Category: Work Health and Safety

Categories
Blog Work Health and Safety

Lessons Learned from a Fatal Accident

Photo by NEOSiAM 2020 from Pexels

Lessons Learned: in this 30-minute video, we learn lessons from an accident in 2016 that killed four people on the Thunder River Rapids Ride in Queensland. The coroner’s report was issued this year, and we go through the summary of that report. In it we find failings in WHS Duties, Due Diligence, risk management, and failures to eliminate or minimize risks So Far As is Reasonably Practicable (SFARP). We do not ‘name and shame’, rather we focus on where we can find guidance to do better.

In 2016, four people died on the Thunder River Rapids Ride.

Lessons Learned: Key Points

We examine multiple failings in:

  • WHS Duties;
  • WHS Due Diligence;
  • Risk management; and
  • Eliminating or minimizing risks So Far As is Reasonably Practicable (SFARP).

Transcript: Lessons Learned from a Theme Park Tragedy

Introduction

Hello, everyone, and welcome to the Safety Artisan: purveyors of fine safety engineering training videos and other resources. I’m Simon and I’m your host and today we’re going to be doing something slightly different. So, there are no PowerPoint slides. Instead, I’m going to be reading from a coroner’s report from a well-known accident here in Australia and we’re going to be learning some lessons in the context of WHS workplace health and safety law.

Disclaimer

Now, I’d just like to reassure you before we start that I won’t be mentioning the names of the deceased. I won’t be sharing any images of them. And I’m not even going to mention the firm that owned the theme park because this is not about bashing people when they’re down. It’s about us as a community learning lessons when things go wrong to fix the problem, not the blame. So that’s what I’d like to emphasize here.

The Coroner’s Report

So, I’m just going to I’m just turning to the summary of the coroner’s report. The coroner was examining the deaths of four people back in 2016 on what was called the Thunder River Rapids Ride. Or TRRR or TR3 for short because it’s a bit of a mouthful. This was a water ride, as the name implies, and what went wrong was the water level dropped. Rafts, these circular rafts that went down the rapids, went down the chute, got stuck. Another raft came up behind the stuck raft and went into it. One of the rafts tipped over. These rafts seat six people in a circular configuration. You may have seen them. They’re in – different versions of this ride are in lots of theme parks.

But out of the six, unfortunately, the only two escaped before people were killed, tragically. So that’s the background. That happened in October 2016, I think it was. The coroner’s report came out a few months ago, and I’ve been wanting to talk about it for some time because it illustrates very well several issues where WHS can help us do the right thing.

WHS Duties

So, first of all, I’m looking at the first paragraph in the summary, the coroner starts off; the design and construction of the TRRR at the conveyor and unload area posed a significant risk to the health and safety of patrons. Notice that the coroner says the design and construction. Most people think that WHS only applies to workplaces and people managing workplaces, but it does a lot more than that. Sections 22 through 26 of the Act talk about the duties of designers, manufacturers, importers, suppliers, and then people who commissioned, install, et cetera.

So, WHS supplies duties on a wide range of businesses and undertakings, and designers and constructors are key. There are two of them. Now, it’s worth noting that there was no importer here. The theme park, although the TRRR ride was similar to a ride available commercially elsewhere, for some reason, they chose to design and build their version in Queensland. Don’t know why. Anyway, that doesn’t matter now. So, there was no importer, but otherwise, even if you didn’t design and construct the thing, if you imported it, the same duties still apply to you.

No Effective Risk Assessment

So, the coroner then goes on to talk about risks and hazards and says each of these obvious hazards posed a risk to the safety of patrons on the ride and would have been easily identifiable to a competent person had one ever been commissioned to conduct a risk and hazard assessment of the ride. So, what the coroner is saying there is, “No effective risk assessment has been done”. Now, that is contrary to the risk management code of practice under WHS and also, of course, that the definition of SFARP, so far as reasonably practicable, basically is a risk assessment or risk management process. So, if you’ve not done effective risk management, you can’t say that you’ve eliminated or minimized risks SFARP, which is another legal requirement. So, a double whammy there.

Then moving on. “Had noticed been taken of lessons learned from the preceding incidents, which were all of a very similar nature …” and then he goes on. That’s the back end of a sentence where he says, you didn’t do this, you had incidents on the ride, which are very similar in the past, and you didn’t learn from them. And again, concerning reducing risks SFARP, Section 18 in the WHS Act, which talks about the definition of reasonably practicable, which is the core of SFARP, talks about what ought to have been known at the time.

So, when you’re doing a risk assessment or maybe you’re reassessing risk after a modification – and this ride was heavily modified several times or after an incident – you need to take account of the available information. And the owners of TRRR the operators didn’t do that. So, another big failing.

The coroner goes on to note that records available concerning the modifications to the ride are scant and ad hoc. And again, there’s a section in the WHS risk management code of practice about keeping records. It’s not that onerous. I mean, the COP is pretty simple but they didn’t meet the requirement of the code of practice. So, bad news again.

Due Diligence

And then finally, I’ve got to the bottom of page one. So, the coroner then notes the maintenance tasks undertaken on the ride whilst done so regularly and diligently by the staff, seemed to have been based upon historical checklists which were rarely reviewed despite the age of the device or changes to the applicable Australian standards. Now, this is interesting. So, this is contravening a different section of the WHS Act.

Section 27, talks about the duties of officers and effectively that sort of company directors, and senior managers. Officers are supposed to exercise due diligence. In the act, due diligence is fairly simple- It’s six bullet points, but one of them is that the officers have to sort of keep up to date on what’s going on in their operation. They have to provide up-to-date and effective safety information for their staff. They’re also supposed to keep up with what’s going on in safety regulations that apply to their operation. So, I reckon in that one statement from the coroner then there’s probably three breaches of due diligence there to start with.

Risk Controls Lacking

We’ve reached the bottom of page one- Let’s carry on. The coroner then goes on to talk about risk controls that were or were not present and says, “in accordance with the hierarchy of controls, plant and engineering measures should have been considered as solutions to identified hazards”. So in WHS regulations and it’s repeated in the risk code of practice, there’s a thing called the hierarchy of controls. It says that some types of risk controls are more effective than others and therefore they come at the top of the list, whereas others are less effective and should be considered last.

So, top of the list is, “Can you eliminate the hazard?” If not, can you substitute the hazardous thing for something else that’s less hazardous- or with something else that is less hazardous, I should say? Can you put in engineering solutions or controls to control hazards? And then finally, at the bottom of my list are admin procedures for people to follow and then personal protective equipment for workers, for example. We’ll talk about this more later, but the top end of the hierarchy had just not been considered or not effectively anyway.

A Predictable Risk

So, the coroner then goes on to say, “rafts coming together on the ride was a well-known risk, highlighted by the incident in 2001 and again in 2004”. Now actually it says 2004, I think that might be a typo. Elsewhere, it says 2014, but certainly, two significant incidents were similar to the accident that killed four people. And it was acknowledged that various corrective measures could be undertaken to, quote, “adequately control the risk of raft collision”.

However, a number of these suggestions were not implemented on the ride. Now, given that they’ve demonstrated the ability to kill multiple people on the ride with a raft collision, it’s going to be a very, very difficult thing to justify not implementing controls. So, given the seriousness of the potential risk, to say that a control is feasible is practicable, but then to say “We’re not going to do it. It’s not reasonable”. That’s going to be very, very difficult to argue and I would suggest it’s almost a certainty that not all reasonably practicable controls were implemented, which means the risk is not SFARP, which is a legal requirement.

Further on, we come back to document management, which was poor with no formal risk register in place. So, no evidence of a proper risk assessment. Members of the department did not conduct any holistic risk assessments of rides with the general view that another department was responsible. So, the fact that risk assessment wasn’t done – that’s a failure. The fact that senior management didn’t knock heads together and say “This has to be done. Make it happen”- That’s also another failing. That’s a failing of due diligence, I suspect. So, we’ve got a couple more problems there.

High-Risk Plant

Then, later on, the coroner talks about necessary engineering oversight of high-risk plant not being done. Now, under WHS act definitions, amusement rides are counted as high-risk plant, presumably because of the number of serious accidents that have happened with them over the years. The managers of the TRRR didn’t meet their obligations concerning high-risk plants. So, some things that are optional for common stuff are mandatory for high-risk plants, and those obligations were not met it seems.

And then in just the next paragraph, we reinforce this due diligence issue. Only a scant amount of knowledge was held by those in management positions, including the general manager of engineering, as to the design modifications and past notable incidents on the ride. One of the requirements of due diligence is that senior management must know their operations, and know the hazards and risks associated with the operations. So for the engineering manager to be ignorant about modifications and risks associated with the ride, I think is a clear failure of due diligence.

Still talking about engineering, the coroner notes “it is significant that the general manager had no knowledge of past incidents involving rafts coming together on the ride”. Again, due diligence. If things have happened those need to be investigated and learned from and then you need to apply fresh controls if that’s required. And again, this is a requirement. So, this shows a lack of due diligence. It’s also a requirement in the risk management code of practice to look at things when new knowledge is gained. So, a couple more failures there.

No Water-Level Detection, Alarm Or Emergency Stop

Now, it said that the operators of the ride were well aware that when one pump failed, and there were two, the ride was no longer able to operate with the water level dropping dramatically, stranding the rafts on the steel support railings. And of course, that’s how the accident happened. Regardless, there was no formal means by which to monitor the water level of the ride and no audible alarm to advise one of the pumps had ceased to operate. So, a water level monitor? Well, we’re talking potentially about a float, which is a pretty simple thing. There’s one in every cistern, in every toilet in Australia. Maybe the one for the ride would have to be a bit more sophisticated than that- A bit industrial grade but the same principle.

And no alarm to advise the operators that this pump had failed, even though it was known that this would have a serious effect on the operation of the ride. So, there are multiple problems here. I suspect you’ll be able to find regulations that require these things. Certainly, if you looked at the code of practice on plant design because this counts as industrial plants, it’s a high-risk plant, so you would expect very high standards of engineering controls on high-risk plants and these were missing. More on that later.

In a similar vein, the coroner says “a basic automated detection system for the water level would have been inexpensive and may have prevented the incident from occurring”. So basically, the coroner is saying this control mechanism would have been cheap so it’s certainly reasonably practicable. If you’ve got a cheap control that will prevent a serious injury or a death, then how on earth are you going to argue that it’s not reasonable to implement it? The onus is on us to implement all reasonably practical controls.

And then similarly, the lack of a single emergency stop on the ride, which was capable of initiating a complete shutdown of all the mechanisms, was also inadequate. And that’s another requirement from the code of practice on plant design, which refers back to WHS regulations. So, another breach there.

Human Factors

We then move on to a section where it talks about operators, operators’ accounts of the incident, and other human factors. I’m probably going to ask my friend Peter Bender, who is a Human Factors specialist, to come and do a session on this and look at this in some more detail, because there are rich pickings in this section and I’m just going to skim the surface here because we haven’t got time to do more.

The coroner says “it’s clear that these 38 signals and checks to be undertaken by the ride operators was excessive, particularly given that the failure to carry out any one could potentially be a factor which would contribute to a serious incident”. So clearly, 38 signals and checks were distributed between two ride operators, because there was no one operator in control of the whole ride- that’s a human factors nightmare for a start- but clearly, the work designed for the ride was poor. There is good guidance available from Safe Work Australia on good work design so there’s no excuse for this kind of lapse.

