The Regulator, Inspectors and Enforcement

This part of the Guide deals with the Regulator and other issues. I’ve left out the stuff on Inspectors, as it is not so relevant; I’ve deliberately excluded material on Enforcement as I think that ‘waving the big stick’ at people is counterporductive.

All “the text” below is from The Guide – please see the Disclaimer and Copyright Statement. I have edited the text to remove some non-essential material.

Role of the Regulator (sections 152-154)

The National Compliance and Enforcement Policy (NCEP) sets out the approach work health and safety regulators take to compliance and enforcement under the WHS Act and Regulations.

Each state, territory and the Commonwealth will continue to have its own regulator to administer the WHS laws in their jurisdiction.

Regulators have a broad range of functions including to:

  • monitor and enforce compliance with the WHS Act and WHS Regulations
  • provide advice and information on work health and safety to duty holders and the community
  • foster a cooperative, consultative relationship between duty holders and the people to whom they owe work health and safety duties, and their representatives
  • promote and support education and training on matters relating to work health and safety
  • engage in, promote and coordinate the sharing of information to achieve the object of the WHS Act, including the sharing of information with other work health and safety regulators
  • conduct and defend legal proceedings under the WHS Act
  • collect, analyse and publish statistics relating to work health and safety, and
  • promote public awareness and discussion of work health and safety matters in the community.

Power of the Regulator to Require Documents and Information (section 155)

The regulator has powers to obtain information by written notice if it reasonably believes a person is capable of giving information, providing documents or giving evidence:

  • in relation to a possible contravention of the WHS Act, or
  • that will assist in monitoring or compliance.

The written notice must be served on the person requiring them to do one or more of the following:

  • provide a signed statement on the required matters within the time and in the manner specified in the notice
  • produce the required documents, or
  • appear before a person appointed by the regulator on a day, and at a time and place specified in the notice (which must be reasonable in the circumstances), and provide the required information and documents. The person may attend with a legal practitioner.

The regulator may only require a person to appear in person after taking all reasonable steps to obtain the required information by other means. It is an offence to refuse or fail to comply with a request without reasonable excuse. However a person may refuse to produce a document or information that is subject to legal professional privilege.

While the regulator may compel answers, self-incriminating answers to questions or information provided cannot be used as evidence against an individual in civil or criminal proceedings, other than proceedings arising out of the false or misleading nature of the answer, information or document.

Now, the bold text in the final sentence is interesting. It’s always better to cooperate with the regulator!

Functions and powers of inspectors (sections 160-162, 171, 172)

Inspectors have the following general functions and powers:”

… I have left out this large section, as it is mostly concerned with workplaces, not design or system safety.

Safety Artisan Instructional Videos cover many of these Topics – follow the ‘WHS Page’ Link, below:

Back to: Model WHS Page | WHS Page | Main Page

Introduction to the WHS Act – Part 2

Hi everyone and welcome to the Safety Artisan where you will find instructional videos like this one with professional, pragmatic and impartial advice which we hope you enjoy. I’m Simon and I’m recording this on the 13th of October 2019. So today we’re going to be talking about the Australian Federal Work Health and Safety Act and call it an unofficial guide or system or design safety practitioners whatever you want to call yourselves because I’m looking at the WHS Act from the point of view of system safety and design safety.

 As opposed to managing the workplace although it does that as well. Few days ago, I recorded a short video version of this and in the short video we looked at the primary duty of care and the duty particularly we look at the duty of designs. And so, we spent some time looking at that and that video is available on the freight on petrol on the safety artisan page at Patreon.com. It’s available at safetyartisan.com and you can watch it on YouTube. So just search for safety artisan on YouTube.

Topics

So, in this video, we’re going to look at much more than that. I say selected topics we’re not going to look at everything in the WHS Act as you can see there are several hundred sections of it. We’ll be here all day. So, what we’re going to look at are things that are relevant to systems safety to design safety. So, we look very briefly at the object of the act, at what it’s trying to achieve. Just one slight of definitions because there’s a lot of exclusions because the Act doesn’t apply to everything in Australia.

 We’re going to look at the Big Three involved. So really the three principles that will help us understand what the act is trying to achieve is:

  • what is reasonably practicable. That phrase that I’ve used several times before.
  • What is the primary duty of care so that sections 18 and 19. And if we jump to
  • Section 27 What are or who are officers and what does due diligence mean in a WHS setting?

