This post, Blog: Australian vs. UK Safety Law compares the two approaches, based on my long experience of working on both sides.
Are you a safety professional thinking of emigrating from the UK to Australia? Well, I’ve done it, and here’s my BREXIT special guide! In this 45-minute video, The Safety Artisan looks at the similarities and differences between British and Australian safety practices. This should also help Aussies thinking of heading over to work in the UK and even, dare I say it, to the EU…
Blog: Australian vs. UK Safety Law, Key Points
- Introduction. With BREXIT looming, British and Australian professionals may be thinking of working in each other’s countries;
- Legislation. Our laws, regulations and codes of practice are quite similar;
- Guidance. Try the UK Health and Safety Executive (HSE) or the Safe Work Australia websites – both are excellent;
- Jurisdictions. This is complex in a federated state like Australia, so Brits need to do their homework;
- Regulators. This varies by industry/domain – many are very similar, while some are quite different;
- Cultural Issues: Australia vs. the UK. Brits and Aussies are likely to feel quite comfortable working in each other’s countries; and
- Cultural Issues: Australia vs. the EU. There are some commonalities across the EU, but also dramatic differences.
Blog: Australian vs. UK Safety Law: The Transcript
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Comparing Australian & UK Safety Law: Topics
This is a free full-length show. I think it’s going to be about 30 minutes just to let you know; in those 30 minutes, we’re going to compare the British and Australian approaches to safety. We’re going to talk about the similarities and differences between Australian and British legislation. On the safety guidance that’s available from the various authorities the different jurisdictions in the UK and Australia. Jurisdiction is not really an issue in the UK but certainly is in Australia, so that’s something we really need to go through.
We’ll talk about regulators and the different approaches to regulation. And, finally, some cultural issues. I may mention the dreaded EU. It’s worth talking a little bit about that too because there are still significant links between the EU and the UK on how safety is done which Australians might find helpful.
Now, where’s Michael Bublé when I need him to sing the song? It says it’s looking a lot like Brexit. With the Conservatives winning in the UK they’ve passed the Brexit act. It looks like it’s finally going to happen. Now whether you think that’s a good idea or not I’m not going to debate that, you’ll be pleased to hear – you’re sick of that, I’m sure.
There are going to be some safety professionals and other engineering professionals who were working in the EU. And who maybe won’t be able to do so easily anymore, and there might be some Brits thinking well maybe this is an opportunity. This is a prompt for me to think about moving to Australia and seeing what life is like there. Conversely, there may be Aussies seeking opportunities in the UK because if the flow of professionally qualified Engineers and so forth from the EU countries dries up or slows down then there might be more opportunity for Aussies. Indeed, the UK has been talking about introducing an Australian-style points-based immigration system. And I think we might see a favourable treaty between UK and Australia before too long.
What have I got to contribute here? I spent quite a few years in the UK as a safety engineer and safety consultant and I worked on a lot of international projects. I worked on a lot of UK procurements of American equipment. And I also worked very closely with German, Italian and Spanish colleagues on the Eurofighter Typhoon for thirteen years on and off. And I have quite a bit of experience of working in Germany and some of working with the French. I’ve got I think quite a reasonable view of different approaches to safety and how the UK differs from and is like our European counterparts.
Also, seven years ago I emigrated to Australia. I went through that points-based process, fortunately with a firm to back me up. I made the transition from doing UK-style safety to Australian-style safety.
Let’s get on with it.
There are very many similarities between Australian and UK approaches to safety. Australia has learned a lot from the UK and continues to be very close to the UK in many ways, particularly in our style of law and legislation. But there are differences and I’m mainly going to talk about the differences.
First of all in the UK we’ve had the Health And Safety At Work (HSAW) Act around since 1974. That’s the executive Act that sets up the Health and Safety Executive the HSE as a regulator, gives it teeth and enables further legislation and regulations. Now if I was still in the UK, the next thing we would talk about would be in any discussion about health and safety at work would be the ‘six-pack’.
Now, these were six EU directives that the UK converted into UK regulations, as indeed all EU member states were required to. Incidentally, the UK was very successful in influencing EU safety policy, so it’s a bit ironic that their turning their back on that. What will you find in the six-pack?
