intended to cover all

categories of public officials in Queensland (where

needed), even though they should be agency specific

(section 13) there are possibilities for WPH&S inspectors

to create their own code of conduct (section 14 (1)) as

long as it is within the broad scope of the five

obligations. However, it would now be opportune to

clarify some points of view on ethics in Queensland as it

stands, by having a preliminary discussion of the role of

the governmental system and secondly on the ethics points

of view of several commentators. This is to demonstrate

and establish a preferred route.

1.1.2 Who does the Inspector serve: Some dilemmas

Consider notably the question - who really does the WPH&S

inspector serve? Has the inspector only a duty to the

minister or is the inspector a public servant who has as

clients the public9? The urgency of that question is

intensified by shifts in management which deviate from

chain of accountability presumed by the Westminster

system10. Shifts that have more foundation in modern

management theories than political systems based on the

Westminster principle. WPH&S inspectors’ work environment

regime is self-regulation in a business environment which

mainly consists of small business; a work environment that

combines ethical diversity created by the inspectors and

communities in urban and rural Queensland. This role of

service is the cause of great debate and confusion amongst

WPH&S inspectors. Tension is created as some inspectors

hold the view that they only serve the minister and

therefore all rules and directives come from that front;

‘We are doing a good job when we are carrying out self-

9 On a light note, see Paul Hartigan (‘The Public Service Unzipped’. The Australian Magazine. October 28-29. 1995) 34-37, who, in a subscript to a cartoon, said ‘Your view, Madam, if I understand you correctly, is that the Public Service exists to give service to the public. This of course has a certain superficial appeal but it is not a philosophy to which I or my colleagues subscribe’.

10 See EARC Report 1992. section 2.64 ‘.. any Queensland Codes of Conduct for Public Officials should be consistent with “Westminster” principles...’.

regulation as ordered by the minister’11. Other inspectors

have the view that since no specific rules are in place

they can rely on their “old” methods to protect people,

and are ‘justified’ in carrying out work as usual ie prior

to self-regulation12. The latter see themselves as being

morally justified in just carrying on with the old

prescriptive mechanisms rather than the new legislation

where there are few specific rules to help business along.

So from a lack of a defined order of who the WPH&S

inspector serves, and from a lack of departmental rules, a

confusing domain has been created in which moral and

regulatory boundary-setting is largely left to the

inspector’s discretionary judgement.

1.1.3 Points of view - The debate within administrative ethics

In 1988, prior to the Fitzgerald Report, Queensland public

servants had received a new Code of Conduct for public

servants (C of C 1988), which showed that ethics was still

regarded as having some kind of place in the bureaucracy.

Paul Finn (EARC 1992: 20) prescribed a standard setting

for public servants to contain ‘three often conflicting

interests - interest of the public, interests of the

government. . .interests of officials both as officials

and as members of the public’. The latter is the issue

around which much debate has occurred and is an issue for

further argument in this paper. A pragmatic solution to

Finn’s standard setting is given by Sampford, who states11 This is based on the author’s conversations with inspectors and hearsay concerning inspectorial attitudes.

12 id.

it is ’axiomatic that we cannot improve the conduct of

public sector officials by ethics alone’ (Sampford 1994:

31). His position is one of ‘institutionalising’ ethics

with emphasis on fostering a sense of the desirability on

the part of all public officials at every level of

appointment. These two positions are the hub around which

various commentators give their views.

Ian Hunter and Jeffrey Minson (1992: 8) state the

importance of separating the ethics of public

administration from any kind of moral absolutism. They

sum up their concerns to be :‘. . . to remove bureaucracy from the ‘amoral’ limbo to which somuch contemporary thought on the shape of ‘a democratic society’consigns it, to restore to it something of its civic autonomy andethical gravity.’(Emphasis added)

They are clearly concerned for the moral views of the

public service of Weber’s ‘ethos of office’13 and seem to

follow John Uhr’s emphasis on a special ethics for the

public service. From another perspective Howard Whitton

identified that there was an inertia to continue with the

debate on applied ethics in contemporary public service.

From this position ethics should be re-examined for other

reasons than the loss of religious moral guarding (Whitton

1994: 42). He argued that positive values were as

necessary as the absence of negative values. Whitton and

13 Max Weber, Economy and Society. (London: OUP . 1968. 1404), The public servant is supposed to be something different. Difference is in responsibility to demonstrate duty stands above his personal preference. Weber talks about the organisation being in hierarchical order with fixed salaries, tenure, jurisdictional demarcations and procedures where the public servants loyalty is to the job.

other commentators also raised the issue of education and

training in ethics and the role this should play in the

public sector (Jackson 1993; Preston 1994; Whitton 1994;

Sampford 1994). Preston (1995: 50) contrasts two strands

in public service ethics. The first ‘stresses the values

of policy and policymakers’ and the second ‘emphasises the

institutional virtues of public servants’. The first

strand was argued on managerialism and moral standards,

and Preston cited authors like David Corbett and Michael

Jackson as spokespersons for this thinking. The second

strand has as primus motor John Uhr, who argues that

public sectors ethics has a role to articulate an ethics,

which is focused on ‘the actual role of the public

servant’ (Preston 1995: 50-51).

Sampford (1994) posits ‘that if you want people to behave

ethically and internalise the relevant values, you have to

get the staff who will live by them to take an active part

in their creation’. Here is an argument for public

servants (at all levels) to be directly involved and to

have ownership and be empowered in the spirit of a

participative management14. This view is not dissimilar to

the approach adopted in New South Wales by ICAC15.

Sampford’s view is a different kind of ‘ethics of agency’

where a ‘bottom up ‘ ethics approach with ethical circles

14 Participative management has been encouraged in much literature on business management and especially within occupational health and safety as an essential way to successful outcomes (Fotiades 1980; O’Brien 1982; Brooks 1987; Biggins and Farr 1988).

15 ICAC- Independent Commission Against Corruption, cited EARC p.53 ‘. . .starting from the assumption that those people who do the job are inthe best position to know what ethical conflicts are going to arise . . .’

should operate in a ‘justified’ agency (Sampford 1994: 20-

23). Ethical participative management would be taken to

mean that an ethics regime would not rely on absolutism

but more on situationalism; a kind of sustainable

relativism. Concrete rules would not decide but output

would influence the issue and an outcome would be achieved

by managers and inspectors agreeing to a certain course

for a certain issue; issues as were outlined in case 1.

These issues eg religion, administrative rules and

equality would then be addressed with a view to this case.

Sampford describes the rules that the inspectors ought to

live by as ‘critical morality’ where ethical behaviour

involves discussing problems, publicly stating them and

living by them (EARC 1992: 55). Staff in this

participative regime would not rely on their own ethics

but would have received some measure of how to be able to

address such issues eg through training and esprit de

corps building.

1.1.4 Ethics education & systems

Few commentators doubt that ethics can be usefully taught

(Kernaghan 1993, Jackson 1993, Longstaff 1994 and Preston

1994). Some education and training commentators have

argued that a virtue ethics would be an appropriate

standpoint for Public sector ethics to take (Uhr

1994:171). Virtues would allow us to perform the function

of WPH&S inspectors well16. Others have added to this16 Aristole, Nicomachean Ethics, (Harmondsworth: Penguin Books, 1976 [1953 J.A.KThompson translation]). Aristole discusses the aim of ethics was to identify aspects of being human and performing such functions that would

model by suggesting an achievement of ‘ethical maturity’17

(Holland 1995: 3). Charles Sampford (1994) suggests an

ideal ethics regime encompassing a general aspirational

code (PSE Act), agency specific codes of conduct, creation

of ethical circles, ethics education, ethics committees

and finally an office for public sector ethics.

Sampford’s argument runs parallel to a modern business

management approach, where ‘hard and soft strategies’ are

included (Gwynne 1987: 242-243). Kernaghan (1994: 614)

agrees partly with Sampford’s point of view. The former

debates values as they are shared in organisations and

finds a congruence amongst values of organisational,

public service and ethical origins. Kernaghan also

suggests the ethical process should be linked to Total

Quality Management (TQM) principles by empowerment of the

public servant who should work in teams. He states (1994:

629) ‘the fact that the new values are integral and

interdependent elements of a coherent model of public

organisation enhances their strength and likely staying

power’. The new values Kernaghan is referring to are

those of service, innovation, teamwork and quality.

Wiltshire et al. (1993) approve the creating of a culture

which incorporates values as having a strong influence

over the behaviour of individuals. These values are

lead to performing the functions well; to articulate virtues that should be cultivated to develop a ethical character with abilities to act morallyfrom deliberation or quick thinking.

17 Holland posits that taking home for the use by one’s child a government pencil, should not always be considered theft but may be a part of one’s reward package. Therefore, in a modern society, remuneration is not the sole desert resulting from government employment. If however, one should take home the whole cupboard of stationary, that should be considered theft.

represented as suggested by Van Maanen and Barley (cited

Sinclair 1989: 392) that in ‘occupational communities and

their subcultures in organisations, [they] can bring

powerful resources of commitment, dedication to excellence

and control’. In spite of disagreement on what side of

the ‘Rohr/Uhr ethical fence’ one stands there is

widespread agreement on not to be authoritarian when

teaching public service ethics and to always include case

studies to hone moral judgement. The preferred route for

further development is therefore now presented by argument

and evidence by John Rohr and John Uhr with a view to

general ethics.

1.1.5 The preferred route

Self-regulation, here taken to mean how inspectors behave

themselves and not how their legislation is administered,

has been raised in another aspect relating to public

servants by John Rohr (1984: 140) and John Uhr (1990: 22-

24). Rohr states that the public servant has a leading

role ‘as a part of a governing elite’ and ‘as an

administrator to invite. . . [the public] to the higher

ground of public interest’. Uhr compares past public

service ethics as a kind of self-regulation and a matter

which the community then relied upon as an ethos of

office. Rohr (1989: 16) states that public servants’

obligations are in some cases as occupationally specific

as any other professionals:

‘It is quite possible for a surgeon with impeccable ethical standards in hisprofessional life to be an absolutely irresponsible parent, a compulsivegambler, an incorrigible lecher, and so forth’ (Rohr 1989: 16).

John Uhr (1990: 22) posits a ‘quiet crisis’ in the public

service today and has grave concerns for the’ new

managerialism’ not creating a substitute for past ethics.

He finds it desirable that an ‘ethics of agency’ is

maintained with the actual role of the public servant and

the institutional context of utmost importance. He also

states that:

‘. . .the appropriate analytical framework focuses on professionalcompetencies: the radical idea being that promotion of a service of officialswith public interests to profess will deter officials with private interests toconfess’ (Uhr 1991a: 290).

Uhr discards social morality, personal or professional

ethics; the public servant performs duties as a

disinterested body with an attitude of no self interest;

the public servant knows the constitutional role for which

she/he is accountable to public trust. Judgement ideals

and standards are central to the discussion on

administrative and inspectorial ethics, however, a balance

must be struck between a self interested and a

disinterested inspector without ending in Hunter and

Minson’s ‘amoral limbo’ (1992). Therefore this paper

takes Uhr’s notion of an ‘ethics of agency’ is a realistic

and preferred route that should be achievable.