So, if I step back one section 22 to 26 you know the duties of various people in the supply chain.  We cover that in the short session. So, go ahead and look at that and then moving on. There are requirements for duty holders to consult cooperate and coordinate and then a brief mention of the function of the regulator. And finally, the WHS Act enables WHS regulations and codes of practice. So we’re just mentioned that so those are the topics we’re going to cover quite a lot to get through. So that’s critical.

Disclaimer

So, first this is a disclaimer from the website from the federal legislation site and it does remind people looking at the site that the information put up there is for the benefit of the public and it’s free of charge.

 So, when you’re looking at this stuff you need to look at the relevance of the material for your purposes. OK, I’m looking at the Web site it is not a substitute for getting legal or appropriate professional advice relevant to your particular circumstances. So quick disclaimer there. This is just a way a website with general advice I think we’ll get we’ll get them and hence this video is only as good as the content that’s being present okay.

The Object of the Act

So, the object of the act then as you can say I’m quoting from it because I’m using quotation marks, so the main object of the act is to provide a balanced and nationally consistent framework for the health and safety of workers and workplaces.

 And that’s important in Australia because Australia is a federated state. So, we’ve got states and territories and we’ve got the federal government or the Commonwealth as it’s usually known and the laws all those different bodies do not always line up. In fact, sometimes it seems like the state and territories delight in doing things that are different from each other and different from the Commonwealth. And that’s not particularly helpful if you’re trying to you know operate in Australia as a corporation or you know you’re trying to do something big and trying to invest in the country.

 So, the WHS act of a model WHS Act was introduced to try and harmonize all this stuff. And you’ll see some more about that on the website. By the way and I’ve missed out on some objectives. As you can see, I’m not doing one subset B to H go to have a look at it online. But then in Section 2 The reminder is the principle of giving the highest level of protection against harm to workers and other persons as is reasonably practicable. Wonderful phrase again which will come back to okay.

Definitions

 Now there are lots of definitions in the act. And it’s worth having a look at them particularly if you look at the session that I did on system safety concepts, I was using definitions from the UK standard. Now I did that for a reason because that set of definitions was very well put together. So it was ideal for explaining those fundamental concepts where the concepts in Australia WHS are very different so if you are operating in Australian jurisdiction or you want to sell into an Australian jurisdiction do look at those definitions and actually being aware of what the definitions are will actually save you a lot of hassle in the long run.

 Now because we’re interested systems safety practitioners of introducing complex systems into service. I’ve got the definitions here of plant structure and substance. So basically, plant is any machinery equipment appliance container implement or to any component of those things and anything fitted or connected to any of those things. So, they go going for pretty a pretty broad definition. But bearing in mind we’re talking about plants we’re not talking about consumer goods. We’re not talking about selling toasters or electric toothbrushes to people. OK. There’s other legislation that covers consumer goods.

 Then when it comes to structure again, we’ve got anything that is constructed be fixed or movable temporary or permanent. And it might include things on the ground towers and masks underground pipelines infrastructure tunnels and mining any components or parts thereof. Again, a very broad definition and similarly substance any natural or artificial substance in whatever form it might be. So again, very broad and as you might recall from the previous session a lot of the rules for designers’ manufacturers, importers and suppliers cover plant structure and substances. So hence that’s why I picked just those three definitions out of the dozens there.

Exclusions

 It’s worth mentioning briefly exclusions: what the Act does not apply to. So, first, the Act does not apply to commercial ships basically. So, in Australia, the Federal legislation covering the safety of people in the commercial maritime industry is the Occupational Health and Safety Act (Maritime Industry) 1993, which is usually known as “OSHMI” applies to commercial vessels, so WHS does not. And the second exclusion is if you are operating an offshore petroleum or greenhouse gas storage platform and I think it’s more than three nautical miles offshore.

 But don’t take my word for that if you’re in that business go and check with the regulator NOPSEMA then this act the Offshore Petroleum and Greenhouse Gas Storage Act 2006 applies or OPGGS for short. So, if you’re in the offshore oil industry then you’ve got a separate Commonwealth act plot but those are the only two exceptions. So, where Commonwealth law applies the only things that WHS. does not apply to is commercial ships and offshore platforms I mentioned state and territory vs. Commonwealth. All the states and territories have adopted the model WHS system except Victoria which so far seems to be showing no interest in adopting WHS.