First of all, the regulations on management of health and safety at work otherwise known as HSG65 and there’s a lot of good advice in there on how to do risk management that is broadly equivalent, for an Aussie audience, to the Risk Management Code Of Practice: similar things in there that it’s trying to achieve. Then we’ve got the Provision and Use of Work Equipment Regulations or PUWER for short. That says if you provide equipment for workers it’s got to be fit for purpose. Then there are regulations on manual handling, on workplace health safety and welfare, on personal protective equipment at work, and on the health and safety of display screen equipment of the kind that I’m using here and now (I’m sat in my EU-standard computer chair with five legs and certain mandatory adjustable settings).
Now Aussies will be sat there looking at this list thinking it looks awfully familiar. We just package them up slightly differently.
There’s also, it should be said, a separate act called the Control Of Major Accident Hazards or COMAH as it’s known. And that was introduced after the Piper Alpha disaster in the North Sea which claimed 167 lives in a single accident. That covers big installations that could cause a mass-casualty accident. So that’s the UK approach.
Now the Australian approach is much simpler. The Aussies have had time to look at UK legislation, take the essentials from it and boil it down in into its essence quite cleverly. There is a single Work Health and Safety (WHS) Act, which was signed up in 2011 and came into force on the 1st of January 2012. And there are a single set of WHS Regulations that go hand in hand with the Act.
And they cover a wide spectrum of stuff. A lot of the things in the UK that you would see covered in different acts and different regulations are all covered in one place. Not only does it address, as you would expect, the workplace responsibilities of employers and employees etc., but there are also upstream duties on designers and manufacturers and suppliers and importers and so forth. The WHS act pulls all these things together quite elegantly into one.
It’s a very readable act. I have to say it’s one of the few pieces of legislation that I think a non-lawyer can read and make sense of. But you’ve got to read what it says not what you think it says (just a word of caution). The regulations cover Major Hazard Facilities, rather like the COMAH regulations, so they’re all included as well.
It’s worth noting that Australian WHS, unlike the UK, does not differentiate between safety and security. If somebody gets hurt, then it doesn’t matter whether it is an accident or whether it was a malicious act. If it happens to a worker, then WHS covers it. And that puts obligations on employers to look after the security of workers, which is an interesting difference, as the UK law generally does not do that. We’re seeing more prosecutions (I’m told by the lawyers) for harm caused by criminal acts than we are yet seeing for safety accidents.
And that’s the act and regulations. And it’s also worth saying that Australia has a system of Codes Of Practice just as the UK has Approved Codes Of Practice. Now that’s all I’m going to say for now. There are other videos and resources on the website that go into the Act and Regulations and COP. I’m going to do a whole series on all those things, unpacking them one by one.
Let’s think about exceptions for a moment because the way that the UK and Australia do exceptions in their Health and Safety legislation is slightly different. In the UK, the Health and Safety at Work Act explicitly does not apply to ships and aircraft moving under their own power. That’s quite clear. That kind of division does not occur in Australia.
Also, the UK Health and Safety Act does not apply to special forces, or to combat operations by the armed forces, or to the work up to combat operations. Again, those exclusions do not exist in Australia. And then it’s also worth saying there are many other acts enforced by the UK HSE. It’s not just about HSAW, the six-pack and COMAH. There’s a lot of regs and stuff on mining and offshore, etc., you name it. The UK is a complex economy and there are lots of historical laws. Going back up to 100 years. I think the Explosives Act was in 1898, which is still being enforced.
Now Australia has a different approach. They’ve made a clean sweep; taken a very different approach as we’ll see later. And there are only really three explicit exclusions to the Act. It says that WHS doesn’t apply to merchant ships, which are covered by the Occupational Health and Safety (Maritime Industry) Act. So, merchant ships aren’t covered, and WHS doesn’t apply to offshore petroleum installations either. More on that later.
There is a separate act that deals with radiation protection, and that is enforced by the ARPANSA, the Australian Radiation and Nuclear Safety Protection Agency. So, [HSAW and WHS have] a slightly different approach to what is covered and what is not; but very similar in the essentials.
One of those essentials is the determination of how much safety is enough. In the UK the HSE talks about ALARP and in Australia the Act talks about SFARP. This quote here is directly from the UK HSE website. Basically, it says that ALARP and SFARP are essentially the same things. And the core concept, what is reasonably practicable, is what’s defined in the WHS Act.
Now it’s worth mentioning that the HSE say, this because it was the HSE who invented the term ALARP. If you look in UK legislation you will see the term SFARP, and you’ll see other terms like ‘all measures necessary’. There are various phrases in UK laws to say how much is enough, and the HSE said it doesn’t matter what it says in the law, the test we will use is ALARP and it covers all these things. It was always intended to be essentially the same as SFARP.