And then the coroner goes on to say, reinforcing this point that the ride couldn’t be safely controlled by a human operator. The lack of engineering controls on a ride of this nature is unjustifiable. Again, reinforces the point that risk was not SFARP because not all reasonably practicable controls had been implemented. Particularly controls at the higher end of the hierarchy of controls. So, a serious failing there.  

(Now, I’ve got something that I’m going to skip, actually, but – It’s a heck of a comment, but it’s not relevant to WHS.)

Training And Competence

We’re moving on to training and competence. Those responsible for managing the ride whilst following the process and procedure in place – and I’m glad to see you from a human practice point of view that the coroner is not just trying to blame the last person who touched it. He’s making a point of saying the operators did all the right stuff. Nevertheless, they were largely not qualified to perform the work for which they were charged.

The process and procedures that they were following seemed to have been created by unknown persons. Because of the poor record-keeping, presumably who it is safe to assume lacked the necessary expertise. And I think the coroner is making a reasonable assumption there, given the multiple failings that we’ve seen in risk management, in due diligence, in record-keeping, in the knowledge of key people, et cetera, et cetera. It seems that the practice at the park was simply to accept what had always been done in terms of policy and procedure.

And despite changes to safety standards and practices happening over time, because this is an old ride, only limited and largely reactionary consideration was ever given to making changes, including training, provided to staff. So, reactionary -bad word. We’re supposed to predict risk and prevent harm from happening. So, multiple failures in due diligence here and on staff training, providing adequate staff training, providing adequate procedures, et cetera.

The coroner goes on to say, “regardless of the training provided at the park, it would never have been sufficient to overcome the poor design of the ride. The lack of automation and engineering controls”. So, again, the hierarchy of controls was not applied, and relatively cheap, engineering controls were not used, placing an undue burden on the operator. Sadly, this is all too common in many applications. This is one of the reasons they are not naming the ride operators or trying to shame them because I’ve seen this happen in so many different places. It wouldn’t be fair to single these people out.

‘Incident-Free’ Operations?

Now we have a curious, a curious little statement in paragraph 1040. The coroner says “submissions are made that there was a 30-year history of incident-free operation of the ride”. So, what it looks like is that the ride operators, and management, trying to tell the coroner that they never had an incident on the ride in 30 years, which sounds pretty impressive, doesn’t it, at face value?

But of course, the coroner already knew or discovered later on that there had been incidents on the ride. Two previous incidents were very similar to the fatal accident. Now, on the surface, this looks bad, doesn’t it? It looks like the ride management was trying to mislead the coroner. I don’t think that’s the case because I’ve seen many organizations do poor incident reporting, poor incident recording, and poor learning from experience from incidents. It doesn’t surprise me that the senior management was not aware of incidents on their ride. Unfortunately, it’s partly human nature.

Nobody likes to dwell on their failures or think about nasty things happening, and nobody likes to go to the boss saying we need to shut down a moneymaking ride. Don’t forget, this was a very popular ride. We need to shut down a moneymaking ride to spend more money on modifications to make it safer. And then management turns around and says, “Well, nobody’s been hurt. So, what’s the problem?” And again, I’ve seen this attitude again and again, even on people operating much more sophisticated and much more dangerous equipment than this. So, whilst this does look bad- the optics are not good, as they like to say. I don’t think there’s a conspiracy going on here. I think it’s just stupid mistakes because it’s so common. Moving on.

Standards

Now the coroner goes on to talk about standards not being followed, particularly when standards get updated over time. Bearing in mind this ride was 30 years old. The coroner states “it is essential that any difference in these standards are recognized and steps taken to ensure any shortfalls with a device manufactured internationally is managed”. Now, this is a little bit of an aside, because as I’ve mentioned before, the TRRR was actually designed and manufactured in Australia. Albeit not to any standards that we would recognize these days. But most rides were not and this highlights the duties of importers. So, if you import something from abroad, you need to make sure that it complies with Australian requirements. That’s a requirement, that’s a duty under WHS law. We’ll come back to this in just a moment.

The Role Of The Regulator

We’ll skip that one because we’ve done training and competency to death. So, following on about the international standards, the coroner also has a crack at the Queensland regulator, who I won’t name, and says “the regulator draws my attention to the difficulties arising when we’re requiring all amusement devices to comply with Australian standards. This difficulty is brought about by the fact that most amusement devices are designed and manufactured overseas, predominantly based on European standards”. [Actually, WHS law generally does NOT require us to comply with Australian Standards!]

Now, in the rest of the report, the coroner has a good old crack at the regulator. The coroner sticks the boot into the regulator for being pretty useless. And sadly, that’s no surprise in Australia. So basically, the regulator said, “Oh, it’s all too difficult!” And you think, “Well, it’s your job, actually, so why haven’t you done it properly?”

But being a little bit more practical, if you work in an industry where a lot of stuff is imported and let’s face it, that’s pretty common in Australia, you’ve got two choices. You can either try and change Australian standards so that they align better to the standards of the kit where you’re getting the stuff from in your industry, or maybe the regulators could say, “Okay, this is a common problem across the industry. We will provide some guidance that tells you how to make that transition from the international standards to Australian standards and what we as the regulator consider acceptable and not acceptable”. And then that helps the industry to do the right thing and to be consistent in terms of operation and enforcement.

So, the regulator is letting people who they regulate know this is the standard that is required of you, this is what you have to do. And that’s the job of a good regulator. So, the fact that the regulator in this particular case just hadn’t bothered to do so over some decades, it would seem, doesn’t say a lot for the professionalism of the regulator. And I’m not surprised that the coroner decided to have a go at them.

Summary

So, we’ve been through just over 20 comments, I think. I mean, I had 24/25 in total, but I skipped a few because they were a bit repetitive and it’s interesting to note that there were two major comments on failure to conduct designer duties and that kind of thing. Seven on risk management, four on SFARP, although of course, all the risk management ones also affect SFARP, and five on due diligence. So, there’re almost 20 significant breaches there and I wasn’t even really trying to pick up everything the coroner said. And bearing in mind, I was only reading from the summary. I didn’t bother reading the whole report because it’s pages and pages and pages.

And the lesson that we can draw from this, friends, is not to bash the people who make mistakes, but to learn lessons for ourselves. How could we do better? And I think the lesson is everything that we need to do has been set out in the WHS Act, in the WHS regulations. Then there are codes of practice that give us guidance in particular areas and our general responsibilities and these codes of practice also guide us on to what could should be considered, SFARP, for certain hazards and risks. There’s also some fantastic guidance, documentation, and information available from Safe Work Australia. On, for example, human factors and good work design and so on.

So, there’s lots of really good, really readable information out there and it’s all free. It’s all available on that wonderful thing we call the Internet. So, there is no excuse for making basic mistakes like this and killing people. It’s not that difficult. And a lot of the safety requirements are not that onerous. You don’t have to be a rocket scientist to read them and understand them. A lot of the requirements are basic, structured, common sense.

So, the lesson from this awful accident is it doesn’t have to be this way. We can do much better than that quite easily and if we don’t and something goes wrong, then the law will be after us. It will be interesting to see- I believe that WorkSafe Queensland is now investigating to see whether they’re going to bring any prosecutions that should be said. The police investigated and didn’t bring any prosecutions against individuals. I don’t know if Queensland has a corporate manslaughter act. I wouldn’t think so based on the fact that they’ve not prosecuted anybody, but you don’t need to find an individual guilty of gross negligence, or manslaughter for four WHS to take effect.

So, I suspect that in due course, we will see the operators of the theme park probably cop a significant fine and maybe some of their directors and senior managers will be going to jail. That’s how serious these and how numerous these breaches are. You don’t need to dig very deep to see what’s gone wrong and to see the legal obligations have not been met.

Meet the Author

My name’s Simon Di Nucci. I’m a practicing system safety engineer, and I have been, for the last 25 years; I’ve worked in all kinds of domains, aircraft, ships, submarines, sensors, and command and control systems, and some work on rail air traffic management systems, and lots of software safety. So, I’ve done a lot of different things!

Back to the ‘Work Health & Safety‘ and ‘Start Here‘ Topics Pages.

Categories
Blog Work Health and Safety

How to Demonstrate SFARP

Perform System Safety Assessment iaw Mil-Std-882E
Foundations of System Safety Course

In this lesson, I will teach you how to demonstrate SFARP. I’ve been doing this on complex programs for 20+ years now, both in the UK and Australia. The concept of ‘reasonably practicable’ is much easier to apply than people think. I’ve watched a lot of programs over-complicate the process. We just don’t have to do that! I have some practical tips for you, not just theory…

The proper phrase, from the Australian WHS Act, is ‘how to eliminate or minimize risks so far as is reasonably practicable’. (The Act never uses the acronym SFARP or SFAIRP, but everyone else does.)

Learning Objectives | Topics | Transcript

Demo of How to Demonstrate SFARP.
buy this lesson

This will build upon the post So Far As is Reasonably Practicable, where I shared the guidance from Safe Work Australia.

Learning Objectives: How to Demonstrate SFARP

You will be able to:

  • Understand the SFARP concept;
  • Understand the various SFARP techniques;
  • Apply those techniques, in the correct order, in practice.
  • These will allow you to perform most* SFARP demonstrations, confident that you know what you can and can’t do.

*A fully quantitative Cost-Benefit Analysis also requires you to understand and apply the concept of risk tolerability, which is another lesson.

Topics: How to Demonstrate SFARP

  • Introduction – Reasonably Practicable;
  • How to SFARP with:
    • Codes, Standards & Regulations; and
    • Controls, or groups of controls.
  • Some practical hints on good practice;
  • Examples; and
  • Source information.

Transcript: How to Demonstrate SFARP

Welcome to the safety artisan, I’m Simon and in this session, I’m going to be talking about SFARP – so far as is reasonably practicable.

This is a very misunderstood topic, but we’re going to be explaining how to demonstrate that risks have been eliminated or minimized so far as is reasonably practicable in accordance with Australian work, health, and safety law.

Topics

 So, we’re going to be talking about how to demonstrate SFARP, in accordance with Australian WHS. The observant among you will notice that I don’t have an Aussie accent.  I wasn’t born here, but I have worked in Australia on safety According to WHS for 10 years.  So I have learned how to do it, and I think importantly, I’ve learned the differences from the way it’s done in the UK.

Because SFARP or ALARP is done in the UK.  Although the legislation is different incidentally have a look at the lesson on Australian WHS for that. But that’s for another session.

Learning Objectives

So our learning objectives for this session at the end of this session, you should understand the SFARP concept and what it’s all about. You should understand the various techniques that are available to you and most importantly of all, you will be able to apply these techniques in the correct order because that’s important in the real world in practice. So those are the three general learning objectives.

Having learned these things, you will be able to perform most SFARP demonstrations confident that you know what you can do and what you can’t do. Perhaps more importantly, also what you should and shouldn’t do.

I say most SFARP demonstrations because to do a fully quantitative cost-benefit analysis, you will also need to understand the concept of risk tolerability and that’s another lesson.  I will go through that in a practical example, but I’m not going to explain risk tolerability today.

Australian WHS

I’m going to go through what ‘reasonably practicable’ means in Australian WHS because that’s the key to the whole thing.  Then we’re going to look at our various options for determining whether the risk is SFARP or not.

First, we’re going to look at codes of practice, standards, and regulations. In the second part, we’re going to look at how we assess controls or groups of controls to see whether we’ve done enough.

 All the way through, I’m going to be giving you some practical hints and tips on good practice to use and bad practice to avoid – as part of that will cover some examples.  I’ve got one particular example at the end, which you’ll see.  Finally, some brief notes on source information and where you can get more information.

 So that’s what we’re going to cover.