 Thanks, Victoria, for that. That’s very helpful! Western Australia is currently in process of consultation to adopt WHS, but they’ve still got their current OH&S legislation. So just note that there are some exclusions there. OK so if you’re in those jurisdictions then WHS does not apply. And of course, there are many other pieces of legislation and regulation that cover particular kinds of risk in Australia. For example, there’s a separate act called ARPANS that covers ionizing a non-ionizing radiation.

There are many other acts that cover safety and environmental things. Let’s go back one when I’m talking about those specific acts. They only apply to specific things whereas WHS act is a general Act applies to everything except those things that it doesn’t like to write move on.

So Far As is Reasonably Practicable

Okay now here we come to one of these three big ticket items and I’ve got two slides here. So, in this definition of reasonably practicable when it comes to ensuring health and safety reasonably practicable means doing what you are reasonably able to do to achieve the high standards of health safety in place.

 Considering and weighing up all the relevant matters; including, say, the first two we need to think about the likelihood of a hazard or risk. How likely is this thing to occur this potential threat to human health? And what’s the degree of harm that might result from the hazard or risk. So, we’ve got a likelihood and degree of harm or severity. So, if we recall the fundamental definition of risk is that it’s though it’s the factor of those two things taken together. So, this first part we’re thinking about what is the risk?

 And it’s worth mentioning that hazard is not defined in the Act and risk is very loosely defined. So, the act is being deliberately very broad here. We’re not taking a position on or style of approach to describing risks, so to the second part.

Having thought about the risk now we should consider what the person PCBU or officer, whoever it might be, ought reasonably to know about the hazard or risk and the ways of eliminating or minimizing the risks. So, what we should know about the risk and the ways of dealing with it of mitigating it of controlling and then we’ve got some more detail on these ways of controlling the risk.

 We need to think about the availability and suitability of ways to eliminate or minimize the risk. Now I’m probably going to do a separate session on reasonably practicable because there is a whole guidebook on how to do it. So, we’ll go through that and at some stage in the future and go through that step by step about how you determine availability and suitability et cetera. And so, once you get into it it’s not too difficult. You just need to follow the guidelines which are very clear and very well laid out.

 So having done all of those things, after assessing the extent of the risk and the available ways of controlling it the we can then think about the cost associated with those risk controls and whether the cost of those controls is grossly disproportionate to the risk. As we will see later, in the special session, if the cost is grossly disproportionate to the risk reduction then it’s probably not reasonable to do it. So, you don’t necessarily have to do it but we will step back and just look at the whole thing.

So, in a and b we’re looking at the likelihood and severity of the risk so and we’re (quantifying or qualitatively) assessing the risk. We’re thinking about what we could do about it, how available and suitable are those risk controls, and then putting it all together. How much will it cost to implement those risk controls and how reasonably practicable to do so. So what we have here is basically a risk assessment process that leads us to a decision about which controls we need to implement in order to achieve that ‘reasonably practicable’ statement that you see in so many parts of the act and indeed it’s also in the definition itself.

 So, this is how we determine what is reasonably practicable. We follow a risk assessment process. There is a risk assessment Code of Practice, which I will do a separate session on, which gives you a basic minimum risk assessment process to follow that will enable us to decide what is reasonably practicable. Okay, quite a big topic there. And as I say we’ll come back and do a couple more sessions on how to determine reasonably practical, so moving on to the primary duty of care we covered in the short session.

The Primary Duty of Care

 So I’m not really going to go through this again [in detail] but basically our primary duty is to ensure so far as is reasonably practicable the health and safety of workers, whether we’ve engaged them whether we’ve got somebody else to engage them or whether we are influencing or directing people carrying out the work. We have a primary duty of care if we’re doing any of those things. And secondly, it’s worth mentioning that the person conducting a business or undertaking the PCBU must ensure the health and safety of other people. Say, visitors to the workplace are members of the public who happen to be near the workplace.