Now there is some controversy in Australia about that, and some people think that ALARP and SFARP are different. The truth is that in Australia, as in the UK, some people did ALARP badly. They did it wrong. If you do ALARP wrong, it’s not the same as SFARP, it’s different. But if you’re doing ALARP properly it is the same. Now, there are some people who will die in a ditch in order to disagree with me over that but I’m quoting you from the HSE, who invented the term to describe SFARP.
It’s also worth noting that WHS uses the term SFARP, but the offshore regulator, which is the National Offshore Petroleum Safety and Environmental Management Agency (NOPSEMA), they use the term ALARP, because they’ve got a separate act from WHS for enforcing safety on offshore platforms. But again, even though they’re using ALARP, it’s the same as SFARP, if you look at the way that NOPSEMA explain ALARP. They do it properly. And it matches up with SFARP, in fact, that NOPSEMA guidance is very good.
We’ll talk more on regulators, but first a little aside and you’ll see why in a moment. Before we can get to talking about regulators, I need to tell you about where you can get guidance in Australia.
Now in the UK, you’ve got the HSE, who is the regulator and they also provide a lot of guidance. Any safety Engineer in the UK will immediately think of a document called R2P2, which is short for ‘Reducing Risk, Protecting People’. That’s an 80-something page document, in which the HSE explain their rationale for how they will enforce safety law and safety regulations and what they mean by ALARP and so on. There’s also a lot of guidance on their website as well, which is excellent and available under a Creative Commons licence so you can do an awful lot with it.
In Australia, it’s a little bit more complex than that. The WHS act was drafted by Safe Work Australia, which is a statutory agency of the government. It’s not a regulator, but it was the SWA who developed the Model WHS Act, the Model Regulations and the Model Codes Of Practice. (More on that in just a second.) It’s Safe Work Australia that provides a lot of good guidance on their website.
Most Australian regulators will refer you to legislation [i.e. not their own guidance]. We’ve got a bit of an American approach in that respect in Australia, in that you can’t do anything without a lawyer to tell you what you can and can’t do. Well, that’s the way that some government agencies seem to approach it. Sadly, they’ve lost the idea that the regulator is there to bridge the gap and explain safety to ordinary people so they can just get on with it.
Now some regulators in Australia, particularly say the New South Wales state regulator or Victorian state regulator do provide good guidance for use within their jurisdiction. The red flashing lights and the sirens should be going off at this point because we have a jurisdiction issue in Australia, and we’ll come onto that now.
In the UK, it’s reasonably simple. You’ve got the HSE for England and Wales, you’ve got the HSE for Scotland and you’ve got the HSE for Northern Ireland. They are enforcing essentially the same acts and the same regulations, right across the United Kingdom. Now there are differences in law: England and Wales have a legal system; Scotland has a slightly different legal system; then Northern Ireland has peculiarities of its own. But they’re all related. There are historical reasons why the law is different, but, from a safety point of view, all those three regulators do the same thing. And work consistently.
In Australia, it’s a bit different. Australia is a Federated Nation. We have States and Territories as you can see, we’ve got Queensland, New South Wales and Victoria. Within New South Wales we’ve got the ACT, that’s the Australian Capital Territory, and Canberra is the Australian Federal capital.
Most Australians live on that East Coast, down the coast of Queensland NSW and Victoria. Then we’ve got Tasmania, South Australia, the Northern Territory and Western Australia. All those states and territories have and enforce their own Safety Law and Regulations.
On top of that, you’ve got a Federal approach to safety as well. Now, this will be a bit of a puzzle to Brits, but in Australia, we call the national government in Canberra ‘the Commonwealth’. Brits are used to the Commonwealth being 100+ countries that used to belong to the UK, but now they’re a club. But in Australia, the Commonwealth is the national government, the Federal Government.
Let’s talk about regulators, starting at the national level. If you look at the bottom right-hand corner, we have got Comcare. They are the national regulator, who enforce WHS for The Commonwealth of Australia, [Which is] all Federal workplaces, Defence, any land that’s owned by The Commonwealth, and anything where you’ve got a national system. You’ve also got some nationalised or semi-nationalised industries that effectively belong to the Commonwealth, or are set up by national regulations, and they operate to the Commonwealth version of WHS
Then you’ve got the Northern Territory, Tasmania, South Australia, Queensland, New South Wales and the Australian Capital Territory. All those states and territories have their own versions of the Model WHS Act, Regulations and COP. They’re not all identical but they’re pretty much the same. There are slight differences in the way that things are enforced, for example in South Australia there’s a couple of Codes Of Practice that Work Safe SA have said they will not enforce.