Introduction

Australian WHS legislation requires us, as I think I’ve said before, to eliminate or minimize risks so far as is reasonably practicable.  That’s the origin of the acronym SFARP (you might see it written as SFAIRP), and the core concept of that is reasonably practicable.  And this concept is in the WHS Act, it’s in the Regulations and it’s in the Codes of Practice.

[That’s the first 4 mins 30 secs.]

buy this lesson

My name’s Simon Di Nucci. I’m a practicing system safety engineer, and I have been, for the last 25 years; I’ve worked in all kinds of domains, aircraft, ships, submarines, sensors, and command and control systems, and some work on rail air traffic management systems, and lots of software safety. So, I’ve done a lot of different things!

How to Demonstrate SFARP: Any Questions?

Categories
Work Health and Safety

Guide to the WHS Act

An open book full of text.
Image by Wendy Van Zyl, from Pexels

This Guide to the WHS Act covers many topics of interest to system safety and design safety specialists. The full-length video explains the Federal Australian Work Health and Safety (WHS) Act (latest version, as of 14 Nov 2020). Brought to you by The Safety Artisan: professional, pragmatic, and impartial.

This is the four-minute demo of the full, 44-minute-long video.
buy the full-length video here

Recap: In the Short Video…

… which is here, we looked at:

  • The Primary Duty of Care; and
  • Duties of Designers.

Topics: Guide to the WHS Act

In this full-length video, we will look at much more…

  • § 3, Object [of the Act];
  • § 4-8, Definitions;
  • § 12A, Exclusions;
  • § 18, Reasonably Practicable;
  • § 19, Primary Duty of Care;
  • § 22-26, Duties of Designers, Manufacturers, Importers, Suppliers & those who Install/Construct/Commission;
  • § 27, Officers & Due Diligence;
  • § 46-49, Consult, Cooperate & Coordinate;
  • § 152, Function of the Regulator; and
  • § 274-276, WHS Regulations and CoP.

Transcript: Guide to the WHS Act

Click here for the Transcript

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. Today we’re going to be talking about the Australian Federal Work Health and Safety Act. I call it an unofficial guide or system or design safety practitioners (whatever you want to call yourselves). 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. I recorded a short video version of this. In that, we looked at the primary duty of care and the duty of designers. We spent some time looking at that and that video is available. 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 to Sections 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. Then there’s 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. 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. Hence, this video is only as good as the content that’s being presented okay?

The Object of the Act

So, the object of the act, then. 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. 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 the Commonwealth. And that’s not particularly helpful if you’re trying to operate in Australia as a corporation. Or if 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. There 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. If you are operating in Australian jurisdiction or you want to sell into an Australian jurisdiction do look at those definitions. 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 as a potential threat to human health? And what’s the degree of harm that might result from the hazard or risk? We’ve got a likelihood and degree of harm or severity. If we recall the fundamental definition of risk is that it’s though it’s the factor of those two things taken together. So, in 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. It 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. Let’s move 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.

Learn safety engineering with me, an industry professional with 25 years of experience, I have:

•Worked on aircraft, ships, submarines, ATMS, trains, and software;

•Tiny programs to some of the biggest (Eurofighter, Future Submarine);

•In the UK and Australia, on US and European programs;

•Taught safety to hundreds of people in the classroom, and thousands online;

•Presented on safety topics at several international conferences.

Back to the WHS Topic Page.

Categories
Work Health and Safety

Intro to Work Health and Safety

This Intro to Work Health and Safety (WHS) video looks at Australian legislation that is relevant to System Safety.

When I moved from the UK to Australia in 2012, I had to learn a new legal framework as a safety engineer. I was delighted to find that Australia had taken the principles of UK health and safety law, and crafted a simple, elegant, and readable set of legislation.

In Australia, WHS law applies not just to the workplace, but to designers, manufacturers, importers, and suppliers of plant, substances, and structures. In other words, it covers design and product safety as well.

This short video, and the full-length version, should be helpful to system, functional, and design safety practitioners.  It looks at the three classes of ‘upstream’ safety duties of designers, that also apply to manufacturers, importers, suppliers those who install/commission plant substances and structures. 

Intro to Work Health and Safety: so What?

Many people think the WHS Act only applies to the management of safety in the workplace. They’re wrong – it does much more than that. In this short presentation, I am going to show you why the WHS Act is relevant to those with ‘upstream’ safety responsibilities such as designers.

Intro to Work Health and Safety: Topics

  • The primary duty of care;
  • Safety duties of designers (Section 21); and
  • Similar duties apply to others, such as:
    • Manufacturers (Section 23);
    • Importers (Section 24);
    • Suppliers (Section 25);
    • Those installing, constructing or commissioning (Section 26);
    • Officers (Section 27); and
    • Workers (Section 28).

Intro to Work Health and Safety: Transcript

Click Here for the Transcript

Hi everyone and welcome to the Safety Artisan where you will find Professional, pragmatic And impartial Instruction on safety. Which we hope you enjoy. So today we’re talking about the Work Health and Safety (WHS) Act in Australia. Which is surprisingly relevant to what we do in Fact. Let’s see how surprising and relevant it is.

Were going to look at the WHS Act. And its relevance to what we’re talking about here on the Safety Artisan. And it’s important to answer that question first, The “So what” test. Many people think that the WHS Act is only applicable To safety In the workplace. So they see it as purely an occupational health and safety Piece of legislation.

And it isn’t!

It does do that, but it does so much more as well.
And in this short presentation, I’m going to show you why The WHS act is relevant. To system safety, functional safety, design safety, Whatever we want to call it.

Now I’m actually looking up some information On the work Health and Safety Act, from The Federal Register of Legislation. And, (In blue letters.) And if we go down to the bottom left-hand side of the screen. We will see
A little map of Australia with a big red tick on it. And in green, it says ‘in force latest version’. So I looked at the Website Today, the 6th of October. And this is the latest version. Which is just to make sure that We’ve got the right version. In Australia the Jurisdiction of which version of the act is in place Is complex. I’m not going to talk about that in the short session but I will in the full video version.

The Primary Duty of Care under the WHS Act

The Primary Duty of Care under the WHS Act is as follows. So a person Conducting a business or undertaking and – a Person Conducting a Business or Undertaking is usually abbreviated to PCBU. A horrible, horrible, clunky term! What it’s trying to say is whether you’re doing business or it is non-profit. Whether you work for the government. Or even if you’re self-employed. Whoever you are and whatever you do. If it’s to do with work, being paid for work. Then this applies to you.

Those people doing this stuff Are responsible For ensuring the health and
safety Of workers, who are engaged or paid by the person, by the PCBU. Workers whose activities are influenced or directed by the PCBU while they’re at work. And also the PCBU must ensure the health and safety of Other people. So in the vicinity of the workplace let’s say, or Maybe visitors.

As always the caveat on this ‘ensuring’ Health and Safety is ‘So Far As is reasonably Practicable’. Again we’re not going to be talking about So far as is reasonably practicable in this session, we’ll talk about it in the longer session; and, in fact, I think I’m probably going to do a session Just on the how to do So far as is Reasonably Practicable Because A lot of people Get it wrong. It’s quite a different concept. If you’re not used to it.

Designer Duties under the WHS Act

Moving on. We’ve jumped from Section 19 to Section 22. And we’re now talking about the duties of designers. Well, this doesn’t sound like occupational health and safety does it? So we look at the designer duties of PCBUs who design Plant, Substances, Or structures. So we’re talking industrial plant we’re not talking about commercial goods. There are other
Acts that apply to stuff that you would buy in a shop. So this is industrial plant, Chemical substances and the like. And structures and those might be buildings. Or they might be ships, floating platforms, whatever they might be. Aircraft. Cars.

The First WHS Duty of a Designer

So here we have The First Duty of a designer. And there are three groups of duties. First of all, The designer Has to ensure The health and safety of People in the workplace. If they’re designing plant. If they’re designing or creating. A substance, or A structure. That is to be used, Or might reasonably be expected to be used At a workplace. This duty applies to them. So they’ve got to do whatever it takes. To ensure Health and Safety So far as is reasonably practicable.

Now, carrying on from that. We get a bit more detail. So the designer has got to ensure, so far as is reasonably practicable, that plant, substance or structure Is designed To be without risks. The risks are To the health and safety of persons, who Are At a workplace. Who might, Use it For the purpose for which it was designed, Who might Handle the substance. Who might store the plant or substance? And who might construct a structure? Or, and here’s the catch-all, who might carry out any reasonably foreseeable activity At a workplace In relation to this plant, substance, or structure.

And then if we go on to Part (e)(i) And we now get a long list of stuff. Any reasonably foreseeable activity Includes manufacture, assembly, Use, Proper storage, decommissioning, dismantling, disposal, Etc. We run out of space there. But the bottom line is that the scope of this act is cradle to grave. So from the very first time that we Design A plant, substance or structure. Right through to final disposal of said, Plant Substance and structure. The Designer has safety responsibilities. Thinking about the whole lifecycle of This stuff.

The Second WHS Duty of a Designer

Now we move on to the other Two duties that a designer has. So in subsection 3. The designer has a duty to carry out testing. That’s what it says in the guide. Actually, if you look at the words in the act it says the designer must carry out or arrange for Calculations, analysis, testing, Or examination. Whatever is necessary for the performance of the duty that We just described In Subsection 2. You recall Subsection 2, cradle to grave, from creation to final disposal. Calculations, analysis, testing or examination Might be needed. The designer has got to Carry that out Or arrange it. In order to ensure safety SFARP.

The Third WHS Duty of a Designer

And then, our Final Duty Is having done all of that work. Having designed this stuff to be safe and done all the Calculations and testing. The designer must give Adequate information to each person provided with the design. And the purpose of doing so, We’re not just providing information for the sake of it, or because we felt like it. It’s provided for a specific purpose. So each Purpose, Which the plant, substance or structure was designed. So we need all the information associated With its design purpose.
We’ve got to provide the results of those calculations, analysis, testing and
examination.

And, Probably this is also equally Crucial from a hazard analysis point of view, Any conditions necessary to ensure that the plant, substance or structure Is without risk to health and safety. When it is used for the purpose for which it was designed, Or, (All the other stuff If we go back to
Section 2.)

So Section 4, Does actually say this applies to Section 2(a-e). But we ran out of space on the page, so the designers got to provide all the information necessary. for people to use this stuff and for the life cycle of whatever it is from cradle to grave. Now, If we look at Section 4(a-c), We can say that’s the kind of information we generate from Hazard Analysis from safety analysis. So, yeah, Absolutely We need system safety In order to meet these duties, to satisfy these duties.

A Consistent set of Duties Across the Supply Chain

And these duties are not just on designers, because the WHS Act Is actually Very, very clever. Because it applies Much the same duties, those three duties that we heard of. The duty to ensure health and safety. The duty to test and analyze. And the duty to provide information. If we look at Sections 22, Through 26, We find that very similar duties apply
To designers.
To manufacturers.
To importers.
To suppliers.
And to those installing, constructing, Or commissioning. Substances and
Structures.
And the duties in these sections are all consistent. Basically, it recognizes that there is a supply chain. From design right through to installation and commissioning. And Everybody in that chain Has duties To do their part correctly, or to test what they have to. Pass on information, To the next set of stakeholders.

And then, In addition to that, If we looked in Section 27 we would see the Officers Of the PCBU, so Company directors and the like, People with, major influence, Who are able to direct operations and that kind of thing. So senior management and directors of companies and the equivalent in the public sector Have special requirements applying to them. Again, We’re going to talk about that in the Main Video, Not in this one. And then workers have Duties to Comply with reasonable instructions, That are intended to keep safe And other workers [safe]. So that if we go to Section 28 you get the kind of thing that you would expect to see in work-place safety.