 And of course, bearing in mind that this law applies to things like trains and aircraft if you have an accident with your moving vehicle or your plant you could put people in danger – in the case of aeroplanes anywhere in Australia and beyond. So, it’s not just about the work, the workers in the workplace. With some systems, you’ve got a very onerous responsibility to protect the public depending on what you’re doing. Now for a little bit more detail that we didn’t have in the short session. When we say we must ensure health and safety we’re talking about the provision and maintenance of a safe work environment or safe plant structures or safe systems of work talking about safe use handling and storage of structures and substances.

 We’re talking about adequate facilities for workers that are talking about the provision of information, training, instruction or supervision. Those workers and finally the health of workers and conditions of the workplace are monitored if need be for the purpose of preventing illness or injury. So, there should be some general monitoring of health and safety-related incidents. And if you’re dealing with certain chemicals or are you intentionally exposing people to certain things you may have to conduct special monitoring looking for contamination or poisoning of those people whatever it may be. So, you’ve got quite a bit of detail there about what it means to carry out the primary duty of care.

 And this is all consistent with the duties that we’ve talked about on designers, manufacturers, importers, and suppliers and for all these things there are codes of practice giving guidance on how to do these things. So, this whole work health and safety system is well thought through, put together, in that the law says you’ve got to do this. And there are regulations and codes of practice giving you more information on how you can fulfil your primary directive and indeed how you must fulfill your primary duty.

 And then finally there’s a slightly unusual part for at the end and this covers the special case where workers need to occupy accommodation under the control of the PCBU in order to get the job done. So you could imagine if you need workers to live somewhere remote and you provided accommodation then there are requirements for the employer to take care of those workers and maintain those premises so that they not exposed to risks.

 That’s a big deal because she might have a remote plant, especially in Australia which is a big place and not very well populated. You might be a long way away from external help. So if you have an emergency on-site you’re going to have to provide everything (not just an emergency you need to do that anyway) but if you’ve got workers living remotely as often happens in Australia you’ve got to look after those workers in a potentially very harsh environment.

And then finally it’s worth mentioning that self-employed persons have got to take care of their own health and safety. Note that a self-employed person is a PCBU, so even self-employed people have a duty of care as a PCBU.

The Three Duties

OK, sections 22 to 26. Take that primary duty of care and elaborate it for designers and manufacturers, importers and suppliers and for those installing constructing or commissioning plant substances and structures. And as we said in the free session all of those roles all of the people BCBS is doing that have three duties they have to ensure safety in a workplace and that includes you know designing and manufacturing the thing and ensuring that it’s safe and meets Australian regulations and obligations.

 We have a duty to test which actually includes doing all the calculations analysis and examination that’s needed to demonstrate safety and then to provide needed information to everybody who might use or come into contact with the system so those three duties apply consistently across the whole supply chain. Now we spent some time talking about that. We’re going to move on OK, so we are halfway through. So, a lot to take in. I hope you’re finding this useful and enjoying this. Let’s move on. Now this is an interesting one.

Officers of the PCBU

Officers of the PCBU have additional duties and an officer of the PCBU might be a company director. That’s explicitly included in the definition. A senior manager somebody who has influence. Offices of the PCBU must exercise due diligence. So basically, the implied relationship is you’ve got a PCBU, you’ve got somebody directing work whether it be design work manufacturing operating a piece of kit whatever it might be. And then there are more senior people who are in turn directing those PCBUs (the officers) so the officers must exercise due diligence to ensure that the PCBUs comply with their duties and obligations.

Sections 2 to 4 cover penalties for offices if they fail. I’m not going to discuss that because as I’ve said elsewhere on the Safety Artisan website, I don’t like threatening people with penalties because I actually think that results in poor behavior, it actually results in people shirking and avoiding their duties rather than embracing them and getting on with it. If you frighten people or tell them what’s going to happen to them, they get it wrong. So, I’m not going to go there. If you’re interested you can look up the penalties for various people, which are clearly laid out. We move on to Section 5.

Due Diligence

 We’re now talking about what is due diligence in the context of health and safety. OK, I need to be precise because the term due diligence appears in other Australian law in various places meaning various things, but here this is the definition of due diligence within the WHS context. So, we’ve got six things to do in order to demonstrate due diligence.