To sum up the positions on public service ethics, the

occupational subcultures identified above should be a

public service ethics framed professionally with political

morality and ‘public ethics’; a bureaucratic

accountability in the public sphere not including ethical

pluralism in the private; backed by basic concerns of

public interest, and finally that professional ethics of

public administration should rest on constitutional

requirements for professional and political integrity.

These principles, not necessarily taken in any order,

combined with Sampford’s management view are the central

point for further discussion. Rather than work on the

promise that rational and consensual foundations to

general ethics can be established, the assumption for

further discussion is a respect for a degree of

‘Westminster’ bureaucratic proceduralism combined with a

limited but real place for intelligent discretionary

judgement. How these various ethics positions are tied to

WPH&S inspectors is argued in relation to an inspectorial

subculture (following section) and then related to the

history of the WPH&S inspectors and their legislation in

Queensland (in chapter two). These discussions then lead

to specially justified ethical attention for inspectors.

1.2 The Nature of WPH&S Inspectors

1.2.1 The enforcer and educator

Attention has been drawn to the connection of the role of

the WPH&S inspectors and their operational environment

considering both their proactive (preventive) and reactive

(investigative) duties, and as indicated elsewhere the

emphasis on the “risk’ and self regulating legislation18.

In this environment the inspector is operating in a

capacity of educator and enforcer - ‘rule enforcer and a

problem-solving consultant, or a combination of the two’

(Rees 1988: 174). This has been brought on by rapid

progress and change in the public sector’s staffing and

its practices. These changes have been with a view to

sparse resource allocation; to change in focus of the

WPH&S legislation; and government focus on efficiency and

effectiveness19, and therefore have necessitated the

ethical questioning of certain present day practices.

There is a strong drive from governments for public

servants including inspectors to follow three elements:

namely respect for cultural difference; promotion of

social justice; and promotion of economic efficiency (OMA

1994: 37-39). Of course these policies and changes

influence the inspectors and give rise to practical

quandaries as in case 2 concerning religious practices.

According to the principles of ethics set forth by the

Queensland Government, public servants should serve the

18 See M. Quinlan, T. Farr and J. Payne, The Queensland Workplace Health and Safety Act: Heralding a New Era in Prevention or merely Symbolic?. (J. Occup Health Safety Aust,NZ. 1989 vol. 5 (3)) 265-274, for a discussion of the 1989 Act and its implications. Former Minister V. Lester is cited “ that the Act draw together in one act all prescriptions relating to workplace health and safety (267)”. The participative functions are highlighted along with self-regulation and enforcement. Five specific features are mentioned on page 272 single act, tripartite policy making, single government body to oversee, detailed standards as codes of practice and worker participation.

19 For in depth discussion on the issue of effectiveness and government administration, see P. Self, Administrative Theories and Politics, (Toronto: University Press, 1973) 261-77. See also, D. J Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford: Clarendon Press, 1990) Ch. 3 where he states that efficiency is a concept which is most at home in the mechanical sciences, and which can betransplanted only with difficulty to government administration.

interest of persons with full respect for their dignity

and also gain the confidence of their clients (PSE Act;

EARC 1992). Is the inspector gaining the clients

confidence by receiving a cup of tea? (see case 3). Is

the inspector gaining a client’s confidence in not having

the ‘same’ attitude as the other inspector? (see case 5).

This could impose stress on an inspector as enforcer and

educator. Stress that is evident especially when

considering inspectors are required to investigate clients

known as social ‘renegades’ and who may have few scruples

(McDonnell & Phillips 1993: 45). Imposing stress on a

truthful person not being able to tell the truth (see case

4). To which classes of problematic ‘clients’ are the

inspector the educator and to which are the inspector the

enforcer? The primary responsibility of an WPH&S

inspector towards a client may conflict with certain

ethical principles, and the majority of Queensland WPH&S

inspectors believe that in most cases the conflict must be

resolved in favour of the client, all the more so if the

client is a small business person (Personal Information).

It is all very well to remind ourselves of the framework

of ethics for WPH&S inspectors provided by the Act but how

is this framework to be tailored to the conflicting

demands of the inspector’s job?

1.2.2 Scope of role diversity

Queensland’s WPH&S inspectors have diverse roles. They

may be the inspector stationed in a city environment with

on-call specialist help or be an ‘independent

practitioner’ within a small rural community. The role in

both cases demands different kinds and degrees of

discretionary decision making. In one case for example,

from a conclusive norm of - if A, then do B; to an

instance that is more statistical rather than exact - an

exposure to Carbon Dioxide that is exactly as per the

guidelines20. These instances are based on observations

from fallible human observers. The variety of

complexities in the inspector’s role is not limited to

geographical or societal areas but also encompass

decisions and solutions. The reality is that the WPH&S

inspector is semi-autonomous and is the link between

politician and the general public. The inspector, the

implementor of self-regulation, receives little help from

the top of the hierarchy and has generally few specific

rules to alleviate implementation. This autonomy can

result in right or wrong judgments and an ethical dilemma

as an example may illustrate.

A street, selected at random, has approximately 40 small to medium sizeworkplaces. Several of these workplaces have, as their occupation, spray painting ofautomobiles.One owner, X, is charming and charismatic; knows a great deal about workplacehealth and safety and the 1995 Act, and especially of its requirement to obligations.Workplace X is reasonably kept and maintained, and has recently achieved a QualityAssurance accreditation with a well known accrediting organisation. Ten shops away on the same side of the street we find workplace Y also an autospray painter. Here the story is reversed, the attitude of employees and theowner/manager is aggressive, grumpy and not at all welcoming to the inspector.

20 See National Occupational Health and Safety Commission disclaimer in their National Codes of Practice eg Control of Workplace Hazardous Substances,’ It should be noted that National Commission documents are instruments of an advisory character, except where a law. . . makes them mandatory’. This isnot the case in Queensland. They are only advisory and form part of the inspectors evidence.

The inspector was met with - ”What, another bloody government agent! Whatbureaucratic nonsense are we going to be presented with today?” Both workplaces are in need of more working light inside the premises, theventilation is not adequate for the special types of paint in use at both workplaces.Workplace X has four citations, three warning (oral) and one improvement notice(written and time dependant), while workplace Y has four improvement notices. The inspector’s justification for the differences in citations is that in her opinionworkplace X will comply without hesitation, while workplace Y will more than likelyhave to be convinced all the way to compliance.

The case presents the dilemma on equality and fairness.

The discretion may be well applied for outcome but is the

decision of the inspector right? Such exposure to varied

employers and employees, mixed with beliefs that the

legislation they administer is misguided, are the main

source of scepticism by present day WPH&S inspectors (Lamm

1995: 415). This scepticism leads to a question raised by

Kernaghan (1993:17): ‘ Should public servants implement

zealously a policy which they think is misguided?’.

Frustration and stress arises when such questions are left

unanswered over time. Perhaps higher management is at

fault, a failure of leadership as identified by Kleinig -

‘an organisation can suffer systemic decline to the point

where it looses its claim to our loyalty’ (Kleinig

1994:11). The contention here, however, is that even if

Kleinig is right this would only result in shifting the

ethical problem from the inspector’s level to a management

level. However, there is also available to the inspector

other ‘rights’ legislation, for example grievance

procedures and Whistleblowing Act from which the inspector

can seek remedy for the frustration.

Any workable Ethics regime for inspectors today has got to

be situationist (Pope & Forsyth 1983; Deering et al.

1994). In reality most of the value judgements of an

inspector are decided as the nitty-gritty situation

presents itself on the day and on a case by case basis.

The redundancy of general moral principles is explained in

greater depth in Chapter Two. The case by case management

may seem unsatisfactory. However, cases must be seen in

relation to the work environment of and expectations to

the WPH&S inspector. Few other government employees have

such a fuzzy accountability factor to contend with during

performance of duties as do WPH&S inspectors.

1.2.3 Summary

All decisions made by an inspector may be called into

legal scrutiny at any time; any time could mean five years

after an investigation was finalised21. So morally

questionable decisions can easily come to public

attention. The fuzziness of current moral boundaries

pertaining to inspectors is therefore a real concern, all

the more so in today’s multicultural society. WPH&S

inspectors are required, in all circumstances, to develop

and utilise an ethical framework, when making

determinations on risks concerning clients and work

situations22. The WPH&S inspector walks daily on the line21 The author has been at court to present facts of a case five years after the accident was investigated and a report was finalised. The case of an investigation of an incident four years after its occurrence has also beenexperienced by the author. Several inspectors had similar experiences.

22 See Dr J Wilks et al. A Best Practice Program in Managing Tourist Health.(Brisbane: Best Practice Forum, 1995). 112-116. discussing risk management of a traditional approach with avoidance, retention, transfer and reduction as methods to

between law and facts which should be taken to mean that

interpretation is the essence of inspectorial life under

self-regulation23. Interpretation is the sum of discretion

and ethics. Therefore, one should expect conflicts to

arise; conflicts that are of an ethical nature and not

just with a legal direction. To date, conflict resolution

of an ethical nature is not prescribed for inspectors

other than by PSE Act and the Code of Conduct of 1988.

However, an inspectorial code of conduct could encourage

inspectors to use their professional judgement and

expertise to resolve complex issues.

These complex situations are part of the legal environment

in which the WPH&S inspector operates daily and in the

next chapter an attempt is made to outline this legal

environment and the changes which have occurred recently

in Queensland. Chapter Two focuses strongly on historical

aspects of WPH&S inspectors and their work environment

with a view to further arguing the necessity of a code of

conduct for these ‘regulatory officers’. Chapter Two also

argues this necessity from a task specific and

professional point of view.

achieving health and safety at a workplace .23 See for further illustration D.J Galligan, Discretionary Powers, (Oxford: Calrendon Press, 1990) 68-72, where he discusses especially Weber’s substantive rationality with “the line between rules as self-contained meaning contents”; between seeking the logical meaning of a rule and reasoning about its purpose, and therefore about principles, policies, andvalues that support it”.

CHAPTER 2 - The Role of Professional WPH&S Inspectors in Legislative and Social Change

2.1 Historical view 1891 to 1995: From Strict Guidelinesto Professional Judgement

2.1.1 From ‘factory’ laws to ‘risk’ laws

The purpose of the following historical view of WPH&S

inspectors and the legislation which they administer is

firstly to identify aspects of operational conditions that

have changed; and secondly to outline ethical issues in

order to create a clearer understanding of the importance

for developing codes of conduct and ethical training for

‘regulatory officers’ eg WPH&S inspectors.

The Queensland Safety Inspector was first appointed to

service in the late 19th century. This position came

about as a result of British legislation being duplicated

under which ‘the first four of Her Majesty’s inspectors of

Factories’ had been appointed in England in 1833’ (HSE

1983: 5). Occupational health and safety legislation was

enacted and implemented in Queensland following the Sir

Samuel Griffith’s Royal Commission in 1891. This early

safety legislation (for this paper known as ‘factory’

legislation) was prescriptive, concentrating on issues of

working hours, women and children - in a narrow and

specific focus (Hilless 1974: 4-5); relying more on

prescription rather than modern legislation focussing on

prediction and foreseeing outcomes. Common law was at

that time still concerned with the ‘unholy trinity’ of

voluntary assumption of risk, common employment and

contributory negligence (Fleming 1983: 485). Later

legislation (WPH&S Acts 1989 & 1995) was intended as law,

focusing on risks (‘risk’ legislation) and minimisation or

elimination of these risks based on principles of duty of

care and obligations of participants in the workplace.