These differences don’t change the price of fish. All these regulators have their own jurisdiction, and they’re all doing more or less the same thing as Commonwealth WHS. If you start with the Model WHS Act or the Commonwealth version, then you won’t be far off what’s going on in those states and territories. However, you do have to remember that if you’re doing non-Commonwealth work in those states and territories, you’re going to be under the jurisdiction of the local state or territory regulator.
That’s the easy bit!
Unfortunately, not all states have adopted WHS yet. Western Australia (bottom left-hand corner) they are going to implement WHS but it’s not there yet. Currently, in December 2019 they’re heading towards WHS, but they’re still using their old Occupational Health and Safety (OS&H) Legislation from about 1999, I think.
Victoria has decided that they’re not going to implement WHS. Even though everybody agreed they would [change to WHS], they’re going to stick with their Occupational Health and Safety at work Act, which again I think dates from something like 1999. (These acts are amended and kept up to date.) Victoria has no plans to implement WHS.
You, like me, might be thinking what a ridiculous way this is to organise yourself. We’re a nation of less than twenty-five million people, and we’ve got all this complexity about regulators and how we regulate and yes: it is daft! Model WHS was an attempt to get away from that stupidity. I have to say it’s mostly been successful, and I think we will get there one day, but that’s the situation we’ve got in Australia.
Now, a quick little sample of regulators in the UK and Australia just to compare. I can’t go through them all, because there are a lot. I wanted to illustrate the similarities and differences; there are many similarities for Brits coming to Australia or Aussies going to the UK. You will find a regulatory system that in most part looks and feels familiar.
In the UK, for example, you’ve got the Civil Aviation Authority, who regulate non-military flying, airports etc; in Australia, you’ve got the Civil Aviation Safety Authority, which does almost the same thing. In the UK you’ve got the Air Accident Investigation Branch, who do what their name implies; in Australia, you’ve got the Australian Transportation Safety Bureau, who also investigates air accidents (they do maritime accidents as well). By the way, the ATSB in Australia is somewhat modelled on the American ATSB, with a very similar approach to the way they do business.
Now when we get onto the maritime side, it’s quite different. In the UK, you’ve got the Maritime and Coastguard Agency or MCGA. They regulate Civil Maritime Traffic and health and safety on merchant ships; they also investigate accidents. In Australia, don’t forget we’ve got the ATSB looking at maritime accidents and publishing statistics. We’ve then got the Australian Maritime Safety Authority, the AMSA, who look at the design aspects of safety of ships. (These are all national / Federal / Commonwealth regulators, by the way.) You’ve then got ‘Sea Care’, who look at the OH&S workplace aspects of working on merchant ships.
Then separately [again] we’ve got the National Offshore Petroleum Safety and Environmental Management Authority NOPSEMA, who look after oil rigs and gas rigs, that sit more than three nautical miles offshore. Because if they’re inside three nautical miles then that’s the jurisdiction of the local state or territory.
Indeed, NOPSEMA is evidence of the Federal government trying to get all the states and territories to come together. They succeeded with WHS but with the offshore stuff, the states and territories refused to cooperate with the Commonwealth. (This is a common theme in Australia. The different branches of the government seem to delight in fighting each other rather than serving the Australian public.) The Commonwealth decided Australia could not develop an offshore industry on this basis – it wasn’t going to happen. So, they unilaterally set up NOPSEMA. Bang. Suck on that states and territories.
Let’s look a little bit at culture. Let’s face it, Australians, Brits and Americans in many ways are very similar. We have an Anglo-Saxon approach to things, and Australian and British law is very similar. We also have a similar sense of humour, which is very important when trying to do safety
You’ve got the five eyes countries – Australia, New Zealand, the UK, the US and Canada – who have worked closely together for several decades. There’s a lot of commonality between these English-speaking countries that have a common Anglo-Saxon colonial past.
However, the big difference in Australia is that we are much more heavily influenced by the US than the UK is. You’ll find a lot of a US-style ‘certification against specification’ in Australia in different industries. That’s subtly different to the UK and Australian legal approach, which is based on ‘safety by intent’. This idea is that safety is achieved by keeping people safe [managing risk in the real world], where a contract specification means very little. Are people kept safe? That’s the essential idea behind UK and Australian law. It’s a bit that’s a bit different to the sort of American approach of you know specifications and requirements.