So, officers must acquire and keep up to date with knowledge of work health and safety matters obligations and so forth. Secondly, officers must gain an understanding of the nature of the operations of the piece and risks they control.  So, if you’re a company director you need to know something about what the operation does. You cannot hide behind “I didn’t know” because it’s a legal requirement for you to do it. So that closes off a whole bunch of defenses in court. You can’t plead ignorance because ignorance is, in fact, illegal and you’ve got to have a general understanding of the hazards and risks associated with those operations. So, you don’t necessarily have to be up on all the specifics of everything going on in your organization but whatever it is that your organization does. You should be aware of the general costs and risks associated with that kind of business.

Now, thirdly, we are moving on basically C D E and F refer to appropriate resources and processes, so the officers have got to ensure that PCBUs have available and use appropriate resources and processes in order to control risks. OK so that says you’ve got to provide those resources and processes and there is supervision, or some kind of process or requirement to say, yep, we put in let’s say a safety management system that ensures people do actually use the stuff that they are supposed to use in order to keep themselves safe.

 And that’s very relevant of course because often people don’t like wearing, for example, protective personal protective equipment because it’s uncomfortable or slows you down, so the temptation is to take it off. Moving on to part D we’re still on the appropriate processes; we must have appropriate processes for receiving and considering information on incidents, hazards and risks. So again, we’ve got to have something in place that keeps us up to date with the incidents, hazards and risks in our own plants and maybe similar plants in the industry and, we need a process to respond in a timely way to that information.

 So, if we discover that there is a new incident or hazard that you didn’t previously know about. We need to respond and react to that quickly enough to make a difference to the health and safety of workers. So again as another that sort of works in concert with part B doesn’t it. In part A and B we need to keep up to date on the risks and what’s going on in the business and part A, we need to ensure that the PCBU has processes for compliance with any duty or obligation and follows them again to provide that stuff.

In the system safety world, often the designers will need to provide the raw material that becomes those processes. Or maybe if we’re selling the product, we sell a product with the instruction manual with all the processes that could be required.

And then finally the officers must verify the provision and use of these resources and processes that we’ve been talking about in C D an E. So, we’ve got a simple six-point program that comprises due diligence, but as you can see it’s very to the point and it’s quite demanding. There’s no shirking this stuff or pretending you didn’t know and it’s I suspect it’s designed to hang Company directors who neglect and abuse their workers and, as a result, harm happens to them.

But I mean ultimately let’s face it this is all good common-sense stuff. We should be doing this anyway. And in any kind of high-risk industry we should have a safety management system that does all of this and more. These are only the minimum required for all industries and all undertakings in Australia. OK let’s move away from the big stick. Let’s talk about some sort of cozy, softer stuff.

Consult, Cooperate and Coordinate

If you are a duty holder, if you’ve got a duty of care to people as a PCBU or an officer, you must consult, cooperate and coordinate your activities with all other offices and bases be used.

You have a duty in relation to the same matter. So perhaps you are a supplier of kit and you get information from the designer or the manufacturer with the updates on safety or maybe they inform you of problems with the kit. You must pass that on. Let’s imagine you’re introducing a complex system into service. There are going to be lots of different stakeholders, and you all must work together in order to meet WHS obligations. So, there’s no excuse or trying to ask the buck to other people.

That’s not going to work if you haven’t actively managed the risk, as you are potentially already doing something illegal and again, we won’t talk about the penalties of this. We’re just talking about the good things we’re expected to do. So, we’re trying to keep it positive. And you’ve got a duty to consult with your workers who either carry out work or who are likely to be directly affected by what’s going on and the risks. Now, this is a requirement that procedures in Sections 2 and 3, but of course we should be consulting with our workers because they’ve often got practical knowledge about controlling risks and what is available and suitable to do so, which we will find helpful.

So, consulting workers is not only a duty it’s actually a good way of doing business and doing business efficiently so moving on to section 152.

The Regulator

There are several sections about the regulator, but to my mind, they don’t add much. So, we’re just going to talk about Section 152, which is the functions of a regulator and the regulator has got several functions. So, they give advice and make recommendations to the relevant minister or Commonwealth Minister of the government. They monitor and enforce compliance with the act.

 They provide advice and information to duty holders and the community they collect analyse and publish statistics. They’re supposed to foster a co-operative, consultative relationship in the community to promote and support education and training and to engage in and promote and coordinate the sharing of information. And then finally they’ve got some legal duties with courts and industrial tribunals, and here’s the catch-all, any other function conferred on the regulator by the Act. If we look at the first six the ones that I’ve highlighted there are a number of regulators in Australia and because of the complexity of our federal government system, we’ve got.