There was a shift in society’s control mechanisms and a

social context behind the evolution of ‘factory’

legislation24 because awareness was important as was

legislation which was perceived to be able to deal with

contemporary issues, and therefore changes to legislation

were implemented several times in the following century.

It is these changes we now outline.

Accordingly, a retrospective view of WPH&S legislation

encompassing comparisons may be useful. The emphasis and

common content of a hundred years of Queensland

legislation, is the protection of workers at work which is

illustrated by the following three quotations from

relevant reports and legislation:

‘ The Commissioners considered it advisable to prepare their report under fiveheadings namely:

(a) The hours during which persons are employed;(b) The conditions under which children are employed;(c) The sanitary conditions;(d) The manner in which protection is afforded against the dangers of

machinery; and

24 See T. Dwyer, 1992. ‘The Industrial Safety Professionals: A Comparative Analysis from World War I until the 1980’s’. International Journal of Health Services, vol. 22 (4): 705-727. who argues that factors such as increasing literacy and popular writing were important to the publics’ response to workplace injuries which seems to indicate that awareness was important for social legislation.

(e) Other matters concerning the welfare of the persons employed in shops, factories and workshops.’

Source: Hilless 1974: 7 (Emphasis added).

As a consequence of this report the ‘Factories and Shops

Act of 1896’ was enacted with provisions for appointments

of male and female inspectors. As a matter of historical

evidence female inspectors were appointed under this Act

and subsequent legislation in Queensland until 1940, and

then not again until 1990 under the Workplace Health and

Safety Act 1989 (Hilless 1974: 18). The Workplace Health

and Safety Act was enacted in 1989 and had as its purpose

clause:

‘. . . to consolidate and amend the laws relating to securing thehealth and safety of persons performing work, protectingpersons, other than employees, and members of the publicfrom danger from such work, protecting persons fromrisks to health and safety from certain plant, and forrelated purposes.’

Source: Workplace Health and Safety Act 1989. Reprint no.2. 9 December 1992. Long Title of Act, p.7 (Emphasisadded).

New systems of governing were put in place and one such

system had as its purpose to ensure and review active

legislation was useful and understandable (BRRU 1991: 3-

4). As a result of this review process, the ‘reasonable’

Workplace Health and Safety Act of 1989 was reviewed in

1993/94 and was subsequently replaced by a new piece of

legislation in April 1995 which obligates employers and

others to ensure safety of persons at work. This new Act

had as its long title or purpose clause the following:

‘ Workplace Health and Safety Act 1995: An Act to promote andprotect freedom from disease or injury to persons caused,

and risk of disease or injury to persons created, byworkplaces, workplace activities and certain plant, and forrelated purposes.’

Source: Workplace Health and Safety Act 1995. 11 April1995. Long Title of Act, p.11 (Emphasis added).

In addition to just exemplifying similarities of ‘factory’

and ‘risk’ legislation, these quotations also communicate

intended background for appointment and operation of WPH&S

inspectors - namely to protect persons at work in

Queensland25.

In sum the contrast of the hundred years of legislation

moved from a narrow focus on protection of dangers from

machinery to protection and promotion of freedom from

danger and disease. For example in 1897 an inspector had

to obtain a magistrate’s written permission to enter a

workplace and the permission had to be enforced within one

month of being issued (Hilless 1974: 18). Once on the

premises, the inspector had prescribed rules on what was

permitted (in compliance) and what was not. Regulations

were indeed specific, eg a demarcation line painted on a

floor to segregate persons and goods ‘shall be yellow and

two inches wide’ (The Shops and Factories Act 1964); or

‘the owner of a crane shall produce a test certificate of

any rope in use on a crane’ (Inspection of Machinery

Regulations Reg. (20 (6)(b)) 1980). It would seem such a

regimented and legislated means of entry and subsequent

performance of duties left little to the inspector’s25 It is worth mentioning that the 1989 legislation was one Act representingfour acts - The Shops and Factories Act 1960, Inspection of Machinery Act 1915-1974; The Construction Safety Act and Parts of the Health Act. Thiscompression of legislation was in line with the recommendations of Lord Roben in his Inquiry on page 151.

professional judgement. However, such methods and

prescriptions changed, as indicated by the Act of 1989

(section 81 (a)) and the Act of 1995 (section 104). Both

Acts permit the inspector at any time to enter and to

remain at any workplace, for as long as the inspector

deems necessary. Contemporary inspectors’ access to

workplaces could be read to be more the individual

inspector’s choice without a third party ‘scrutineer’26.

2.1.2 Influences on formation of legislation

Between 1972 and 1989 changes to occupational health and

safety legislation were introduced through political and

economic pressure to governments in Australia and globally

(Quinlan 1995: 3). For example pressures came locally

from pressure groups in business eg Business Council of

Australia, and globally from organisations like ILO and

convention 155 on Occupational Health and Safety. USA

implemented new occupational health and safety legislation

on 29 December 1970, however, the overtones here are more

of an economic than of a social justice nature27.

26 To identify an interesting point of the pendulum effect on powers of the inspectors, it should be mentioned that powers of WPH&S inspectors have been reduced from 1989 Act (section 81) to the 1995 Act (Part 9). This reverse swing was caused by the political opinion having the view that WPH&S inspectors had too much power under the 1989 legislation; in fact, it was pointed out that a WPH&S inspector had more power than a Queenslandpolice officer (Review of WPH&S 1993: 24), which influenced and may have lead to the powers of WPH&S inspectors being curtailed under the 1995 legislation.

27 See Occupational Safety & Health Act 1970 US (Washington: Government Printer, 1970. sec. 2 page 1) which states ‘ Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are ahindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments’.

England had an inquiry into workplaces from which the Lord

Robens Report resulted in 1972 and a Workplace Act in

1974. The Robens Report (1972) gave the basis for the

legislative changes in Commonwealth countries - including

Queensland - with a finding that new legislation should

‘not be a long drawn out process of consultation at arm’s

length, but by associating outside interests more closely

in the actual process of regulation-making and review’

(Robens 1972: 45). Moreover, legislation should be of

self-regulatory intent (Robens 1972: 12) ‘where those that

create the risk and those working with them should solve

the risks’ (Robens 1972: 7).

This axiom found very few opponents but theory and its

implementation are two different things. The ‘factory’

legislation was criticised for assuming that ‘apathy’ was

a ‘single most important reason for accidents at work’

(Brooks 1988a: 242). Eakin stated (1988: 64) ‘

intervention in certain employee behaviours, then, becomes

a personal gesture rather than an impersonal application

of bureaucratic “rule” or external regulation’. These

views had an influence and helped towards the issuing of a

greenpaper on occupational health and safety for

Queensland in 1987 which again resulted in the 1989

Workplace Health and Safety Act. The perennial attacks on

legislation and governments continued from many sides of

society28. One early critic of ‘risk’ legislation in28 For discussion on accidents, injuries, occupational health see M Quinlan,

The Industrial Relations of Occupational Health, (School of Social and Industrial Administration, Occasional paper no. 45) 1989. Quinlan makes a tight linkbetween industrial relations and occupational health. See also Breen

Australia was Adrian Brooks (1988b) commenting on other

Australian state legislation before Queensland had its own

health and safety legislation in place. Brooks queried

whether the Robens report’s recommendation of performance-

based legislation was ‘based more on assumptions than on

demonstrated fact‘ (1988b: 348). However, this view point

was cast aside and large business organisations, the

public in general and many economic commentators agreed to

governments are too big and too interfering (Aaron 1984;

Hughes 1991). This viewpoint reflects an international

paradigm shift: governments should not, as a rule, provide

services that can be supplied by private business. Other

commentators point out government regulation and provision

of services as being too costly and should consequently be

minimised (Prasser 1992: Chap 7; BRRU 1994: 7). Therefore

changes to the legislative structure of health and safety

had to be constructed.

2.1.3 Self-regulation

From a government’s point of view the changed structure

for workplace protection meant a self-regulatory regime

with a primary reliance on employers to self-manage their

health and safety. Modern health and safety legislation

changed into self-regulation via risk management systems

(Eakin 1988; Braithwaite 1992; Bellett 1993; Quinlan 1995;

Miller 1995) and removed particular rules to remedy risk

by ‘providing certainty of requirement in specifying

Creighton & Neil Gunningham, The Industrial Relations of Occupational Health & Safety, (Sydney: Croom Helm) 1985. The authors compares the past where safety was argued by unions by ad hoc measures.

general risk management mechanisms for ensuring health and

safety’ (Hodges 1995: 25). This statement may assume that

a value and fact dichotomy is ‘absolute and dominant, and

that scientists and other experts can give uniquely

correct answers to factual questions, which are value-

neutral’ (Bellett 1993: 534). This was of course not

always the case (Crawford-Brown & Pearce 1989). However,

controversy was evident and as Brooks stated (1988b: 353)

‘ knowing that one has such an obligation [legislative] is

one thing. Knowing how to comply is quite another’.

Within this self-regulatory regime WPH&S inspectors make

judgements on a workplace issues from a WPH&S Act used as

the linch-pin backed by codes of practice as ‘rules’.

This decision process was vastly different to ‘factory’

legislation where ‘dangers of machinery’ and hazardous

substances such as asbestos and lead were regulated by

prescribed rules also covering sanitary facilities29.

Issues on asbestos and lead are presently governed by a

compliance standard while a code of practice guides

sanitary facilities. These changes are also vastly

different because ‘risk’ legislation encompassed broader

ranging issues such as manual handling and even

ergonomics. Therefore, the underlying focal issue of

29 On an issues such as guarding Inspection of Machinery Act 1951-1984, called for insection 21 “Engines, transmission machinery, etc. The owner shall cause to be securely fenced with fencing of substantial construction...” The Workplace Health and Safety Act 1989, section 9 employers to ensure health and safety, with a subordinate regulation Workplace Health and Safety Regulations section 132-135 safeguards. This was less specific than previous, but some rules were in place. The Workplace Health and Safety Act 1995 has in section 28 “Obligations on an employer, and defences in section 27. The rules are now in form of a compliance standard called code of practice for plant which gives a risk assessment as the tool for decision.

establishing ‘dangers of machinery’ had being shifted to

‘all dangers to a person at work’. For example, an

inspector must, under ‘risk’ legislation, be able to

answer yes or no to a question like ‘evidence that work

practices and systems of work involving manual handling

are performed without uncontrolled risk to health and

safety as far as is practicable30?’ (WH&S 1993: 15-16).

Moreover, the overriding goal of self-regulation was not

to enforce the law but to reduce risks both at the acute

level (eg accidents) as well as in the long term, namely

the chronic level (eg cancer). This was not possible

under the ‘factory’ legislation and therefore the intent

was to make legislation proactive and create an equality

for what Quinlan and Bohle (1991: 198) described as ‘an

unknown but not inconsiderable number of workers [who] had

no regulatory coverage whatsoever, while the remainder

enjoyed protection for only a limited number of hazards

they actually faced’.