Copyright and Attribution

So that’s it In the short video. Just to mention that I have Shown you information From the Federal Register of Legislation. I’m entitled to do that under the Creative Commons license. And I’m making the required attribution statement. You can see it in the middle of the Screen. And for the full information on these terms on copyright and attribution, Please go to that page On my website. And you will find full details of the terms and conditions, under which this video was created. And if you want to see the full version of the introduction to the WHS Act, which is going to cover a lot more ground than this then please go to the Safety Artisan page On www.Patreon.com.

That’s the Presentation. And it just remains for me to say, Thanks very much for listening. I look forward to meeting you again. Cheers now.

The Full Version is Here…

If you want more, if you want a wider and deeper view of the WHS Act, then there’s a longer version of this video. Which you can get at my Patreon page.

I hope you enjoy it. Well that’s it for the short video, for now. Please go and have a look at the longer video to get the full picture. OK, everyone, it’s been a pleasure talking to you and I hope you found that useful. I’ll see you again soon. Goodbye.

The full-length ‘Guide to WHS’ video is here.

Categories
Blog Work Health and Safety

Australian vs. UK Safety Law

Australian versus UK Safety Law

This post, 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…

“It’s beginning to look a lot like BREXIT! La, La-la, la, la…”

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.

Australian vs. UK Safety Law: The Transcript

Click Here for the Transcript

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.

Introduction

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.

Legislation #1

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.

Legislation #2

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.

Legislation #3

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.

Legislation #4

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.

Guidance

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.

Jurisdictions

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.

Regulators #1

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.

Regulators #2

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.

Culture

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.

Copyright Statement

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.

[Please SUBSCRIBE to The Safety Artisan YouTube channel to see free training videos and free previews of paid content.].

It just remains for me to say stay safe and I’ll see you next month. Goodbye!

Australian vs. UK Safety Law: The End!

Back to the WHS Topic Page.

Categories
Course Work Health and Safety

Australian WHS Course

Photo by Catarina Sousa on Pexels.com

In this Australian WHS Course, we show you how to practically and pragmatically implement the essential elements of Australian Work Health and Safety Legislation. In particular, we look at the so-called ‘upstream’ WHS duties. These are the elements you need to safely introduce systems and services into the Australian market.

Lessons in This Course

A Guide to the Australian WHS Act

Image by Wendy Van Zyl, from Pexels

This Guide to the WHS Act covers many topics of interest to system safety and design safety specialists, this full-length video covers key sections (§) of the Act:

  • § 3, Object [of the Act];
  • § 4-8, Definitions;
  • § 12A, Exclusions;
  • § 18, Reasonably Practicable;
  • § 19, Primary Duty of Care;
  • § 22-26, Duties of Designers, Manufacturers, Importers, Suppliers & those who Install/Construct/Commission;
  • § 27, Officers & Due Diligence;
  • § 46-49, Consult, Cooperate & Coordinate;
  • § 152, Function of the Regulator; and
  • § 274-276, WHS Regulations and CoP.

The Consultation, Cooperation & Coordination Code of Practice

Photo by August de Richelieu from Pexels.com

In this 30-minute session, we look at the Consultation, Cooperation & Coordination Code of Practice (CC&C CoP). We cover the Commonwealth and Model versions of the CoP, appendices & a summary of detailed requirements; and further commentary. This CoP is one of the two that are generally applicable.

Topics:

  • CC&C in the Federal or Commonwealth CoP;
  • Extra CC&C in the Model CoP;
  • (Watch out for Jurisdiction);
  • Further commentary; and
  • Where to get more information.

The Risk Management CoP

Photo by Marta Branco from Pexels

In this 40-minute session, we look at the Risk Management Code of Practice (CoP). We cover: who has WHS duties; the four-step process; keeping records, appendices & a summary of detailed requirements; and further commentary. This CoP is the other one of the two that are generally applicable.

Topics:

  • Who has WHS duties;
  • The four-step process;
  • Keeping records, appendices & summary of detailed requirements;
  • Further commentary; and
  • Where to get more information.

Safe Design

Karolina Grabowska STAFFAGE from Pexels

Want some good guidance on Safe Design? In this 52-minute video from the Safety Artisan, you will find it. We take the official guidance from Safe Work Australia and provide a value-added commentary on it. The guidance integrates seamlessly with Australian law and regulations, but it is genuinely useful in any jurisdiction.

Topics:

  • A safe design approach;
  • Five principles of safe design;
  • Ergonomics and good work design;
  • Responsibility for safe design;
  • Product lifecycle;
  • Benefits of safe design;
  • Legal obligations; and
  • Our national approach.

How to Demonstrate SFARP

Photo by Sondre Dahl from Pexels.com

So our learning objectives for this session at the end of this session, you should understand the SFARP concept: what it’s all about. You should understand the variety of techniques that are available to you. Most importantly, you will be able to apply these techniques in the correct order, because that’s important in the real world.

Topics

  • Introduction – Reasonably Practicable;
  • How to SFARP with:
    • Codes, Standards & Regulations; and
    • Controls, or groups of controls.
  • Some practical hints on good practice;
  • Examples; and
  • Source information.

These lessons sell for $45 USD each, but you can get a 20% discount here. (You can get a bigger discount by subscribing to our mailing list!)

Categories
Blog Work Health and Safety

So Far As Is Reasonably Practicable

Get How to Demonstrate #SFARP
Photo by EKATERINA BOLOVTSOVA from Pexels

‘So Far As Is Reasonably Practicable’ is a phrase that gets used a lot, but what does it mean? How do you demonstrate it?

In this post, I will talk about how to demonstrate SFARP. I’ve been doing this on complex programs for 20+ years now, both in the UK and Australia. The concept of ‘reasonably practicable’ is much easier to apply than people think. I’ve watched a lot of programs over-complicate the process. We just don’t have to do that!

I have some practical tips for you, not just theory. In Australia we do it like this … and you can learn from this wherever you operate!

Attribution

This post uses text from ‘How to Determine what is Reasonably Practicable to Meet a Health and Safety Duty’, published by Safe Work Australia in May 2013.

This copyright work is licensed under a Creative Commons Attribution-Noncommercial 3.0 Australia license. To view a copy of this license, visit here. In essence, you are free to copy, communicate and adapt the work for non-commercial purposes, as long as you attribute the work to Safe Work Australia and abide by the other license terms.

How is ‘reasonably practicable’ defined?

Section 18 of the WHS Act defines the standard that is to be met and describes the process for determining this:

S.18: In this Act, ‘reasonably practicable’, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including:

  • the likelihood of the hazard or the risk concerned occurring; and
  • the degree of harm that might result from the hazard or the risk; and
  • what the person concerned knows, or ought reasonably to know, about the hazard or risk, and about the ways of eliminating or minimising the risk; and
  • the availability and suitability of ways to eliminate or minimise the risk; and
  • after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Note that this definition is actually a risk analysis process. The WHS Risk Management Code of Practice provides the minimum process that will meet this requirement.

Top Tip

All Relevant Matters

The process requires that all relevant matters, including those listed in the section, are taken into account and weighed up when determining what is reasonably practicable in particular circumstances.

There are two elements to what is ‘reasonably practicable’. A duty holder must first consider what can be done—that is, what is possible in the circumstances for ensuring health and safety. They must then consider whether it is reasonable in the circumstances to do all that is possible.

Some of the matters listed in section 18 will be relevant to identifying what can be done, for example, if control measures that will eliminate or minimize the risk are available and suitable. Other matters will be relevant to identifying whether what can be done is reasonable to do, for example, if the risk and degree of harm are grossly disproportionate to the cost of implementing the control measure.

To identify what would be reasonably practicable to do, all of the relevant matters must be taken into account and a balance achieved that will provide the highest level of protection that is both possible and reasonable in the circumstances. No single matter determines what is or was at a particular time reasonably practicable to be done to ensure health and safety.

What Each of the ‘Relevant Matters’ Mean

FactorRelevance
The likelihood of the hazard or the risk concerned occurring  The greater the likelihood of a risk occurring, the greater the significance this will play when weighing up all matters and determining what is reasonably practicable. If harm is more likely to occur, then it may be reasonable to expect more to be done to eliminate or minimize the risk. The frequency of an activity or specific circumstances will be relevant to the likelihood of a risk occurring. The more a worker is exposed to a hazard, the more likely they are to suffer harm from it.
The degree of harm that might result from the hazard or the risk  The greater the degree of harm that could result from the hazard or risk, the more significant this factor will be when weighing up all matters to be taken into account and identifying what is reasonably practicable in the circumstances. Clearly, more would be expected of a duty holder to eliminate or minimize the risk of death or serious injury than lesser harm.
What the person concerned knows, or ought reasonably to know, about the hazard or risk, and ways of eliminating or minimizing the risk  The knowledge about a hazard or risk, and any ways of eliminating or minimizing the hazard or risk, will be what the duty holder actually knows, and what a reasonable person in the duty holder’s position (e.g. a person in the same industry) would reasonably be expected to know. This is commonly referred to as the state of knowledge. The courts have consistently stated a duty holder must consider all reasonably foreseeable hazards and risks when identifying what is reasonably practicable.
The availability and suitability of ways to eliminate or minimize the risk  This requires consideration of not only what is available, but also what is suitable for the elimination or minimization of risk. A risk control that may be effective in some circumstances or environments may not be effective or suitable in others, because of things such as the workplace layout, skills of relevant workers, or the particular way in which the work is done. Equipment to eliminate or minimize a hazard or risk is regarded as being available if it is provided on the open market, or if it is possible to manufacture it. A work process or change to a work process to eliminate or minimize a hazard or risk is regarded as being available if it is feasible to implement. A way of eliminating or minimizing a hazard or risk is regarded as suitable if it: is effective in eliminating or minimizing the likelihood or degree of harm from a hazard or risk does not introduce new and higher risks in the circumstances, and is practical to implement in the circumstances in which the hazard or risk exists.
The cost associated with available ways of eliminating or minimizing the risk, including whether the cost is grossly disproportionate to the risk.  Although the cost of eliminating or minimizing risk is relevant in determining what is reasonably practicable, there is a clear presumption in favor of safety ahead of cost.  The cost of eliminating or minimizing risk must only be taken into account after identifying the extent of the risk (the likelihood and degree of harm) and the available ways of eliminating or minimizing the risk. The costs of implementing a particular control may include costs of purchase, installation, maintenance, and operation of the control measure and any impact on productivity as a result of the introduction of the control measure. A calculation of the costs of implementing a control measure must take into account any savings from fewer incidents, injuries, and illnesses, potentially improved productivity, and reduced staff turnover.
The ‘Relevant Matters’ – we will look at each one of these in turn, below.

The first three Factors are covered in the Risk Management Code of Practice, so we won’t repeat that stuff here. I just want to note:

Remember that “what you ought reasonably to know” includes what your legislator and regulator has published. You can’t be ignorant of this basic stuff and claim to have minimized risks SFARP!

Top Tip

Is the Control Measure Available and Suitable?

Investigations and inquiries may identify many ways to eliminate or minimize a particular type of risk. Some of these may, however, not be available … or may not be suitable in the particular circumstances.

Examples:

  • A device may not have been introduced into the Australian market, or may be incompatible with Australian operating conditions.
  • Radio communication to minimise risks from people working in isolation or in remote locations may not be suitable in areas where there is no signal or a poor one.
  • Mechanical lifting aids may not be able to operate in areas where there is insufficient room to move them around.
  • Equipment may not be able to be used in areas where the necessary energy source, such as electricity or gas, is unavailable.
  • Particular processes may not be able to be used if they rely on circumstances, including the behaviour of others, over which the duty holder has no control.