 It’s not always clear which regulator you need to deal with and not all regulators are very good at this stuff. I have to say having worked in Europe and America and Australia, for example on Part D. Australian regulators are not very good at analyzing and publishing statistics in general. Usually, if you want high-quality statistics from a regulator, you’re usually better off looking at a European regulator in your industry or an American regulator. The Aussie ones don’t seem to be very good at that, in general.

There are exceptions. NOPSEMA, for example in the offshore world, are particularly good. But then you would expect because of the inherent dangers of offshore operations. Otherwise, I’ve not been that impressed with some of the regulators. The exception to that is Safe Work Australia. So, if you’re looking for advice and information, statistics, education and training and sharing of information then Safe Work Australia is your best bet. Now ironically Safe Work Australia is not a regulator.

Safe Work Australia

They are a statutory authority and they created, in consultation with many others I might say, they created a model WHS Act the model regulations and the Model Codes practice. So, if you go on their website you will find lots of good information on there and indeed I tend to look at that in order to find information to post on safety artisan. So, they’ve got some good WHS information on there. But of course, the wherever you go look at their site you must bear in mind that they are not the regulator of anything or anyone. So, for you’ve also got to go and look at the find the relevant regulator to your business or undertaking and you’ve got to look at what your regulator requires you to do.

 Very often when it comes to looking at guidance your best bet is safe work Australia okay.

Regulations and Codes of Practice

I’ve mentioned regulations and codes of practice. Basically, these sections of the act enable those codes of practice and regulations so the Minister has power to approve Commonwealth codes of practice and similarly state and territory ministers can do the same for their versions of WHS. This is very interesting and we’ll come back to relook at codes of practice in another session. An approved code of practice is admissible in court as evidence, it’s admissible as the test of whether or not a duty or obligation under the WHS Act has been complied with.

 And basically, the implication of this is that you are ignorant of codes of practice at your peril because if something goes wrong then codes of practice are what you will be judged against at minimum. So that’s a very important point to note and we’ll come back to that on another session.

Next, Codes of Practice and then regulation-making powers. For some unknown reason to me, the Governor-General may authorize regulations. I mean that doesn’t really matter. The codes of practice and the regulations are out there, and the regulations are quite extensive.  I think six hundred pages. So, there’s a lot of stuff in there. And again, we’ll do a separate session on WHS regulations soon OK.

That’s All Folks!

I appreciate we’ve covered quite a lot of ground there but of course, you can watch the video as many times as you like and go and look at the Act online. Mentioning that all the information I’ve shown you is pretty much word for word taken from the federal register of legislation and I’m allowed to do that under the terms of the license.

Creative Commons Licence

 And it’s one of those terms I have to tell you that I took this information yesterday on the 12th of October 2019. You should always go to that website to find the latest on Commonwealth legislation (and indeed if you’re working on it state or territory jurisdiction you should go and see the relevant regulator’s legislation on their site). Finally, you will find more information on copyright and attribution at the SafetyArtisan.com website, where I’ve reproduced all of the requirements, which you can check. At the Safety Artisan we’re very pleased to comply with all our obligations.

Now for more on this video, you may have seen it on Patreon on the Safety Artisan page or you may have seen it elsewhere, but it is for sure available Patreon.com/SafetyArtisan. Okay. So, thank you very much for listening and all that remains for me to do is to sign off and say thanks for listening and I look forward to presenting another session to you in a month’s time. Take care.

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Snapshot – What is ‘Safe’?

Why we desire it, why we need it, and what a great opportunity it is for those who can deliver it!

What is Safe?

Instinctively, we want to protect ourselves and our loved ones from harm.

Our global society demands mass-produced goods, transportation, industrial-scale healthcare and utilities, and an ever-expanding range of leisure pursuits – but delivering all of these things come with risk.  How can we run the complex systems that provide these benefits, while protecting workers and the public from harm?

Increasingly, the answer is through a systematic and disciplined approach throughout the life of these huge enterprises.  This brings a massive opportunity for the individuals and organizations who can understand and deliver such benefits in our complex world.

More Safety Artisan Videos are coming soon!

I hope that you enjoyed this video snapshot: What is ‘safe’?

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