This paradigm shift of legislation was mainly executed by

Queensland’s inspectorate from 1989 to 1994 and was

implemented through an auditing process with a strong

reliance on education and very little prosecution31. The30 See WH&S 1993, Compliance Audit Program, (Brisbane: DEVETIR, 1993) 15-16. Three questions should lead the inspector to determine compliance for manual handling for example they would be. 1) Are there specific high risks in movement, posture and layout involved in manual handling tasks atthe workplace? 2) Are there specific high risks in work environment or individual factors? and 3) Are there adequate control measures in place which minimise these risks?

31 For a discussion on the critical issue of enforcement, see Christopher Stone, Where the Law Ends, (New York: Harper and Row, 1975), Stone discusses social regulation of safety and health at work where inspectors take into account economic and social costs when they determine how to apply the

result was very few cases (some commentators have

mentioned two in total over five years) were actually

prosecuted on a risk assessment32 basis and not as a

consequence of an accident (Information DWHS database

1995). As a result of the legislative review in 1993/94

and a political call for implementation of tougher

measures ie more prosecutions, a system, mainly consisting

of compliance auditing has been implemented by the

inspectorate in Queensland which naturally is a basis for

further frustration on behalf of the inspectors.

This compliance auditing system places more emphasis on

management procedures and systematic approaches than

‘factory’ legislation which was founded with an emphasis

on compliance to rules and a greater distance between

employer and employee. Best practice techniques and

contemporary safety legislation places greater emphasis on

participative health and safety management via

consultative arrangements33. Moreover, the participative

regime has been argued as being capable of creating

opportunities for employees and employers to formally

negotiate workplace reforms that simultaneously enhance

productivity and OHS (Oxenburgh 1994: 55; Quinlan 1995:

27). Queensland’s ‘risk’ legislation is intended for

law. See also Felicity Lamm, Occupational Health and Safety in Small Business in Queensland & New Zealand. (Unpublished article 1994, University of Auckland).

32 See Ian Glendon, Risk Management in 1990’s where he on p.25 cites R.T. Booths that risk assessment’ as a process where judgements are made about harm that might arise from an activity at work, and the likelihood that harm will occur’.

33 See Workplace Health and Safety Act 1995 which has provisions for Health and Safety Representatives (Div. 3), Health and Safety Officers (Part 8); workplace committees (Div.4)

tripartite solutions to workplace health and safety issues

and was of importance under the 1989 legislation (see

section 7 (h)). Naturally these shifts in social

expectations also had influences on the common law. In

the 1930’s the case of Donoghue v. Stevenson reshaped the

common law principle of negligence, and has had enormous

influence on statutory legislation, especially safety

legislation, since that time. The case found a duty of

care to exist between a manufacturer and a consumer34.

2.2 Legislative Change: Prescription and Self-regulation

2.2.1 Inspectorial tensions

Surprising if, with all those changes to common law

principles and technology and emphasis on less government

interference, there would not be changes to the work

environment of the WPH&S inspector. As indicated

elsewhere it has been acknowledged for many years that

tensions have existed between differing strategies on how

to achieve health and safety at workplaces. For example,

in Victorian England ‘there were those who favoured an

enforcement policy weighted towards conflict and

prosecution, and those who were sympathetic towards an

approach emphasising co-operation and persuasion’ (Bartrip

and Fenn 1983: 213). Recently the Industry Commission

34 Case reported as M’Alister [or Donogue] v. Stevenson [1932] A.C. 562; 147 L.T. 281, In: W.L.Morison, Robin, L. Sharwood & C.S.Phegan. Cases on Torts. (Brisbane: The law Book Company, 1973). 170-178. See also John G. Fleming. Law of Torts. 6th Edition. 464-465. The injury alleged resulted from consuming ginger beer from an opaque bottle which had been purchased by a friend from a local store and contained the decomposed remains of a snail. By a narrow majority [of Law Lords] it was held that these facts, if proved, discloseda cause of action against the maker of the ginger beer.

(1995: 36-37) has stated that statutory inspections are

diverting inspectorates from deterrence and has called for

better targeted inspectorate resources which should

‘penalise all significant offences’. This suggests a view

closer to a social control dichotomy between deterrence

(sanctioning) and compliance (cooperation) as posited by

Lamm (1994); between a strict enforcement and a benevolent

enforcement.

However, from these findings we see the now traditional

conflict in health and safety still exists, and as Wayne

Pardy states that (1991: 11) ‘traditional approaches to

health and safety simply haven’t worked’ which is

illustrated by, for example, machine guarding on which

Watson expresses his view of technology change like

‘distance fencing to micro chip’ (HSE 1983: 53). In other

words issues of guarding and protecting humans from risks

relating to machinery are huge and many35 and virtually

still unsolved after six years with self-regulation.

Issues concerning guarding have been widely debated since

James Watt invented the steam engine, and yet in

Queensland, with its many pieces of legislation since then

and legislative emphasis change (self-regulation), not

enough seems to have been done to avoid many severe

accidents (QSO Database 1994). Therefore from ‘factory’

legislation considered as operating with limited

discretion to ‘risk’ legislation operating with comparably

much extended discretion, the outcomes appear almost

35 sup. note on guarding.

without a projected or expected difference. To reach an

acceptable solution other measures would have to be

identified and implemented; these measures could be an

approach encompassing ‘education, advice, persuasion and

negotiation’ (Hutter 1989: 155).

2.2.2 Inspectors duties

There are a few assumptions to make and accept here

concerning the WPH&S inspectors and their duties.

Firstly, the inspector must serve the public interest;

secondly, be conducive to the Westminster principle of

government; thirdly, be effective and efficient in an

economic manner and all this as a consequence for the end

that justifies the means36. Also accepting as a primary

assumption that public service should achieve an effective

outcome of government policies, the WPH&S inspector must

have a role and rules to guide them in that direction37.

An effective public service apply a role to individuals as

members; it applies rules that are followed by apolitical

and professional members who do not mix feelings or

private beliefs into performance of their duties in a

‘trusteeship of the Public Interest’ (EARC 1992: 21-22).

Therefore, carrying out of duties of a WPH&S inspector in

Queensland deals with establishing what level of

compliance there is at workplaces, ie compliance with the36 See D. J. Galligan, Discretionary Powers: A Legal Study of Official Discretion, (Oxford: Clarendon Press, 1990) for an illustrative argument against the mixing of government and business techniques. Galligan states that the relationshipbetween resources and returns is a matter of profit and this is not alwayscompatible to achieving stated goals of a government.

37 See Cabinet Submission, PSMC, August 1994.

Workplace Health and Safety Act 1995 and the fulfilment of

certain obligations of the employer, self employed etc.

At first glance this might therefore seem a simple answer

of either/or; actually if noncompliance is found - then

implement remedies. Self-regulation requires of the WPH&S

inspector not only knowledge of legislation and technical

information, but also an amount of ethical maturity on

which to base judgement. The importance is not only in

the end - the outcome, but rather in the decision making

process that justified and finally led to this outcome. A

system based on an ideal of moral growth which has no

right or wrong answers similar to Kohlberg’s (Sprinthall

and Collins 1988: 188) is illustrated with real life

situations of inspectors; except for one thing, namely

the inspector’s decisions are outcomes that she or he may

have to defend in a court of law. The process elements

that a court of law utilises are - a duty, a breach of

that duty, and a damage (accident/incident), naturally all

of these are dealt with in hindsight. Most of the

inspectors decisions are based on risk assessment.

2.2.3 Risk Assessment

The WPH&S Act 1995 prescribes how obligations can be

discharged if no standard is made (s.27). This is done by

a person taking ‘reasonable precautions’ and exercising

‘proper diligence. . .’ (s.27(3)). Health and safety is

ensured by a risk assessment (s.22). Therefore by

obligations of the Act an employer is required to take

preventive steps prior to any existence of any concrete

damage or accident; a positive action must be established

so to speak, ‘one can not stick their head in the sand’

(personal Information)38. Likewise an inspector must act

in the spirit of the WPH&S Act and apply a risk assessment

to a ‘hypothetical’ situation where no damage has

occurred, but is must also be the opinion of the inspector

that some damage may, with some probability, happen in the

future39. Therefore an inspector acts within the scope of

the WPH&S Act (s.22)40; in the interest of the common good

and with prevention foremost in his or her mind; however,

the inspector is required to make a value judgement and

exercise a wide measure of discretion41. We can illustrate

the risk assessment and its potential of variance with an

example:

Case 6:A WPH&S inspector stops a new technology-laden amusement device at a majorannual industrial and rural exhibition in Brisbane. The device - “Opus Magic SpaceWoofer”, is, in the inspectors opinion, not adequately separating the public from themachine when it is operating42. The owner is not convinced of the inspector’sjudgement and calls on a second opinion. After four hours of negotiation with

38 This information was given by an inspector during a lecture on Health andSafety given at a South Brisbane workplace in February 1996.

39 See John Rohr’s Ethics for Bureaucrats.(New York: Marcel Dekker, 1989) 81; “A justice may soar to the highest abstractions in discussing such lofty generalitiesas due process of law, but eventually he must decide whether the confession was admissible or the book obscene or the statement libellous. He must apply immediately to a concrete situation whatever wisdom he may possess. As Justice Brennan recently remarked, judges “ unlike literary critics. . . cannot merely savor the tensions or revel in the ambiguities inhering in the text-judges must resolve them”.

40 See WPH&S Act section 22, which a) identifies hazards; 2) assesses the risks that may result because of the hazards; 3) deciding on control measures to prevent or minimize the level of risk; 4) implementing controlmeasures; and 5) monitoring and reviewing the effectiveness of the measures.

41 It should be borne in mind that the inspector must gather facts and prove‘beyond reasonable doubt’ that the hypothetical might happen. The WPH&S Act is quarsi-criminal legisaltion, hence the severe proof condition.

senior inspectors, the owner is permitted to operate the machine again underconditions that personnel are stationed to ensure public safety while the machine isin operation. The owner may have a case for legal action, against the inspector, forlost income.

So here the need is for legal indemnification unless there

is evidence of bad faith, malice or frivolousness on the

part of the inspector. Where no clear guidelines are

present the decision is one of discretion, admittedly, on

the comparative knowledge of the inspector, and balanced

with a view to principles of reasonableness,

foreseeability, preventability and causation (Brooks

1988a: 73-79); value judgement or discretion, and

certainly not without due concern for the balance between

risk and money, trouble and time (Edwards v. National Coal

Board [1949]1 K. B. 704-710). In courts of law these

principles are primarily utilised with the benefit of

hindsight, and not as intended by the Workplace Health and

Safety Act 1995 where the intention is prevention through

proaction, - to view the future from a point of reason. A

hypothesis that must be raised from this argument: - risk

assessment in statutory law is it a passing phase as was

the ‘unholy trinity’ of common law defences viz assumption

of risk, common employment and contributory negligence?