Availability

Equipment to eliminate or minimize a hazard or risk is regarded as being available if it is provided on the open market, or if it is possible to manufacture it.

A work process or change to a work process to eliminate or minimize a hazard or risk is regarded as being available if it is feasible to implement.

Suitability

A way of eliminating or minimizing a hazard or risk is regarded as suitable if it:

  • is effective in eliminating or minimising the likelihood or degree of harm from a hazard or risk
  • does not introduce new and higher risks in the circumstances, and
  • is practical to implement in the circumstances in which the hazard or risk exists.

These tests of availability and suitability are very powerful, but they are often overlooked. Make sure that you apply these tests before you consider whether a control is reasonable – it saves a lot of effort.

Top Tip

How to Determine what is Reasonable

Just because something can be done does not mean that it is reasonably practicable for the duty holder to do it. What is required is an assessment of what a reasonable person in the position of the duty holder would do in the circumstances, taking a careful and prudent approach and erring on the side of caution.

There are options for determining what is reasonable, including Codes of Practice and Standards. We will look at this in more depth in another lesson.

Top Tip

The aim must be to keep trying to lower the likelihood and degree of harm until further steps are not reasonable in the circumstances. Questions you should ask to identify if they are doing enough are:

  • Is there more I can do to either
    • minimise the risk myself, or
    • ensure another party with the relevant skills and expertise can properly implement health and safety measures and minimise risks?
  • If the answer is yes to either of the above, is it reasonable for me not to do so?

Okay, here we are looking at Consultation, Cooperation and Coordination between a Duty Holder and workers or other Duty Holders. Look at the C, C&C Code of Practice for help with this.

Top Tip

The more likely the risk, the more that is required to be done to eliminate or minimize it. The greater the degree of harm, the more that is required to be done to eliminate or minimize it.

If there is at least a moderate likelihood of death or serious injury, then the highest level of protection should be provided.

The Guidance

This statement is fine in a workplace, but if you are designing something like a car, a plane, or a ship – something complex which could hurt lots of people – then this approach is inadequate. You need to apply the concept of risk tolerability and a Cost-Benefit Analysis.

Top Tip

It may not be reasonable to require expensive and time-consuming controls, for example, engineering controls, to be applied to minimize or further minimize a low likelihood of minor harm. It may however be reasonable to apply less expensive controls such as training and supervision to further lower the likelihood of the risk.

When considering each control or combination of controls, a duty holder must take into account the likelihood of a particular control [is] effective. Guards may be removed, systems of work may not be understood and followed, and personal protective equipment may not always be worn. Further controls such as signs or supervision, may be needed to make a control more likely to be effective.

Cost

While cost is specified in Section 18 (of the WHS Act) as a matter to be taken into account and weighed up with other relevant matters to identify what is reasonably practicable, this must only be done after assessing the extent of the risk and the ways of eliminating or minimizing it.

The cost of implementing a particular measure may include the cost of purchase, installation, maintenance and operation of the control measure and any impact on productivity as a result of the introduction of the control measure.

A calculation of the cost of implementing a control measure should also take into account any savings it will yield in reductions in incidents, injuries, illnesses and staff turnover, as well as improvements in staff productivity.

Remember there must be a clear presumption in favor of safety over cost.

Top Tip

Before determining whether expenditure to eliminate or minimize a risk is reasonably practicable in the circumstances, the PCBU must consider:

  • the likelihood and degree of harm of the hazard or risk, and
  • the reduction in the likelihood or degree of harm that will result if the control measure is adopted.

The more likely the hazard or risk, or the greater the harm that may result from it, the less weight should be given to the cost of eliminating the hazard or risk.

Okay, this is really talking about tolerability, as found in discussions of ALARP in the UK, although this Australian guidance avoids saying so!

Top Tip

If you cannot afford to implement a control measure that should be implemented after following the weighing-up process set out in Section 18 of the WHS Act, they should not engage in the activity that gives rise to that risk.

My name’s Simon Di Nucci. I’m a practicing system safety engineer, and I have been, for the last 25 years; I’ve worked in all kinds of domains, aircraft, ships, submarines, sensors, and command and control systems, and some work on rail air traffic management systems, and lots of software safety. So, I’ve done a lot of different things!

What are your questions about SFARP and Reasonably Practicable?

Categories
Blog Work Health and Safety

Due Diligence and Safety

Photo by Sora Shimazaki from Pexels
Photo by Sora Shimazaki from Pexels

In this article, I’m looking at Due Diligence and Safety in the USA, UK, and Australia. Why? Because Due Diligence is the root of so much that we should be doing in Safety.

Let’s start with the definitions of due diligence in the way that it applies to safety (because due diligence is a concept that has many different applications in business.)

Due Diligence in the United States of America

Definition of Due Diligence

1law : the care that a reasonable person exercises to avoid harm to other persons or their property …
Doing your due diligence: “… in this sense, it is synonymous with another legal term, ordinary care.”

Merriam-Webster Dictionary

That’s the definition from a popular US dictionary.

Workplace Safety in the USA

In the USA, the Federal Occupational Safety and Health Agency, (OSHA), governs health and safety in the workplace.  As the USA is a federal state, what the OSH Act or Agency covers is complex, as follows:

  • The Agency covers most private sector employers in all 50 US states, either directly through the federal agency or through an OSHA-approved state plan – 22 states have such a plan;
  • Workers at state and local government agencies are not covered by the Agency, but have OSH Act protections if they work in those states that have an OSHA-approved state program;
  • The Agency protects workers of all federal agencies;
  • The Act does not cover the self-employed, immediate family members of farm employers; and
  • The Act does not cover workplace hazards regulated by another federal agency (for example, the Mine Safety and Health Administration, the Department of Energy, or Coast Guard).[2]  

Are you confused?  I am!

Product Safety in the USA

To add to my confusion the US Consumer Product Safety Commission (CPSA) regulates the safety of some consumer products. It does so under thirteen different federal laws.  These acts regulate, for example, child safety, flammable fabrics, art supplies, poisons, and refrigerators[3].  I can’t see any coherent pattern to what the CPSA regulates.

However, the US Federal Government tends not to manage product safety.  It is more often addressed via state legislation, which varies from state to state.  

Product safety is also dealt with through civil liability: victims sue you if your product hurts someone.  In other words “Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause.”[4]

There are different theories of liability, one of them being ‘strict liability.  “In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.”[5] 

Back to Due Diligence

Now we circle back to due diligence: “due diligence is the only available defense to a crime that is one of strict liability … Once the criminal offence is proven, the defendant must prove on balance that they did everything possible to prevent the act from happening.”[6]

(I also note from that Wikipedia article that “It is not enough that they took the normal standard of care in their industry – they must show that they took every reasonable precaution.”  We now seem to be heading towards our old friend ‘reasonably practicable’ – but that’s another article!)

There is a big difference in the way that the USA manages workplace and product health and safety.  Due Diligence may be a useful concept in all these settings. However, I’m finding it very difficult to say what it means when applied to safety.

Due Diligence Around the World

It was also challenging to pin down due diligence and safety in the United Kingdom (and still is).

In 2007, the UK’s Health and Safety Executive (the national regulator, much like OSHA in the USA) published a useful study into Due Diligence[7].  This report looked at “whether the law in nine different countries imposes health and safety duties upon boardroom directors (and other senior managers)”.

Due Diligence in Nine Different Countries

It concluded that “seven out of nine countries contain safety legislation that imposes positive safety obligations upon either directors or senior managers of companies. These are: Germany, France, Italy, Sweden, Japan, Canada (four out of fourteen jurisdictions) and Australia (two out of nine jurisdictions).”

Thus, the criminal law in these countries imposes safety obligations on directors or senior managers.  

Interestingly, the Report found that exercising “due diligence to prevent the commission of the offence” was often found to be a viable defense for company directors and senior managers in many jurisdictions.

Due Diligence in the United Kingdom

The report observed that, in 2007, “It is fair to say that the legislative framework for regulating occupational health and safety (OHS) in Great Britain appears unusual in not imposing positive duties on directors. The majority of the nine countries studied do have this kind of legislation.” 

The UK brought the Corporate Manslaughter and Corporate Homicide Act into force in 2007 – the same year as this Report.  The UK introduced this because of several failures to prosecute company directors after high-profile fatal accidents.  Before 2007, courts had to find individuals guilty of gross negligence manslaughter to hold them accountable. Such prosecutions often failed.

Whether the Due Diligence Report had any influence on the 2007 Act is hard to say. This Report is still the best result on the UK HSE’s website for ‘due diligence’ so not much seems to have changed.

Safety Law in Australia

Now Australia has an interesting mix of approaches derived from those in the USA and UK.

Australia is a Federation

Australia, like the USA, is a federal state.  Responsibility for health and safety generally resides with the states and territories.  The federal government only controls health and safety in federal workplaces or on federal land.  In Australia, we have a similar jurisdictional model to the USA, with all the complexity that can introduce.

US practices also influence Australian industry and commerce.  Safety requirements are often met by meeting specifications. (Whereas the UK uses a ‘safety by intent’ approach – another article I must write).  Thus, Australian safety practice often relies on certification against standards, as in the US. 

Australian Work Health and Safety Law

In Australia, we have adopted our own version of the UK Health and Safety at Work Act, 1974.  The Australian government introduced a much-refined version of UK law in 2011, some 37 years after the UK Act.

To achieve standardization across Australia, the Federal Government agreed with state and territory governments to introduce a model-based approach.

Safe Work Australia developed the Model WHS Act, Regulations, and Codes of Practice, collaboratively. Then the states and territories all agreed to adopt these centrally-developed articles of legislation.

States and territories were free to modify the Models as they saw fit. In general, the different jurisdictions have changed little, although Victoria has chosen not to implement WHS at all (thanks, Victoria, for being team players).

Unlike in the USA, Australian Work Health and Safety (WHS) legislation covers both workplaces and non-consumer goods. (Consumer goods are covered by other laws.)

This criminal law sets standards that manufacturers, designers, importers, and users must achieve when engineering, installing, commissioning equipment, and running it within a workplace.

Safety Due Diligence in Australia

In Australia, we are fortunate that the Work Health and Safety Act introduces a very specific and practical definition of what Due diligence is when applied to safety duties.

The Act says that Officers (company directors and senior managers) have additional duties.  Officers must exercise ‘due diligence. Under Division 4—Duty of officers, workers and other persons, Section 27  Duty of officers:

             (1)  If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. 

Australian WHS Act, 2011

We’re now talking about what is due diligence in the context of health and safety. I need to be precise about that. The term ‘due diligence’ appears in other Australian laws and can have different meanings. In this post, the definition of due diligence applies to WHS duties only.

We’ve got to do six things, in sub-paragraphs (a) to (f), to demonstrate due diligence. 

What does Due Diligence Mean (a & b)?

(5)  In this section, due diligence includes taking reasonable steps:

                     (a)  to acquire and keep up‑to‑date knowledge of work health and safety matters; and

                     (b)  to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

Section 27

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 their business’s operations and the risks they control.  If you’re a company director you need to know what the operation does.

You cannot hide behind “I didn’t know” because it’s a legal requirement for you to do so.  There’s no pleading 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.  

We don’t necessarily have to be up on all the specifics of everything going on in your organization, but you should know what your organization does. However, we should be aware of the general costs and risks associated with that kind of business.