There’s nothing wrong with either approach, they’re just different, but mixing them together does cause confusion. In the UK if you work, as I did for most of my working life, in the aviation industry, it is an international enterprise and it uses a US-style safety-by-specification and certification approach because civil aviation is essentially US-led. (From the 1944 Chicago convention onwards.) It’s important to understand the difference, and there’s a lot more of this US certification influence in Australia.
Comparing Australian & UK Safety Law: Summary
We’ve talked about some different aspects. I can’t go into detail on everything, as I simply don’t know all the details on everything, as I’m not an expert in it all domains. Nobody is. But I hope I’ve given you a useful overview of differences for British engineers wanting to be aware of safety in Australia, and Aussies wanting to go to the UK.
Cultural Issues: UK versus the EU
It’s also worth having, while we’re on the subject, just one slide on the EU, because the UK has been part of the EU for a long time. UK legislation has been heavily influenced by the EU and vice versa. As I said earlier, the UK has been quite successful in influencing EU directives, which the UK that turns into regulations as the other EU nations do. That’s the second bullet point. If you go work in the EU, you should find local laws that implement the EU directives in common with the UK.
The big difference between the UK and the other EU states is the ALARP measure of how much safety is enough, and that is unique to the UK. So much so, that other EU nations took the UK to the European Court of Arbitration saying that ALARP was a sort of anti-competitive variation that shouldn’t be allowed. Now, they lost and ALARP stands in the UK, but just illustrates that there are some critical differences and ALARP is probably the most important one.
Back to the first bullet point. In English, we differentiate between safety and security. Now I’ve mentioned the UK HSAW does so but WHS does not do that (deliberately I guess), whether it’s accidental or harm or malicious harm you’ve got to protect your workers. However, in many European countries, the word for safety and security are the same. If you get to Germany, ‘Sicherheit’ means safety and security. In France it’s ‘securité’ and variations thereof in other romance languages, safety and security are the same words in many European languages.
Now having said that, a lot of these EU economies where you might be thinking of working, are modern economies with lots of internationally regulated stuff going on. The aviation industry, for example, but there are lots of advanced industries that are regulated in a similar way, right around the world. You’ll still find familiar concepts in different EU countries.
Now culturally, I’ve spent a lot of time working with Germans, who tend to come unstuck with the Anglo-Saxon approach to safety, because they have the mentality that they make things to work, not to fail. For German engineers especially, the Anglo-Saxon fixation with looking at how things could go wrong seems very strange. They often just don’t get it unless they’ve been in an industry like aviation, where that approach has been inculcated into them. Germans often don’t understand Australian WHS, because it’s just not their mentality. (They don’t build things to fail, they build them to work, so maybe ‘Safety-II’ will take off in Germany because of that.)
In France, I have to say the French are extremely competent engineers and they’re very good at safety. However, they do it their way they do it the French way, which is different to UK/Australia. Don’t expect the French to do it our way. They’re going to do it their way, and you need to learn, to understand what they do, how they do it and why they do it that way. France is in many ways a very nationalized country and it’s a national enterprise. Most engineers go through one system, and there is one top college for engineering in France.
There’s one and only one way of doing it in France, which may come as a bit of a shock to Aussies given our somewhat ‘here and there’ approach to regulation in Australia. The French are competent but don’t expect them to comply with the Aussie or UK way of doing things.
Now, I’ve said ‘variations across Southern Europe’, and I’m trying to be tactful here because a lot of the southern European approach to Safety is very variable. Sometimes I’ve been very impressed watching how, say, the Spanish do business, but in other countries like Italy the approach to safety can be a bit of a shocker. If you’re buying stuff from Italy, the contract may say they’ll do ‘x y z’ and they’ll produce safety reports. Just because they’ve said so, doesn’t mean a that it’s going to happen or that the stuff they produce is going to be worth the paper it’s written on, quite frankly. Some countries are very good in certain areas, but not so much in others.
Well, thanks for listening! This presentation contains a little bit of information from the UK HSE and some from Safe Work Australia and I’ve produced that under the [appropriate] Creative Commons licenses. If you go to The Safety Artisan website you will see the details of the licenses.
The content of this video presentation is copyright The Safety Artisan, 2019.
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It just remains for me to say stay safe and I’ll see you next month. Goodbye!
Blog: Australian vs. UK Safety Law: The End!
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