(Fleming 1983: 485). One final comment on risk

assessments should be raised. What appears to be

government reducing its responsibilities by self-

42 The inspector bases judgement on Workplace Health and Safety (Plant) Code of Practice. This code has a section on employers (s. 8) and subsection 4 - “Safeguarding . Where appropriate, risks associated with some hazards should be minimised through the use of safeguards, such as guards, fencing, enclosures or safety devices”. The inspector can also use as identified in “List of Standards (p.94) AS 3533- Amusement rides and devices”. This standard is a design standard and has some help but notmuch concerning guarding or fencing.

regulation via risk assessments and risk management

methods could in fact be taken to be government extending

its affairs into matters that do not involve legal

infractions. We must cease the jurisprudential advance

here and return to arguments focusing on the inspectors

and their work environment.

2.2.4 Inspector’s work environment

We have now established that value judgement via risk

assessment to be a major element contained within the

inspector’s work environment. Also in the inspector's

mixture of work environment and duties outlined so far we

should add, if only briefly, culture and even multi

cultures (see case 2 and 3). This is particularly

interesting as was identified by Perrow (cited Eakin 1992:

700). He proposed that ‘individuals make judgements and

decisions about risk on the basis of ‘social and cultural

rationality’ ‘. In a contemporary Australian context

inspectors and those they inspect are not solely of Anglo-

Celtic ethnicity or even English speaking background;

neither is the community, in which they operate. An added

facet to realise is the phenomenon of multiculturalism and

how this multiculturalism would impact on the inspector’s

method of reasoning and the levels of making moral

judgement. We have outlined the WPH&S Act and the PSE Act

as pieces of social legislation and argued the WPH&S

inspectors position is an ethical and societal interplay

and how the connections are made. From this position we

shall now be more specific in what dilemmas an inspector

may encounter.

2.3 Themes in WPH&S Inspectors Ethical Regime.

2.3.1 Personal ethics not included

Distinctions between personal ethics and social ethics

rest on differentiating between duties to oneself and

duties to others, and one standard question of ethics is:

- which of these is primary? A counter argument would be

to regard the distinction as deceptive, and regard all

morality as essentially social because comprehending

problems emanate from a social setting. Naturally both

personal ethics and social ethics are at play for the

inspectors, however, to what length personal ethics should

be taken is open for further debate, but not, within the

limits of this paper. Considering the issue of personal

ethics the paper relies on John Uhr’s ‘ethics of

agency’.43 Such a point of view may lead to an

institutionalised public service type of ethics which

indeed could be realised within the Public Services Ethics

Act’s five obligations. Therefore accepting the position

of not involving personal ethics or at least setting

limits to their influence may call for professional WPH&S43 For further illuminating discussion on ‘ethics of agency’, see John Uhr, ‘ Managing the Process of Ethics Training’, In: N. Preston (Ed). Ethics for the Public Sector: Education and Training (St. Leichardt: The Federation Press, 1994)161-178. See also John Uhr, ‘Ethics and Public Service’, Australian Journal of Public Administration vol. 47 (2): 109-118. June 1988.

inspector ethics. We shall continue our argument from

this view point. Before we continue we should identify

the most common kind of ethical dilemmas for WPH&S

inspectors. One aspect is the issue of fairness or

equality and secondly the legislation as it stands.

2.3.2 Fairness - equality

The first issue concerns fairness versus equality. Some

inspectors are choosing not to issue citations to small

workplaces with ethnic owners because of the lack of

specific rules in the legislation. Therefore an added

perceived injustice in the workplace becomes apparent

( Personal information). Inspectors often interpret ‘to

allocate to each their own’44 as separate judgement between

small and big business therefore resulting in unequal

treatment from employer to employer. Justification for

such an approach could be found from an argument that

there are occasions when civil disobedience is right

(Rawls 1976 Ch. 6) while the counter argument may be

presented by Dworkin’s ‘doctrine of political

responsibility’45 (Dworkin cited Freeman 1994:1312). The

argument is fundamental in that it relates to Austin’s

argument of ‘law is a matter of historical decisions by

people in positions of political power’ and Hart’s rule of

44 See Antony Flew, A Dictionary of Philosophy (London: Pan Books, 1979: 188). a concept defined by suum cuique tribuere - ‘give to each his or her won’.

45 Ronald Dworkin’s Taking Rights Seriously (Cambridge, MA: Harvard University Press. 1977) discusses principles and policies and his doctrine condemns decisions that seem right in isolation. The principle of responsibility can only allow a difference if a decision is within some general politicaltheory.

recognition (Dworkin 1986: 34)46. Law is true when people

continue to accept it.

A common position amongst inspectors is that they do not

accept the legislation as fair and simply identify

measures taken as those above as being justified. This is

because firstly, they have informed their own management

over the past years; secondly, they have had input in

writing to the legislative review in 1993/94; and thirdly,

in spite of these efforts, nothing has been achieved to

remedy the perceived and often notified unfairness in the

legislation (Personal information). This is very much in

agreement with Galligan’s view (1990: 5) that ‘principles,

including ideas of fairness, both in substance and

procedure, and non-discrimination, may be generated’ under

such circumstances.

From many discussions with inspectors during the past

months, it has also become clear that frustration is

abundant and that this might be caused by those of

unfulfilled expectations to the legislative review process

and its perceived ability to create the required change.

Many inspectors are of the opinion that the viewpoint of

small business was not heard and therefore the new

legislation (1995 Act) is not a fair piece of legislation

to the majority for Queensland business. Another example

of the conflict between some inspectors and the46 See Ronald Dworkin, Law’s Empire (London: Fontana Press, 1986)34. Dworkin argues Austin’s proposition ‘that the speed limit in California is 55 is true just because the legislators who enacted that rule happen to be in controlthere; for Hart it is true because the people of California have accepted,and continued to accept. . .national and state constitutions’.

legislation relates to section 80 (1) of the Workplace

Health and Safety Act 1995 which states:

‘An employer must display in a conspicuous position at a workplace a noticein the approved form giving information about provisions under this divisionabout workplace health and safety representatives.Maximum penalty - 10 penalty units.’

A few inspectors enforce this section but the majority do

not; they circumvent it on grounds of their beliefs that

this section has political motives that are more than

protective (Personal information). Apart from this last

example many of the inspectors’ points of view are not

inconsistent with John Rawls ‘difference principle’ which

mainly states that actions taken should establish a norm

for those least well-off, in our case small business

(Rawls 1976). In this instance there is here a range of

matters for discretion47.

2.3.3 WPH&S legislation & ethics

Inspectors have raised a criticism of contemporary ‘risk’

legislation and found it to be a type of a ‘reversed’

utilitarianism, where the few get the most benefits, and

the most (workers) get little benefit; it could be seen as

cost-benefit economics favouring big business; or need and

just deserts are distributed with no heed to justice. The

inspectors understand very well the issues from the point

of view of those who work at small workplaces, and

47 See D. J Galligan, Discretionary Powers (Oxford: Clarendon Press, 1990)1, where he quotes H.L.A. Hart ‘that vagaries of language, the diversity of circumstances, and the indeterminacy of official purpose are considerations which guarantee discretion some continuing place in legalorder [and administration] and make its elimination an impossible dream.

inspectors deal with these issues on a daily basis with

seemingly little legislative help. Consequently, several

ethical questions center on the growing discontent amongst

inspectors and the workers, especially at small

workplaces48; and of the perceived and real inability of

the legislation to help implementation of control of risks

at workplaces (Information form Legislative Review 1993

and Personal Information).

Questions relating to potential risks are not perceived by

owners/workers but are pitted against them prompted by

development of safety guidelines from scientists engaged

in research eg exposure guidelines to hazardous

substances. Harrison (1989:195) suggested ‘ ideas of

prevention were the accepted wisdom of experts and state

officials alike’. This suggests the move from ‘factory’

to ‘risk’ legislation was achieved by experts, big

business and state officials for possibly each their own

reasons. Carson (1985) has brought this argument into

another focus by suggesting ‘factory’ legislation was a

process to conventionalise factory crime by taking abuses

of employers outside the criminal justice system. Which

raises the question of where does ‘risk’ legislation fit

and we could propose - Is “Risk” legislation therefore

brought about by business for their own reason namely48 See Claire Mayhew, Graeme Gibson and Leanne Coomer, An Evaluation of the Impact

of Robens Style Legislation on the Decision-Making of Builders with less than Five Employees, (Griffith University January 1995, Unpublished report on a Grant from Worksafe Australia). They state (page 151) that’ builders interviewed were generally unaware of the need to undertake risk assessments at each site, most lacked accurate information about codes of practice and regulations, and a high level of misinterpretation and erroneous information was found throughout the industry.

market determined protection? For example statements like

‘legislation clearly envisaged the importance of

information to all workplace parties concerned with risk

management’ (Hodges 1994: 38)49 may suggest this argument.

Peter Bernstein (1996: 47) answers the question with

another question ‘Have we replaced old-world

superstitions with a dangerous reliance on numbers? and he

suggests that risk management has become a new religion50.

Risk assessment is such an important element of modern

legislation but it is not mentioned in the objectives or

elsewhere in the Act which makes it more difficult to

comprehend for small business. There are, however,

several codes of practice making use of risk assessment51.

The 1989 and the 1995 Acts both have objectives set out to

identify the spirit in which they are created; both in

section 7. There are differences between the objectives

of these acts. The 1989 Act was more active in specifying

49 See Ian W Saunders , ‘Managing Quality and Risk’ ( Brisbane: Risk Management in the 1990’s : Approaches from International Strategic Management, quality Perspectives and Workplace Health and Safety) 81-87. See also Ian Glendon, Risk Management in the 1990’s, page 25 same conference paper collection, where he refers to risk assessment as a legal requirement in UK ‘in regulation 3 of the Managementof Health and Safety at Work Regulations 1992’.

50 For further debate on risk management, see Peter Bernstein, The New Religion of Risk Management, Harvard Business Review, vol. 74 (2) March April 1996. 47-51, where he quotes G.K. Chesterton “ The real trouble with this world of ours is not that it is an unreasonable world, not [that] it is a reasonable one. The commonest kind of trouble is that it is nearly reasonable, but not quite. Life is not an illogicality; yet it is a trap for logicians. It looks justa little more mathematical and regular than it is; its exactitude is obvious, but its inexactitude is hidden; its wildness lies in wait”.

51 See Code of Practice for Plant (89-92), Code of Practice for the Selection, Provision and Use of Personal Protective Equipment (58-87), Manual Handling (Building) Code of Practice 1991 has an excellent Risk identification checklist (90-95). All these codes are Queensland codes from Government Printer : Brisbane.

promotion, provision and protection of people52; while 1995

Act appears more ‘outcome based’ by establishing certain

processes, which were in place already under the 1989 Act

but it sets overall objectives of ‘freedom from disease or

injury and risk of disease or injury’53. Why these

objective are important should be seen in connection with

causes of business noncompliance as identified by John

Braithwaite (1992: 3). He states ‘lack of commitment of

business to the objectives that lie behind the law or to

the rules chosen to secure those objectives, or both’.