What does Due Diligence Mean (c, d, e & f)?

                     (c)  to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

Section 27

Now, thirdly, we are moving on. Basically, sub-paragraphs C, D, E, and F refer to appropriate resources and processes.  Officers have got to ensure that PCBUs have available and use appropriate resources and processes in order to control risks.  That says you’ve got to provide those resources and processes and there is supervision.

Maybe you put in a Safety Management System that ensures people actually do use the stuff they should, to keep themselves safe.  And that’s very relevant because often people don’t like wearing, for example, Personal Protective Equipment (PPE) because it’s uncomfortable or slows you down, so the temptation is to take it off.

What does Due Diligence Mean (d)?

                     (d)  to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

Section 27

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.  Again, we’ve got to keep up to date. What’s going on in our own plants and maybe similar plants in the industry? We need a process to respond in a timely way to that information.

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.  That works together with sub-paragraph B, doesn’t it?  In parts A and B we need to keep up to date on the risks and what’s going on in the business. Also, in 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 a product, it comes with an instruction manual of all the processes needed.

What does Due Diligence Mean (e-f)?

                     (e)  to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

                      (f)  to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

Examples:  For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:

(a)    reporting notifiable incidents;

(b)    consulting with workers;

(c)    ensuring compliance with notices issued under this Act;

(d)    ensuring the provision of training and instruction to workers about work health and safety;

(e)    ensuring that health and safety representatives receive their entitlements to training.

Section 27

Finally, the officers must verify the provision and use of these resources and processes (in Parts C, D, and E).  Thus, we’ve got a simple six-point program that comprises due diligence, but it’s quite demanding. There’s no shirking this stuff or pretending you didn’t know.  I suspect it’s designed to hang Company directors who neglect and harm their workers.

What Due Diligence is All About

Let’s face it, this is all good common-sense stuff. We should be doing this anyway.

These requirements are only the minimum required for all businesses and undertakings in Australia. In any kind of high-risk industry, we should have a Safety Management System that does all of this and more.

Conclusion

Well, we’ve looked at due diligence as it applies to safety in many different countries.  We’ve concentrated on the USA, the UK, and Australia. But Germany, France, Italy, Sweden, Japan, Canada got an honorable mention as well.

The combinations of due diligence with criminal law, civil law, and safety are very confusing in the USA. It is largely non-existent in the UK. 

Only Australia has spelled out in law what due diligence means for safety.  You may not work in Australia, but I suggest that the clarity and practicality of the WHS Act definition on ‘due diligence’ are useful for safety practitioners everywhere.  

What does Due Diligence mean for Safety Practices where You are?

[1] Merriam-Webster online dictionary.

[2] https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Administration

[3] https://www.cpsc.gov/Regulations-Laws–Standards/Statutes

[4] https://en.wikipedia.org/wiki/Product_liability#Strict_liability

[5] https://en.wikipedia.org/wiki/Strict_liability

[6] https://en.wikipedia.org/wiki/Due_diligence

[7] https://www.hse.gov.uk/research/rrpdf/rr535.pdf

Categories
Work Health and Safety

Consultation, Cooperation & Coordination CoP

In this 30-minute session, we look at the Consultation, Cooperation & Coordination Code of Practice (CC&C CoP). We cover the Commonwealth and Model versions of the CoP, appendices & a summary of detailed requirements; and further commentary. This CoP is one of the two that are generally applicable.

This is the three-minute demo of the full, 30-minute video.
buy the full-length video here

Consultation, Cooperation & Coordination CoP: Topics

  • CC&C in the Federal or Commonwealth CoP;
  • Extra CC&C in the Model CoP;
  • (Watch out for Jurisdiction);
  • Further commentary; and
  • Where to get more information.

Consultation, Cooperation & Coordination CoP: Transcript

Click Here for the Transcript

Consultation, Cooperation & Coordination CoP

Hello, everyone, and welcome to The Safety Artisan. I’m Simon and today we’re going to be talking about a very useful subject, which is Codes of Practice. And one Code of Practice in particular, which is the Code of Practice for Consultation, Cooperation and Coordination. And it doesn’t sound like the most exciting subject, I’ll admit, but this is one of only two Codes of Practice that you must be aware of if operating in Australia, or exporting to Australia, or importing stuff to Australia, whatever it might be. The other Code of Practice that you must be aware of is the Risk Management Code of Practice. There are a lot more Code of Practices than these two, but they don’t always apply. So, I mean if you’re not doing anything to do with asbestos, you don’t have to worry about what it says in the Asbestos Code of Practice. But this one you do because it applies to everything.

Topics for this Session

And I’ve used this Code of Practice to help clients and to do particular things and help everybody understand what we have to do, and it’s very useful. And in this session, I will be explaining how to get the best out of this Code of Practice and, at the end, where to get more information. So, I hope you’ll find that useful. So we’re going to be talking about the – I’m just going to call it the C, C & C CoP for short because it’s a dreadful mouthful, isn’t it? We’re going to be looking at the federal or Commonwealth Code of Practice and then we’re going to look at some extras in the Model Code of Practice. So just to explain that briefly, the Model Code of Practice is on the Safe Work Australia website, and that is the Model from which all other CoPs are developed. However, Safe Work Australia is not a regulator. So individual regulators and the example I’m using is the Commonwealth one- or Comcare, as it’s known- they have chosen to edit the Model CoP and change it and remove quite a bit of material. Now, why they chose to do that, I do not know. So, you have to be careful which jurisdiction you’re operating in, in Australia. If you are in a Commonwealth workplace, then you need to apply the Commonwealth or the federal version of WHS, including this CoP. And if you’re in a state or territory workplace, or a commercial workplace in a state or territory, you need to apply the relevant one there. And just to complicate matters, Western Australia has not yet introduced WHS and Victoria has no plans to do so. So, of course, in Australia, we like to make life simple for ourselves, don’t we? Oh no, we don’t!

So after I’ve gone through some basics of what’s in the CoP, because you’ll see there’s an awful lot of material in there that I’m not going to talk about. I produced some commentary that I think you will find helpful and where to get more information, as I promised. So, let’s get on with it!

When to Consult

So, first of all- and you’ll notice that I’m only including those bits really that say when you must do something. So, this is quoting Section 49 of the WHS Act, which says that if you’re conducting a business or some kind of undertaking- so it’s not just a commercial business, but anything- you must consult with your workers when identifying hazards and assessing risks, making decisions about how you’re going to control those risks, making decisions about the adequacy of facilities for welfare, proposing changes that affect health and safety, and making decisions about procedures for consulting with workers, providing information and training, and so on and so forth. So, there’s a whole raft of things that you have to consult your workers on. So, this is all workplace so far. Now, in my role as a safety consultant, I’m often working with people who are introducing they’re buying bits of kit, or designing or importing bits of kit, and there is no work yet, so there’s no workers. But we always try and get a representative of the end-user involved because that really does help you do good quality safety work and avoid- to be honest- wasting time and money on things that are theoretically possible or theoretically sound problematic but in reality, it just doesn’t arise for whatever reason. So, I really do recommend getting those end-user representatives involved.

Effective Consultation

And if we go on to Section 48- for some reason, the cop quotes these things in reverse order- to be effective in consultation, we require information to be shared. Workers have got to have a reasonable opportunity to express their views. They’ve got to have a reasonable opportunity to contribute to decisions. Their views must be taken into account and they must be advised of the outcomes of consultation. So, all good common-sense stuff, I would think. Nothing controversial about this and that- to be honest- that’s a feature of CoPs. They tell you to do things that you think, “Yeah, I really ought to be doing that!”.

Consultation Procedures

Continuing with the countdown, we’re on to Section 47. Consultation procedures, again more basic common sense. If you’ve agreed to procedures for consultation, you must follow those procedures. It’s not rocket science, is it, folks? Let’s move on.

Sections 16 & 46

OK, now this is a bit more interesting, I think. This is getting into the real guts of this Code of Practice because where consultation, cooperation and coordination really come into play is where you’ve got multiple stakeholders, multiple duty holders- that is to say, those with a duty to protect the health and safety of people. Where multiple stakeholders, duty holders, have to get together and work together in order to come up with a solution. So the law says- Section 16 says where more than one person has a duty for the same thing, for the same matter, each person retains that responsibility. You cannot wriggle out of your responsibility just because you only control a bit over here and not over here. So, the two duty holders who have control here and here, they have to work together. The law says so. And so this is really the guts of this Code of Practice. And they must work together to discharge their duties to the extent to which they can. And the extent to which you can is the extent to which you influence and control the matter. So, WHS law is very big about control. If you have control of the bit, you’ve got to do your bit and you must work with people who have control of other things. You might be designing or buying a piece of kit. Other people might control the workplace. There might be another group of people who represent the operators, and then another group who represent the maintainers, and so on and so forth. They’ve all got to be involved if they’re relevant to managing risk. And of course, as risk in WHS is cradle to grave, then pretty much everyone is involved.

So, Section 46, and in these situations where you have got multiple duty holders, each person with a duty must, so far as is reasonably practicable, consult, cooperate and coordinate with all other persons. And I’m going to do a session quite soon on so far as is reasonably practicable, or SOFARP, and in it, I will tell you that SOFARP is an objective test and the law sets objective expectations for what a reasonable person would do. So, you can’t just say, “Well, I’ll decide what is reasonable or not reasonable.”. The law has already done it for you and there’s guidance out there to help you so follow it. So, we will do something on that guidance, about what is reasonable and what is reasonably practicable. But we’ve got to work with each other SOFARP. For the greater good! Sorry, that’s a quote from one of my favourite comedy films, by the way.

CoP Appendices

So, appendices to the CoP. If we look at the appendices in the federal or Commonwealth CoP, there are only three. So, they’ve got some examples of arrangements. They’ve got a consultation checklist, and they’ve got an appendix on C, C and C activities, which is all good. That’s all good stuff. In addition, if you go back to the Model Code of Practice, you will find that there’s also a glossary. Yes, they’ve got the consultation checklist. And then in Appendix E, you’ve got a summary of all the consultation requirements in the WHS regulations, which is really useful. So even if in the CoP that applies to you, your version of the CoP doesn’t have the appendix, I would recommend going and having a look in the Model CoP. And if you’re not aware what you got, if you’ve got a high-risk business, then you’re going to find some extra requirements in the regulations. So, I would go and have a look at Appendix E if you’re doing anything that could kill one or more people. So, if you’re dealing with more serious risks, then I would go and have a look at that just to- as a good lead in to the regulations. If you already know the regulations backwards, then great, you don’t need to bother. But there are over 600 regulations in WHS, so it’s always worth checking up to make sure you haven’t missed anything.

Extras in the Model CoP

We’ve kind of started already, but now we’ve really started we’re going to talk about the extras in the Model Code of Practice.

Further Duties of PCBUs

In the modal Code of Practice, we get a reminder that designers, manufacturers, importers and suppliers have got safety responsibilities to ensure, so far as is reasonably practicable, that the plant’s substance or structure that they are designing, etc, etc, is without risks to health and safety. And they’ve got a duty to carry out testing and analysis and to provide specific safety-related information about plant or substance. So there’s a good reminder in there that we all, wherever we are in the supply chain, we’ve all got these responsibilities. And to assist in meeting these duties, the WHS regulations require manufacturers to consult with designers, importers to consult with designers and manufacturers, and whoever commissions construction work to consult with the designer of the structure, for example. There’s a lot of useful extra pointers in the Model Code of Practice, which may not be in the version that, technically speaking/strictly speaking, you have to follow. So, worth a look.