These matters only add to the inspector’s dilemmas. We

will now direct the discussion towards ethical competence

and duties of the inspector by referring to a Hobbesian

view that ‘if obedience to just laws will bring about a

just and moral state then legislation in search of due

diligence and duty of care may do well to provide for the

use of incentives (both carrots and sticks) to aid

voluntary compliance’ (Eddington 1994: 11).

Therefore ethical competence lies in a domain in which

inspectors must be specially equipped for and possibly

trained - technically, legally and morally. ‘Renegades’

are well aware of the limits of inspectors’ powers and

will seek to utilise these limitations to their own

advantage, and they may even utilise the same risk52 See Section 7 : Objects of the Workplace Health and Safety Act 1989, for example section 7(d) ‘to assist in securing safe and hygienic work environments; section 7(f) to provide for a work environment, for persons performing work, that is adapted to their physiological and psychological needs.

53 See Section 7 : Objects of Workplace Health and Safety Act 1995, for example 7(f)promoting community awareness about workplace health and safety; 7(g)imposing workplace health and safety obligations on certain persons who may affect the health and safety of others by their acts or omissions.

management method to seek probabilities of avoiding the

aims of the inspectors. Consequently it is apparent that

duties of inspectors have a duality by applying a fair,

just and morally sound interpretation of legislation to

all citizens; and by fostering a sense of duty and

cooperation amongst employers and employees, while still

remaining the enforcer. Inspectors are expected to

provide consultation and education as well as improvement

and prohibition notices; and are expected to be intrepid

enforcers with prosecution actions. In other words walk

softly but carry a big stick, however, wherever possible,

use persuasion rather than threat54,.

2.3.4 Legislative comparisons

The dilemmas of duality arise out of legislation that is

not always consistent, which consequently may be the

reason for inspectors’ work attitudes swinging from pride

to utter frustration (Personal Information). A major

cause for such swings could be credited to Queensland’s

health and safety legislation moving from prescription to

self-regulation. Many commentators, from both an economic

and ‘rule avoiding’ point of view agreed to self-

regulation being a splendid move55, while other

54 See John Braithwaite, Improving Regulatory Compliance: Strategies and Practical Applications in OECD Countries (Paris: OECD Headquarters, 1992)19, ‘treat human beings like knaves and they will tend to be knaves’. Braithwaite argues for persuasion as a psychological researched best way to compliance that is chosen voluntary, is more robust and enduring than coerced compliance. Herefers to 50 studies examining extrinsic incentives and their effect.

55 See Ayres, Ian and Braithwaite, John, Responsive Regulation: Transcending the Deregulation Debate, (Oxford: OUP, 1992 Ch. 2); and John Matthew, Health and Safety at Work (Sydney: Pluto Press, 1988, Ch. 2, 3 and 29); Joan M. Eakin, Occupational Health and Safety in Small Business: A Sociological Perspective. (Toronto: University of Toronto, September 1988).

commentators regarded it as grossly unfair, especially to

small business (Information from Legislative Review). The

legislation aims to give equal freedom and economy

concurrently to all business, big and small. The 1989 Act

and the 1995 Act are statutory legislation which is close

to becoming common law; so close that tort law has almost

been “statutorised”. WPH&S inspectors and commentators of

this legislation accept that common law is geared to deal

with negligence after facts. They also accept that WPH&S

legislation should be preventive and proactive, and

prescribe for example more legalised management systems

for occupational health and safety as a minimum

requirement. The 1989 model specified duty of care

principles within the objects of the Act (section 7), only

avoiding duty of care principles being absolute by clauses

incorporating practicability. This practicability

inherently considers time, money and trouble; and it was

specified in the act. The 1995 model does not have such

practicability considerations; emphasis has yet again

changed, this time to obligations with certain defences

(section 37). The significance of this should be seen in

relation to whom the law is aspiring to protect, namely

the business situation in Queensland. However, this

business has above 85 % of all registered business

employing six or less employees, which is identified as

small business (Beddall Report 1990). Small business

needs guidance in areas of health and safety because they

do not operate well by merely having principles to rely on

and to interpret (Eakin 1992: 691). Big business can

afford to hire experts for their different functional

areas eg health and safety, finance, accounting, which

small and very small business very seldom can afford.

Their hired expertise in most cases is limited to

accounting and possibly finance (Lamm 1995: 416).

The unfairness, this type of legislation creates, is

observed by the inspectors in their daily work and is

indeed an issue that constantly adds to the inspectors

levels of frustration (Lamm 1995: 415). The frustration

is founded in the issues of unfairness in how legislation

deals with for example a multinational company and a fish

shop. The contention is that a multinational company

hires professionals who see part of their issues as

‘raison d’etre’ and therefore as salaried professionals

take these issues seriously. By contrast the issues are

of marginal concern to small business owners (Eakin 1992:

701). However, the act demands equally the same response

for the same risk. Well, it could be argued that the

ethical dilemmas of inspectors then, if they are not

[mis]management issues, then they must at least be

classified as jurisprudential or legal formulation issues.

However, it is the author’s argument that the problem

still lies within the realm of administrative and public

sector ethics and as such must be argued and solved in a

process for such matters. How an inspector can be helped

in these circumstances is discussed via the argument on

professionalism.

2.4 WPH&S inspectors and Professionalism

2.4.1 Employment

What differentiates a public servant from other employees?

Mary Reid (1995) raised the question why would Australian

Government employees not operate under the same industrial

relations and employment arrangements as the rest of the

Australian work force? (Reid 1995: 43). Taken on face

value this would mean that any privately owned service

operation would be like a government department or vice

versa. If we relate this question to Queensland WPH&S

inspectors this would mean less protection of information

given by clients, less transparency in business

transactions etc. but theoretically it could be applied.

Issues such as contracts would also have to be dealt with.

Of course a view could be taken that public servants

should have the same employment arrangements as employees

in private industry. However, also influencing this

argument is the type of work contracts, eg secrecy clauses

and FOI that WPH&S inspectors are working under. The

public interest is to have a uniform and homogeneous

public service that conform to set standards or patterns;

a service that can act and make decisions according to

these standards. The risk of this demand on the other

hand may be a wrong decision in areas where no rule covers

the issue at hand. On the issue of who the WPH&S

inspector is, it would be necessary to once again pose the

question so as to cover the nature of an inspector’s

characteristics and selection of inspectors.

2.4.2 Employment criteria

Selection of inspectors has also changed over the last

three decades. For example an inspector was hired under

the Regulations56 to the Inspection of Scaffolding Acts 1915 to 1951 (

section 27 :1951) according to:

‘Every candidate. . . shall. . .comply with the following conditions: (a) Produce satisfactory evidence of his respectability of character. . ‘;

or in accordance with the Machinery Inspection & Safety Regulations

1972 (Part II section 7):

Appointment to inspector prescribes that the candidateshall: (b) produce satisfactory evidence of his general goodcharacter’.

By contrast, the ‘prescribed’ candidate to a 1996

inspector must understand position specifications that

outline work environment and duties; the inspector has as

a minimum qualification an Associate Diploma with a trade

certificate. However, values or ethics do not enter the

process, and there is no mention of ‘a character

reference’. Experience, skills and a certain behaviour

were previously a basis for employing an inspector but

56 To identify the various meanings of regulation, regulation with capital Rrefers to a piece of subordinate legislation under an Act, eg Workplace Health and Safety Regulation 1989.

‘job criteria 1996’ depends largely on job descriptions

designed by Divisional staff with a vague conformance with

‘mandatory’ PSMC standards57. These standards are policed

by complaint and not by auditing or other systematic

review processes for accountability. One division in the

Queensland Public service has been operating without

proper implemented PSMC standards for at least the past

two years (Personal Information). There is room for

further confusion amongst inspectors with such

expectations especially with a view to the PSE Act and no

incorporation of ethics into job descriptions.

2.4.3 WPH&S inspector - Occupation?

Consulting Australian Bureau of Statistics (ABS) catalogue

no. 1220.0, we find section 3 outlining enforcement

officers who are in this taxonomy categorised as para-

professionals. How this classification has been devised

is not clear. Mike Collingridge (1995: 65-67) claims that

professional status is one of the hallmarks of this

century for many new occupational groups. He posits that

stages generally utilised in the acquisition of

professionalism are ‘stages or traits including the

development of professional associations, the claim to

possess an esoteric body of knowledge and skills acquired

usually through university training, legal protection

including the right to regulate their own affairs and,

57 See Peter Coldrake, ‘Public Sector Change & Reform: Taking Stock of the Challenges’. In : Keeping Them Honest. Ed. A. Hede; S. Prasser; M. Neylan. (Brisbane: QUP, 1994) 244-260 where he puts importance to the linking of the individuals performance with that of the agency.

finally, the possession of a code of ethics’ (Collingridge

1995:65). Semantically occupation is ‘one’s habitual

employment’ (Macquarie 1981: 1198) whereas a profession is

a ‘vocation requiring knowledge of some department of

learning’ (Macquarie 1981: 1376). However, an occupation

does not often have a code of ethics while most

professions have. Some commentators argue that lawyers

and medical doctors belong to the learned professions in a

practice that has certain duties to clients (Riley 1995:

1). Moreover, Riley (1995: 3) argues that lawyers in

professional conduct in their practice are guided by rules

arranged in five categories which are applicable to

inspectorial practice.

These categories are not unlike the operational aspects of

the WPH&S inspector with exception to possibly the legal

component of category 1, but this category could be

substituted by an element of inspectorial practices.

Practices of the inspector taken to mean a social activity

involving inspectors and employers resulting in good and

safe workplaces. Prosecution is only secondary to this

primary goal, a point discussed earlier in self-

regulation. The practice of the inspector presupposes a

network of underlying understandings coupled with a

shared set of rituals and a ‘modicum of mutual trust and

some underlying system of evaluation’ (Solomon 1992: 119).

Therefore John Uhr’s (1994) discussion of the ‘ethics of

agency’ has relevance to the WPH&S inspectors and their

behaviour. Collingridge has argued, ‘to practice

ethically is one of the central claims that professions

make for distinguishing their work from that of other

occupations’ and for high degrees of autonomy in decision

making (Collingridge 1995:69). The WPH&S inspectors job

indeed constitutes a specialised body of knowledge,

commitment to the common good through prevention, and a

high social status and as such becomes a profession

(Pollock-Byrne 1989: 107). Scientists, engineers,

lawyers, physicians, journalists and others find ethical

problems involved in the practice of their professions and

therefore some of these occupational groups have formal

codes of ethics. These codes set forth principles of

conduct deemed appropriate to the special objects and

responsibilities of each profession.

2.4.4 Professional comparisons

Indeed changes have been observed within medical and legal

professions of late. A greater degree of specialisation

has resulted eg neurosurgeons, sports surgeons,

administrative barristers and corporate lawyers. Issues

not previously contemplated are developing rapidly in

society in general and for the WPH&S inspectors these

developments result in greater specialisation. Competing

loyalties, individual conscience, respect for law,

religion, politics and cultural aspects are areas of

debate with concerns of propriety and limits to which the

public service as a profession must contend and deal with.