Officers (of the PCBU)

And then there’s also a reminder to officers of the business or undertaking. Basically, officers says- for example, company directors, those kinds of people, have a duty to exercise due diligence. And you have to go look at due diligence to see what that is. There are basically six bullet points in the act that describe due diligence. Again, it’s all good common-sense stuff. There’s nothing esoteric in there or objectionable. And that due diligence includes taking reasonable steps to ensure that you’ve got appropriate processes for complying with the duty to consult as well as to duty- with workers sorry, as well as consulting, cooperating and coordinating with other duty holders. And there’s further guidance on what’s an officer in that interpretive guideline and under Section 27 of the law.

Principal Contractors

And then here is one I picked out. I’ve not got all of the requirements, but here’s a useful one. There’s a particular regulation, number 309, that says if you’re doing construction work the principal contractor for a construction project has a specific duty under WHS regulations to document in their WHS management plan the arrangements for consultation, cooperation and coordination. Now that’s not unique, as we’ve just seen, to construction, but there is a specific requirement in there for a principal contractor. And WHS assumes a particular structure where you’ve got a prime contractor, or a principal contractor, who is leading the construction for the customer. So, have a look at that. There’s also a CoP on the construction of structures so if you’re in that game you’ll find that useful too.

Major Hazard Facilities

And then I’ve got one slide on major hazard facilities. Now, a major hazard facility, strictly speaking, is a facility where you’ve got enough of a dangerous chemical- and it might be flammable, it might be toxic, it might be explosive, whatever it is. There’s a whole list of chemicals in the regulations and it says if you’ve got so many tons of this or that, you’ve hit the threshold and you are operating a major hazard facility. There’s a whole raft of extra regulations that apply to MHFs. And it says, for example, regulation 552 requires a major facility- sorry, a major hazard facilities safety case outline- so a safety case report by another name- to include a description of the consultation with workers that’s been undertaken in the preparation of the safety case. Again, you’ve got a very specific requirement to consult with workers and to document it. Which, interestingly enough, generally, you don’t have a duty to do that. It’s not mandatory to document consultation. It’s recommended. It’s a good idea but you don’t, strictly speaking, have to do it unless you’re operating an MHF. And as it says there, there’s a whole bunch of regulations that cover consultation about MHFs. But as I said, if you look at Appendix E of the Model Code of Practice, it’s got them all listed, which is very helpful.

Detailed Requirements

A quick word about detailed requirements. Every Code of Practice contains detailed requirements that follow this formula. So, there are three words that indicate a legal requirement that must be complied with. And those three words are ‘must’, ‘requires’- or variations on that word-, and ‘mandatory’. So, any instances of those words- Probably not always, because they occasionally you come across a usage of ‘must’ or ‘requires’ where you go “Actually, that’s just an English use-“ (if you know what I mean)-  “That’s just an English use of those words! It’s not really indicating a mandatory requirement”. But most of them do. So, in the Commonwealth Code of Practice, we have 41 instances of ‘must’. So, you’ve got to comply with those. You have 46 instances of ‘require’ and you’ve got to comply with those by law. Now, interestingly, in the Model Code of Practice, those numbers go up to 71 and 58, respectively. So, there’re a lot more requirements in the Model Code of Practice. So, again, do make sure you’ve got the right Code of Practice that’s been issued by the regulator for your jurisdiction. Because otherwise you might miss something you need to comply with or you might be complying with something that, strictly speaking, you don’t have to. Although, of course, it’s not a bad thing to do that but you don’t have to.

Then there’s the use of the word ‘should’, which is a recommended course of action, and ‘may’, suggests something that is optional. And again, in the Commonwealth Code of Practice, there are 62 instances of ‘should’ and 86 of ‘may’. Although I note that one of those instances of may, at least one, refers to the month of May when that Code of Practice was published. So, you’ve got to go through and make sure that they are relevant. And then it’s slightly more in the Model Code of Practice. It’s 66 and 90, respectively. But the difference is not so great for the mandatory stuff. Now as I’ve said before, and in the risk management Code of Practice, my advice to you is you must comply with ‘musts’ and ‘required’s. ‘Should’ is recommendation so I would suggest complying with that unless you’ve got a good reason not to. In which case, I would document the fact that you’ve got a good reason not to and why you’re not going to. And then ‘may’ is optional. You can do it if you want to and you can record the fact that you’ve considered those things and reject them if you want to but they are only options. So, I think there’s- effectively we’ve got three tiers here. We’ve got ‘must comply’, ‘recommended’, and ‘you can do this if you think it’s a good idea’.

And so the comment at the bottom, CoPs are not huge documents that typically a few tens of pages long. They will repay careful reading because you do have to comply with quite a lot of stuff that’s in there and that’s very clearly signposted, by the way. And also, of course, this particular Code of Practice is very useful for safety management plans. If you’ve got to write a safety management plan and you want to know what you have to include in it, then look in this Code of Practice and look in the Risk Management Code of Practice and make sure you include everything that is mandatory or ‘must’ or ‘requires’ and look at all the other stuff as well. And why not? If the copyright permits you to do so, which it usually does- not always, but usually. If the copyright permits you to do so and just copy and paste the stuff into your plan and then you know that you’ve got what you need. Then you can change the wording if you need to. But it will save you a lot of bother if you’ve got to write a safety management plan. It’ll help you to make sure you’ve got everything you need to and it will save you a lot of effort. So, I recommend that I’ve done that myself.

Commentary #1

I think I’ve just got a couple of slides of commentary. It’s worth reiterating that Codes of Practice are for all Australian industry. Whether it be a sole trader like myself operating out of our study or their garage or something, or whether it be a small operation- a family-run garage or shop, or whether it be the biggest corporation in Australia, whoever that is- if you’re running a major mining operation. So, Codes of Practice provide minimum requirements. These are the things that you must comply with. In high-risk industries, you’re probably going to have to do a lot more. And they do have a workplace application. So, they are written for the workplace. They’re not really written for the designer, manufacturer, importer, supplier, etc. But nevertheless, it is very, very helpful if you are those people to look at the CoP in order to get an idea of what your customers have got to comply with and therefore what you’re going to have to supply.

And as I’ve already said, CoP will repay careful reading because whilst they are guidance, they are really more than guidance. If you are ignorant of CoP and you don’t do what they say you are exposing yourself to prosecution. So, see my introduction to Codes of Practice where I talk about that. There are three reasons why you must be aware of Codes of Practice. And this is one of those two Codes of Practice that everyone must be aware of. The others- if you’re working with asbestos or welding or whatever it might be then there are specific Codes of Practice that you must be aware of for those activities. But this is one of those ones that applies to absolutely everybody, potentially. And as I’ve said before, the Model CoP has more detail than maybe some of the regulator-enforced Codes of Practice, which you will, I think, find helpful for higher risk applications. Whether legally you’ve got an MHF or not.

Commentary #2

And in fact, that’s my point in slide two. So, not everyone is required to have a formal safety management system for managing safety risk in a- while something is in service, while it’s being used. So, this CoP does not require us to have a formal safety management system, but it is required for major hazard facilities. It will be required for large and complex, say, defence systems and facilities and certain regulators do require you to have a safety management system. For example, if you’re operating offshore oil and gas platform, the NOPSEMA regulator requires you to have a formal SMS. As does the national rail regulator. And they’ll require you to follow CENELEC standards and all the other good stuff, depending on exactly what you’re doing. But they will require you to have a formal SMS and there will be others as well. So do check up with your regulator, some of whom are regionally or depending on where you are. Others, depending on whether it’s Commonwealth and others are depending on what kind of thing you do. If you’re in the rail industry or that these particular industries, I’m guessing you probably know already.

But if you don’t or you’re thinking of importing stuff. If you’re based outside of Australia and you want to know how we do things, do look it up. Do look up the regulator and see what they require because it’s the regulator that has the final say. So, do look at standards of good practice and do consult the regulator. It’s perfectly OK to ring up the regulator and ask questions and get them to give you an answer. And a good regulator will work hard in order to achieve clarity and help you to comply and do all the right things. Now, if you don’t have specific requirements from a regulator or you’re just not sure, but you think you’re working in a high-risk area where you could kill one or more people. And by the way, high-risk plant includes stuff like amusement rides and things like that. So, it’s not necessarily, all sort of radiation and poisonous stuff and things. It can be all kinds of stuff.

But if you’ve got the potential to really hurt lots of people, then I do recommend looking at the suite of guidance that is published for major hazard facilities which is excellent. And it will walk you through process, documentation- good things to do. So, if you work in those kinds of industries, do have a look at the MHF guidance because it’s really helpful. As I say, the regulator has the final say, but if you haven’t received any specific guidance I would suggest having a look at the MHF stuff. It’s on the Safe Work Australia website.

Copyright & Attribution

So just to let you know, I’ve quoted information from Safe Work Australia. I’ve also quoted information from the Commonwealth Register of Legislation. And I’ve done so in accordance with the requirements of the copyright license that those organisations impose on people who use their stuff, basically. So, I’ve got the statement there for the Federal Register of Legislation. If you go on the website- on SafetyArtisan.com, you’ll also find the relevant statement for Safe Work Australia or you can go to their website and look at the copyright statement and you will see that I complied with the requirements and been very careful to do so. As I said, you can go to the website and there’s more stuff there.

For More…

And if you want more information, then I heartily recommend that you subscribe to the Safety Artisan channel on YouTube, which is free. And if you do that, every time I issue a new free video- and I do short free versions of all the paid videos as well.- every time one comes up you will receive an email telling you that it’s come out and been released. So, I recommend subscribing.

And for all other lessons and resources, there’s lots of stuff available, please go to www.safetyartisan.com. As you can see, it’s a secure site, so you should be nice and safe browsing there.

End

Well, that is the end of this session on what I have to say on the consultation, cooperation and coordination Code of Practice. But do you remember I haven’t given you all the information you do need to read the CoP still. But hopefully, my- this session will have equipped you to do so effectively and make the best use in the minimum time.

So, all that remains for me to do is to say thank you very much for watching and supporting the Safety Artisan and I’ll see you next time. Goodbye.

End: Consultation, Cooperation & Coordination

Back to the WHS Topic Page.

Categories
Work Health and Safety

Risk Management Code of Practice

This image represents the contribution of programmable electronics and software to safety
Photo by Marta Branco from Pexels

In this 40-minute session, we look at the Risk Management Code of Practice (CoP). We cover: who has WHS duties; the four-step process; keeping records, appendices & a summary of detailed requirements; and further commentary. This CoP is one of the two that are generally applicable.

The Risk Management Code of Practice (Demo of the full, 40-minute, video).
buy the full-length video here

Risk Management Code of Practice: Topics

Risk Management Code of Practice (CoP):

  • Who has WHS duties;
  • The four-step process;
  • Keeping records, appendices & summary of detailed requirements;
  • Further commentary; and
  • Where to get more information.

Risk Management Code of Practice: Transcript

Risk Management Code of Practice: Transcript

Hello, everyone, and welcome to the Safety Artisan. I’m Simon, your host, and today we’re going to be talking about the Risk Management Code of Practice.

Today we’re talking about the Risk Management Code of Practice. It’s a code of practice that I’ve used myself. I’ve used it to guide my work and to guide other people to help them in their work. I’ve used it to simplify the whole practice of what we do because once you know what you’re supposed to do, you can do that and then you don’t have to worry about working out what you need to do. And conversely, it’s giving you everything you need to do so you can do more if you want to, but you don’t have to. So, it makes life a lot easier and simpler. And then finally, you can use it to justify what you’ve done. That what you’ve done is correct, and what you’ve done is complete and is enough. So, it’s very useful and that’s why I’m teaching it because it makes life easier.