Ross (1995: 36-44) identifies the following

characteristics of professionalism: based on a specialised

theoretical knowledge provided with training and

education; its members tested for competency; having an

organisational basis; to have an ethical code of conduct

and provide altruistic service. The traits theory has

been strongly debated and has been counter argued by a

theory of resources of power which gives little

possibility for subjective experiences and influences of a

social nature by the members of the profession. However,

both the traits and resources of power theories would

argue for WPH&S as being a profession. The counter

argument to this is identified by several authors cited in

Ross (1995) and the main point is that the public servant

does not control but is controlled by others eg

politicians. The WPH&S inspectors for example had more

power and control in the past by virtue of their being an

important part of small communities, the expert within the

field of machinery or construction; nearly always a

Justice of the Peace (JP) and very active in the community

within commerce like APEX or Lions clubs. Today the

inspector has become another public servant but with

discretionary powers in a self-regulatory regime.

Therefore when comparing specific ethics of the WPH&S

inspector to a doctor we find a justification for

professionalism. A doctor must diagnose a patient on

information mostly given by the patient when first they

meet, hence a trust and value judgement is the basis for

the decision. The inspector must diagnose from

information given by the employer or employee on the

initial meeting. The inspector can also examine the

issues before treatment. However, a trust relationship

built like the case of the doctor is not always the

preferred option for a regulatory officer. A certain

amount of trust is acceptable but how much? This creates

a trust in the inspector from the public which in turn

could influence the inspector towards a higher level of

honesty. From this position the inspector is able to

perform investigations and from the emotive experience,

which honesty and trust have made possible, a greater

amount of information could flow. Why this argument is

sound lies in the justification of employment of the

inspector, namely prevention of injury and disease to

people at work, and therefore a code of conduct should be

made for inspectors and should include all enforcement

officers, except police. From these arguments we can

arrive at the conclusion that a partly separate regime for

all public service inspectors setting them aside from

other public servants would be desirable. As we have seen

the PSE Act allows for any such possibility by setting out

a section for ‘agency specific codes’ which could be cross

agency for specific groups like ‘officers administering a

self-regulatory regime’.

2.4.5 Summary

This chapter has identified, by historical aspects, a

trend away from compliance towards self-regulation. This

trend was not just a shift from one consensus to another

but a shift to obtain social acceptance of a different

manner to deal with workplace issues. Also identified was

a need for inspectors to have a degree of formal process

by a special code of conduct founded on professionalism.

The code of conduct should respond to the controversies

and suspicions raised in this chapter by attempting to

make inspectors behave in a consistent and correct way;

professionalism of inspectors in their daily operation;

create a trust to public service and its ability to act in

a fair manner. The code of conduct should not, however,

stand alone but should be a part of an ethical operational

system to form the basis for inspectorial behaviour. This

system includes the PSE Act, inspectorial code of conduct,

ethical circles, ethics education and training and ethics

committees as suggested earlier. The manner of how we

shall achieve the system is discussed in Chapter Three.

CHAPTER 3 - Ethics Maturity: Standards Development

3.1 WPH&S Inspectors and Societal Expectations

3.1.1 Inspectors trained in ethics

In this chapter an aggregation of previous arguments is

attempted and an attempt is made to outline solutions to

the problems identified in those arguments. It is

concluded that WPH&S inspectors have reasons to be a

professional body; they have reasons for special

considerations to aid them in ethical situations in their

working environment as do lawyers, social workers and

other professionals. This specialisation as in other

professions, has a great impact upon WPH&S inspectors. To

deal with this and to make progress, some solutions are

now presented. Firstly, are we solely to rely on

community education concerning ethics for the WPH&S

inspectors? Do we simply accept that people in Queensland

always know what is the right or the wrong way to act as a

WPH&S inspector? Or, secondly, are we to seek solutions

from education and training in form of mentoring, class

room exams and/or recurrent education after X amount of

years? Maybe, thirdly, we should use methods that have

been utilised in business management streams, namely

methods of systematic planning and organising which

include system elements like monitoring and auditing to

detect successes or otherwise58.

58 For a discussion on methods for policy and management decisions, see Edith Stokey and Richard Zeckhauser, A Primer for Policy Analysis, (New York: W.W. Norton & Company, 1978), where main points for any analysis is given in

Firstly to the question on training. From the previous

chapters we acknowledge that we should implement a code of

conduct incorporating professionalism for the WPH&S

inspector. Taking heed to Professor Limerick’s

introductory statement to this paper, there is a good

argument for a professional code for WPH&S inspectors59.

One would then, with ease, see why WPH&S inspectors would

require a special place in the Queensland ethics regime.

Underpinning this we must compare the changing community

status of Safety Inspectors; a change from statements such

as minister Power’s60 that alluded to the inspectors simply

following rules to ‘expecting an inspector to play two

conflicting roles’ (Cass 1991: 44). Aside from this we

should not forget that societal perceptions may be as

Whittaker (1995: 19), in his survey from May 1995,

indicates that ‘honesty and ethics ratings’ are down for

the servicing and enforcement professions. Contrary to

this, the traditional image of police or fire departments

getting cats out of trees, may also be the public

expectations of safety inspectors helping out in industry,

especially in small business with difficulties in steel

selection, welding techniques, machinery and construction

or other maintenance problems. When we combine these

images with observations of Queensland as a multicultural

point form (Page 5) as 1) establishing the context, 2) laying out the alternatives, 3) predicting the consequences, 4) valuing the outcomes, and5) making a choice.

59 See footnote first page of thesis - Introduction.60 See Hilless, A. J. , 1974: 73, Power’s, Queensland Minister for Mines andImmigration in 1951, that “ to the ability and fairmindedness of the ChiefInspector and his inspectors in all matters which may be in no doubt”

society with a huge small business sector, one will

appreciate the ethical dilemmas and expectations that

multicultural WPH&S inspectors are experiencing in

performing their public service duties. We have argued

for training and must conclude that this ethics training

was identified and recommended in the EARC Report (1992:

Ch. 8; 9.40) and legislated for in the PSE Act (1994:

s.21) with a specific view to ‘the contents of the

entity’s approved code of conduct’ (PSE Act 1994: s.

21(2a)). Therefore there is no doubt that training must

be carried out. The second question is then how should

this be done?

3.1.2 Solutions to education and training

The environment in which a WPH&S inspector operates is

bounded by legal, political and institutional rules and

policies which in themselves are recipes for uncertainty

but nevertheless have some public expectations. Legally

WPH&S inspectors must act on reasonable orders

(Employment Act section 29) or as Finn (1993: 137) cites

that ‘it is not [an] excuse for an offender to say that he

acted under orders of a superior officer’; Finn even goes

further to point to ‘ what is true of an official’s civil

liability is equally true of her/his criminal liability’.

Naturally if an inspector has acted with reasonableness

and without negligence, the inspector is not liable and

will be supported by his/her department (WPH&S Act 1989

section 130). Politically a public servant [WPH&S

inspector] is ordained to do what they are obliged to do

(Finn 1987; 1993), which in our case is further guided by

the PSE Act. By pointing to a couple of public service

cases one from England and one from Australia, we attempt

to further outline the possible preconceived expectations

of the public. The Clive Ponting61 case concerns whistle-

blowing in the British government in which a ‘prudent’

civil servant judges his minister; ‘my loyalty was to

ministers. . .I realised that Ministers had broken their

side of the bargain’(Ponting cited Uhr 1991b:12), and the

Creighton62 case in which a public servant was found not to

be acting in the interest of his minister and was

subsequently sacked (Jackson 1987: 377; Parker 1993: 93-

115). Finally, institutionally the inspector is bound by

the rules and ethos of office, and is employed under the

WPH&S Act 1995; the inspector has a Public Service

Employment Act, a Public Sector Ethics Act, an Anti-

Discrimination Act; and in addition must comply with PSMC

standards. Also the inspector should have a job

description and must perform tasks which are focused on

outcomes of a rational magnitude. With expectations on

the inspectors as described, how could the ethics be

achieved?

61 See Peter Jay, “Pontius or Ponting: Public Duty and Public Interest in Secrecy and Disclosure”. A suggested framework of ethics and law for public servants. A paper given as the Shell Lecture in Glasgow 22 May 1985. RIPA: London.

62 See Rober Parker, The Administrative Vocation. (Sydney: Hale & Ironmonger, 1993). The Creighton case is concerning neutrality as a moral problem andrelates to events from 1947-57 in Queensland. Vivian Rogers Creighton sawthe minister Thomas Andrew Foley involved in ‘improper practices’ concerning land deals.

3.2 Development of Agency Specific Codes - Codificationor other ways for WPH&S inspector ethics?

Traditionally WPH&S inspectors in Queensland have been

seen to be protecting information given to them by the

public; to be acting in the same publics’ interest; to be

providing effective and efficient service without

consideration to social status of the recipient; and to be

avoiding conflict of interest. These tasks all have

ethical values. The previous mentioned expectations are

in agreement with comments by Kernaghan and Langford

(1990) concerning Canadian public servants. Issues around

such expectations are still seen as being a part of what

should be considered when public service ethics are

discussed. However, there are issues that require

attention for example, as previously mentioned, the

emphasis on multiculturaism and small business. Kernaghan

posits that the best ethical outcome can be achieved by

way of ‘a combination of codes, exemplary role models and

staff development’ which to a degree is what Sampford

alluded to (Sampford 1994). Such a triadic approach to

ethical behaviour would be most likely to have lasting and

beneficial effects (Kernaghan cited Chapman 1993: 15-29).

Elsewhere Kernaghan has stated, when relating to

management of public service ethics, ‘the fact that the

new values are integral and interdependent elements of a

coherent model of public organisation enhances their

strength and likely staying power’(1994: 629). The new

values he is referring to are those of service,

innovation, teamwork and quality. These values are not

unlike an abbreviation of values as proposed by Sinclair

(1989: 383); values which managerialism as a culture

should embody. She suggests’ administrative reform,

mission statements, corporate planning ‘top-down centrally

driven’, policy process to be objective and apolitical’.

She also suggests leadership change where ‘intuitive’

styles were substituted with a ‘professional confident

approach’ (384). Sinclair establishes that values and

operating principles often can not be fulfilled

concurrently, and that ‘cultural uniformity may be

extremely difficult to achieve in the public sector

‘(386). We should have no difficulty in the latter

respect when concentrating only on the WPH&S inspectors,

because a small and separate coherent unit should conform

well to a cultural uniformity. Van Maanen and Barley

(cited Sinclair 1989: 392) suggest that ‘occupational

communities and their subcultures in organisations, can

bring powerful resources of commitment and dedication to

excellence and control’.

The latter references are from overseas but there is no

good reason why they should not be successfully adopted

for Queensland. Kernaghan also suggests that the argued

approach would be more successful than mere codes

(Kernaghan 1994:630). The literature is plentiful on

codes, their use and misuse; and codes of conduct have

more often than not been unsuccessful in achieving their

desired outcome. Of course this will be the biggest

argument for a code of conduct for WPH&S inspectors. The

response of a cynic may well be to state that whereas the

present code of conduct for public servants in Queensland

was implemented in 1988 and is adequate; the knowledge of

its content and use remains limited amongst public

servants (Personal Information). However, we posit that

due to the generality of that code and its means of

implementation, reasons can be found for its very limited

success. So when considerting Kernaghan’s suggestion we

should ensure a better success by supporting the

suggestion by ‘sunshine laws’ and ‘decentralisation of

decision making’ in government agencies (Chapman 1993:

27). In doing so the relevancy would be maintained by a

review within a timeframe for example seven years. The

decentralisation of decision making could be conducted by

overseeing the ethical behaviour by a peer croup assisted

by an external panel of experts for example from a

university. However, the argument as put by Kernaghan is

insufficient and as literature indicates, codes combined

with education and role models are not a new approach

(Coombs 1976; Preston 1994).

Finally, when considering WPH&S inspectors and agency

specific codes another useful process could and should be

annexed; we are particularly referring here to a process

as suggested by McDonald (1992: 18) namely that of the

four C’s: contact, collaboration, consultation and

communication. This process even though it was related to

ethics research in Canada could be applied to ethics

education of WPH&S inspectors. The usefulness to our case

is seen in McDonald’s argument where he states that

contact when created in an open atmosphere leads to

collaboration with other colleagues, and then to

consultation with other groups which leads to effective

communication. When implementing these methods, which

certainly give importance to ethical and competent

employees, we should not forget that personal commitment

is not a stand alone item. The organisation must be

involved at all levels and this should come about by

ethics education, organisational guidelines with

supervisors’ support for ethics and rules for punishment

when things have run off the tracks (Bruce 1994: 251).

3.3 How can an ethical framework be achieved?

3.3.1 Developing professional virtue

As suggested earlier, the best starting point for this

ethics education for WPH&S inspectors is an ethics of

agency. Uhr (1994: 169-178) categorises public sector

ethics into ‘a typology’ of front-ender, middle-manager

and tail-ender ethics. His primary focus is upon the

‘ethics of justification, preparing officials for forms of

conduct which are capable of withstanding public exposure’

and an ability to act with responsibility (Uhr 1994:170).

Tail-enders ethics, namely the ethics of agency, has a

training approach ‘ through an accountability focus on the

end-game of justification of office’ (Uhr 1994: 169).

Implementation of this ethics of agency is best approached

by the workshop method (Kernaghan and Mancino 1991: 184).

The workshops should ‘strive to bring about a regular and

informed dialogue within the public service [sic

inspectorate]’ (185) and the process should follow an

explanation of objectives, with advanced reading that

reassures any reluctance to full participation. Moreover,

confidentiality and frankness should be emphasised without

bringing dominant ethics to play and without letting

philosophy in the back door, which are points raised by

Drucker (cited Uhr 1994: 172) and by Uhr (1994: 173).

This is achieved with a variety of education and teaching

tools.

3.3.2 Systematic approach

A practical approach for taking responsibility and

managing ethics for a public servant is advocated by

scientific research and also by modern management

techniques: - simplify the task - break the task into

smaller components. Peter Drucker (1968: 445) suggests

‘to convert into system and method what has been done

before by hunch or intuition, to reduce to principles and

concepts what has been left to experience and ‘rule of

thumb’; to substitute a logical and cohesive pattern for

the chance of recognition of elements’63. This would

result in the establishment of a process leading to a

63 For a more extended consideration on this topic, see Adelle Evans, Ethics; Professional Year Programme-1995. The Institute of Chartered Accountants in Australia. This study programme has in the section “Decision models” outlined firstly the Seven steps of the American Accounting Association Model, secondly The Laura Nash Model, and finally Mary Guy’s -Values, rules and decision model, pp. 23-26. These models are simple and systematic in their approach.

culture in which WPH&S inspectors can coordinate their

tasks and performances; a practical ethical regime to

engender ethical maturity for competent, skilled and

decision making inspectors.

Progression to a more cohesive ethical operation by WPH&S

inspectors requires a benchmark to be set or at least a

primary requirement is for a peg to be rammed into the

inspectorial ethical ground. An ethical ground where ‘the

shared values and expectations have been articulated’

(Denhardt 1991:28). We can then, assuming this to be

achieved, progress our method to further develop,

implement and monitor within agreed intervals of

evaluation. This approach may appear very systematic,

however, a similar approach is utilised in the science of

psychology, anthropology, business management and also

within the professions of medicine and law where the

method is utilised as an objective manner for achieving

those professions’ goals. Our goal is the establishment

of an ethical regime for WPH&S inspectors, even if this

should be from a systematic approach.

Systematic methods can be chosen from principles as set

out in Australian Standards like ISO 9000 on quality

assurance, in AS 4183 on value management and AS 4360 on

risk management. These standards are business management

standards and are arguably designed with products in mind,

so their usefulness for ethical aspects within a branch of

the public service might be seen as contentious. However,

firstly, ISO 9000 is meant for achieving ‘specified

requirements for products in terms of an established

design or specification’ (ISO 9002 1994: 1). So one would

need to know what is intended by focusing on process

management for within this process certain elements must

be covered. One shortfall, however, is that the process

does not take people issues into account, except training,

which is an element to cover quality aspects. AS 4183 is

another “economic” dependant standard that has arisen from

an engineering background. Its main principle is money

focused and it has a sequential and multi point approach.

AS 4360 is a standard on risk management which is also

sequential; it is not a specific engineering standard and

can be utilised in many spheres of science. It is a

generic guide to the ‘establishment and implementation of

the risk management process involving the identification,

analysis, assessment, treatment and ongoing monitoring of

risk’ (AS/NZS 4360 1995: p. 4). The latter standard would

be seen to be the major concept setter for our purpose

with support from the other two standards mentioned.

However, problems can be anticipated by taking systematic

approaches to ethics. Firstly, these systems are not easy

to implement even for their intended purposes. Secondly,

as stated elsewhere, progressing a code of conduct for

WPH&S inspectors must encompass an understanding of social

values, methods of communication and common interests of

not only the diverse inspectorate, but also the diverse

clientele at workplaces. Thirdly, a majority of the

workplaces as has previously been pointed out are small

business where the owners are often the managers

participating in the daily operation. Small business

typically employs one to five people. Ethnicity and small

business therefore become elements or issues of common

ground. Rabin (1994: 56) identified the problem that when

‘marketing in a multicultural society, it helps to

understand the common ground that racial and ethnic groups

share without losing sight of their differences’.

3.3.3 Recommendations on code formulation

This paper has argued for a code of conduct for WPH&S

inspectors to be produced; a code that is clear and simple

without becoming general and generic. The code must give

the inspectors a certain autonomy and should not be

punitive other than to the effects that currently exist in

PSMC standards. From inspectors and their management a

set of values would be developed to form the basis for the

code. These values would have to be compatible with the

PSE Act’s obligations. The code would protect the

inspectors by offering guidance on how to act

appropriately to what is considered to be ethical for a

professional inspector. Professional standards for

inspectors would be separate from their private interests

and be described by positive standards. To help

inspectors there would be an ethical contact person

specially trained who could provide ethical help during

work hours. This person would not be attached to the

Ethics Office but should preferably be a WPH&S inspector.

In addition ethical circles would be established amongst

the inspectors and management, as well as on department

level. This point could be expanded to encompass other

regulatory officers. Ethical audits would be carried out,

preferably by persons outside the public service, for

example from University consortiums. These audits should

be conducted annually and carried out by persons briefed

on public service values and expectations. The code could

contain ‘sunset clauses’ which result in a review taking

place every five years. The code would, in broad terms

give : Commitment to clients or customers, commitment to

colleagues, commitment to government, commitment to the

profession and finally commitment to the community at

large. If we are to avoid the code becoming just an end in

itself, these are the key issues for deliberation when the

code of conduct has to be produced. The final chapter

discusses briefly the issues of contention, issues that

can not be resolved and issues for further study.

CHAPTER 4 - Conclusion

4.1 Outlining contentious issues and issues that can notbe resolved

This paper has proposed a route from which a consistent

ethical behaviour for inspectors could be achieved, even

though the suggested route may not readily be followed.

Consequently, to establish a code of conduct would take

some concerted effort from inspectors and their

management. Moreover, acknowledging the difficulties many

public service agencies have had in recent years in

attempting to implement Quality Assurance systems, even

with extended external help, there is much to heed when

embarking on a Inclusive Quality Way to an ethical

inspectorate. Much of this debate may sound like nothing

more than a rehash of old issues debated by advocates of

public service responsibility, aside from more refined

language and more elaborate justifications. But there

seems to be no real threat mounted by ethics and value

scholars to the prevailing economic and business paradigm;

nothing to prescribe a set of public service

responsibilities that are linked to some accepted norm of

the common good.

One major issue in question is the commitment of

management and how this commitment is to be achieved and

sustained. Firstly, however, to pursue such a code, a

strong and durable commitment must be made by senior and

line management of departments; secondly, resources in

terms of monetary and personnel must also be made

available; thirdly, sufficient training and education must

be available on a recurrent basis. Also advice and

expertise should be sought not only from the Ethics Office

but also from University consortiums and from other forms

of academic and private organisations. What should be

avoided however is that the ethical debate like the

multicultural debate ends up being more on policies than

on implementation. There is a fear that the ethical

debate might even be redirected or taken to another sphere

of public service as an issue that can not be resolved.

The debate was great but!.

Naturally there is much work to be initiated to achieve a

successful outcome to these issues, moreover, there may

even be some hurdles to vault just to establish the

ethical benchmarks as required for a ‘peg to be rammed

into the inspectorial ethical ground‘.

4.2 Conclusion and suggestions for further work

This paper has referred to some of the ethical

implications for WPH&S inspectors, but many issues remain

to be considered by scholars and practitioners. It should

be accepted that WPH&S inspectors like any other

professional group, maintain a value system that guides

and provides a rationale for decision making, and that it

is natural that such a value system is important in

influencing the conduct of WPH&S inspectors. It should

also be accepted, as this paper suggests, that WPH&S

inspectors are a subculture amongst other public servants

due to their discretionary work environment, and that

these discretions may even be expanded in the future.

Also accepted should be that there are a multiplicity of

roles for WPH&S inspectors, namely as educators and

enforcers; a multiplicity of roles and a need to juggle

different ethical aspects. However, to guide an entire

agency or department under one code of conduct may, as we

have argued, be too varied an area to cover. This may

only lead to a generic code having little or none of the

desired effect.

One issue for further debate is the public servant and the

relationship to administration and policy. The issue

being again about discretion for WPH&S inspectors and

codes of conduct that are cross-departmental. A second

issue for further debate and more study is the issue of

public interest and common good. Both terms are in need of

more clarification to take the discussion of public

servants and special sections within the public service

into more detail. Also the tension between protection and

self-regulation is a central issue for WPH&S inspectors

and other regulatory officers. Society places high value

on autonomy where rules and guidelines ensure that

individuals have maximum information and extent of their

choices. Self-regulation is the reflection of rules and

codes of practice to ensure restriction of risky

activities without recourse to individual judgement. This

tension is especially obvious when we view the clientele

of the WPH&S inspectors with a view to exposure standards

and work practices including worker knowledge on hazards

to the principle of ‘right to know’. The final issue is

that of professionalism and super specialisation in the

public service which may result in generic inspectors; a

specialisation that will, without doubt increas, and if it

results in this generic type inspectors will demand more

of an inspectorial ethic maturity.

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