And I’m going to explain how to use it- you’ll still need to go away and read the Code of Practice, as you’ll see, to get all the details – but I’m going to go through the leading particulars and explain how to use it. And then finally, at the end of the session, I’m going to show you where you can get more help on this topic and indeed other related topics because this Code of Practice is one of several. And there’s one other that you must refer to. This Risk Management Code of Practice is one that you really can’t do without. There is one more and then the others are optional, depending on whether you’re working in their respective areas. Anyway, let’s get on with it.

Code of Practice: Risk Management

So we’re talking about the Risk Management Code of Practice, which is under Australian Work Health and Safety Law. Now, if you’re not operating in Australia, this is not a requirement for you but nevertheless, it does contain some very useful guidance. And I’ve seen similar requirements in the US and in the UK, and I suspect all across the English-speaking world.

Topics for this Session

So, what we’re going to cover today. First of all, who has WHS duties because it’s a wider group of people than you might think it is. There’s the four-step process for actually doing risk management. And then I think we’ve got a slide each on keeping records, the appendices in the Code of Practice, and a summary of the detailed requirements in the Code of Practice. Then I’ve provided some further commentary and, as I’ve said before, where to get more information.

Who has WHS Duties?

So, first of all, who has WHS duties? Well, it’s kind of everybody. First of all, if you are a person conducting a business or undertaking or a PCBU for short, then you have duties. And it says business or undertaking, so it includes voluntary groups, non-profit, government, military, you name it. It doesn’t have to be a commercial business. Then you have duties if you are a designer, manufacturer, importer, supplier, or if you install test or commission plant substances or structures. So again, a wide range of people.

And it’s not just about managing safety in a workplace. There’re lots of duties on duty holders with upstream software- sorry not software, upstream safety duties. Like designers and manufacturers. Then finally, officers have additional duties and an officer basically is like a director of a company that sort of level. So, senior management with control over resources and they have to provide due diligence. So, there’s a bunch of requirements on them as well. And then, of course, there’s the workers and any visitors. They’ve got to cooperate and take reasonable care of themselves and look out for each other, which is all very important.

And as it says, and this is a quote from the CoP, “A person can have more than one duty at the same time, and more than one person can share the same duty”. So, you can’t go playing tag, as it were. A sort of a responsibility tag. ‘It wasn’t me. It was him. Governor!’ The court ultimately decides who is responsible.

A Four-Step Process

So, in our four-step process, we have; first of all, we have to identify hazards. We have to assess the risks. So, we need to look at causes and consequences. And the CoP doesn’t say this, but exposure comes into it as well. So, a risk might be present, but if nobody is exposed to that risk, then you can’t hurt them. So, that’s an important point to remember. And controlling exposure is important to one degree or another in almost all areas, but very important in certain industries. Those industries that have got the real estate to be able to separate the risky thing from the human and this is very useful. So step three, we have to control risks. And then step four, we have to review control measures because it’s recognized that these control measures will be in place for some time, for the lifetime of whatever it is we’re doing or undertaking. So, they need to be periodically reviewed and there’s guidance on that.

Now, I keep saying guidance – take a look at the introduction to Codes of Practice and you will see why Codes of Practice are a bit more than guidance. They are guidance that you cannot afford to ignore because if things go wrong, you will get hung out to dry based on what CoP said you should have done. So, if you are ignorant of what CoP said and haven’t done it, then you’re stuffed basically before you even start. That’s point one to note.

And secondly, you’ll notice in the diagram on the left, we’ve got management commitment at the centre and we’ve got consultation all the way around. And there’s another Code of Practice, the Code of Practice on Communication, Cooperation and Coordination . So the C,C&C CoP and that is the other CoP that is essential. So, this one and the C, C and C CoP you must have a look at because they apply to everything in effect. Let’s move on.

Step 1, Identify Hazards

So, first of all, we need to identify hazards. Now, CoP is written for any Australian business or undertaking, so it’s pretty basic. It’s pretty pragmatic, but it’s pretty basic and it’s got a workplace focus. So, it says inspect the workplace, look around, talk to your workers. Now, I work in a business and day job for a consultancy where we, generally speaking, are not looking at an existing workplace, but we’re helping a customer buy or assure a complex product that’s going to come into service at some time in the future. So, there are no current workers to discuss, but we always do try and include end-user representatives in our safety workshops. So, you may not be able to consult workers directly, but you should try and include people who have relevant work experience.

Secondly, the CoP tells us to use good work design and safe design. Now that’s a whole topic in itself and I’ve got some guidance on safe design. If you go to that safety artisan.com page on safe design (www.safetyartisan.com/welcome/safe-design), you will see it and I’ll take you through the subject and refer you on to the source material itself.

Thirdly, we need to consult supply chains and networks. I think that works two ways. First of all, when you get people to supply you stuff, make sure that they supply the data that you need. The safety data, all the information that you need to take and use the product safely. And that’s part of the duty on all of these duty holders, on the designer, the manufacturer, the importer, the supplier. They all have duties to pass on the relevant safety information but make sure you ask for it in your contract. And secondly, suppliers, particularly if you’re buying an expensive piece of kit off them, suppliers can be an excellent source of information. If they’re the designers, then they know this kit better than anybody else. Make use of their expertise, contract them to do some work for you and take part of the load off you. They are best placed to do some of the work, so get them to do it.

And then fourthly, it says review available information. Now, this is very important. There’s historical information or there should be – it’s not always easy to come by sometimes. Do make the effort to get actual historical information for your piece of kit, maybe from the supplier. Or if you can’t do that, if it’s a new piece of kit, then try and get information on similar equipment, or services, or functionality, or go to a trade organization, or go to the regulator depending on what domain you’re in. Do look around for historical information. It is out there. It can be hard to find, but it is worth the effort because, again, the guidance requires it. So, if you don’t do it, if you don’t bother or you’ve not made reasonable efforts to do so, you’ll get clobbered if things go wrong.

And then it’s also advisable to compliment that historical information with diverse approaches. One of them is you can use a hazard checklist approach, and we talk about that in the session on preliminary hazard identification. There are lots of checklists freely available out there on the Internet. Some are general and some are more specific to different pieces of kit or different domains. Try and find the most relevant one for you and use it. And then maybe there are specific safety analyses techniques that you can use as well so have a go at those. And a lot of them are quite simple so don’t be put off. You don’t have to necessarily have to get an expensive consultant in to do this for you. A lot of these techniques are really quite simple and just require a bit of imagination and a little bit of self-discipline in the way you go about it. And I talk about analysis methods for hazard identification in that same session on Preliminary Hazard Identification (PHI).  

So, that’s identifying hazards.

Step 2, Assess Risks

Step two, we need to assess the risks. So, if we recall risk is a combination of likelihood and severity. So, how likely is the harm could arise? And how severe is that harm? The way to do that, the CoP says, is to work out how hazards may cause harm. And as always, don’t be afraid to ask the dumb questions. That’s part of my job as a consultant. You’re allowed to turn up and ask dumb questions. Or maybe sensitive questions that nobody in the firm dares to ask because they think they get fired. So, be brave and do try and work out how to ask the questions in a non-threatening way, but do ask the questions.

Work out how severe the harm could be. What is the worst credible consequence? And also, to keep it simple, what’s the worst direct consequence? Yes, you can come up with a fanciful chain of events that will lead to ‘it’s the end of the world as we know it’, but keep it direct would be my advice. At least to start with. It’s better to get a range of stuff than to work one scenario to the nth degree, I would suggest.

Then work out the likelihood of that harm occurring. Very often the most severe harm can only occur when there is a particular combination of circumstances. And if you read any kind of accident report, even in the press, you’ll very often say this was happening and it just so happened on this particular day that somebody wasn’t available to supervise and then this went wrong and something else went wrong. And then the final result of this chain of consequences was somebody gets hurt. So, do factor in all of those things.

There are probably lots of existing controls already unless you’re doing something very novel indeed, which is unusual. So, do look at what’s there and record it all. Conversely, do be aware of the ‘it will never happen brigade’ is I’ve met several people who say, ‘Oh, that will never happen; or was it ‘No British pilot would be stupid enough to do that. Ho, ho, ho.’ I was foolish enough to believe that. Anyway, that’s another story. So, don’t believe the people who say, ‘It can never happen’. Well, if I say, ‘OK, what’s the justification? Why can it never happen? Where’s the evidence for that claim?’ So, do dig into those responses.

There’s more detail in the Code of Practice. There are some good questions to ask in the workplace. And with a bit of imagination, you can take your imaginary piece of kit and sort of think about it in the workplace and go, ‘Well, let’s think up a suitable question.’ So, there’s good guidance in there. Historical data can’t be beat as a reality check and it shuts up the naysayers as well because if you can pull out information, say, ‘Well this accident has happened and it’s happened lots of times to lots of good people who thought they were clever’. So, it shuts up the naysayers do work hard to get the historical data. It’s fantastic if you can get it.

And then, as I said before, there are multiple specialist cause and consequence analysis techniques available. I talk about some of them and in other posts that I’ve already done, and I will talk about more in the future. But you may not need that level of sophistication. It’s always better to do some good basic work as early as you can. Then maybe if you come up against something and say, ‘We’re not cracking this. We suspect there’s a problem, but we can’t be sure’ then think about bringing out big guns. But if you’ve done the basic work first, that will really help you zero in on the areas where you think you need to do more work.

Step 3, Control Risks

The third one, controlling risks. Really, this is what it’s all about because you can do all the analysis you like, but you don’t do analysis for the sake of it. You do analysis in order to inform your selection of risk controls. And we are required to use a hierarchy of control measures, and that’s a legal requirement in Australia. It’s also a requirement in other jurisdictions and in other many other standards – safety standards that you’ll see it just may not be called this. But it will talk about more and less effective controls.

At the top of the control hierarchy, we’ve got the most effective control which is to eliminate the risk entirely. And by that, I mean you get rid of it. Let’s say you’re working in an explosive atmosphere and you’ve decided you don’t want any electrical devices in that explosive atmosphere. So, if you need to have power for machinery, you’re going to do it with pneumatics, let’s say, or hydraulics. So, you’ve eliminated the electrical risk. Elimination does not mean massaging the probability figures to get them very low and then you have eliminated the risk you have not. You’ve just played games with probability figures. So first off, that’s what elimination really means.

The second level, you’ve got three choices. We can substitute something hazardous with a safer alternative. I’ve mentioned getting rid of electricity entirely. You could say, ‘Well, I’ve got hydraulics, but they can burst and cause damage so I’ll have something else. Or let’s say there was a particular lubricant, which is ideal, but actually it’s quite dangerous this lubricant, so we’ll pick something safer. Maybe it doesn’t perform quite as well. Or a refrigerant, let’s say, an ideal refrigerant might be a potent greenhouse gas so we go ‘We’re going to have something else instead’.

You can isolate the hazard from people – I’ve spoken about that before. Some industries you’ve got a lot of real estate to play with. You can keep the hazard away from people. Or you can reduce the risk through engineering controls. And by engineering controls, I mean, you can build a safety feature or an interlock or something physically into the product. You’re not relying on a person to avoid the risk. It’s been done for them. It’s automatic or built-in.

At third level, we can use admin controls. So we can give people procedures and rules and we can say, ‘Do this, don’t do that’. And most of the time they’ll probably do it and obey the rules, but sometimes they won’t. And sometimes for good reason, by the way, because people come up with ridiculous rules that can’t be obeyed or that make the task or the job so difficult that people break the rules all the time because that’s the only way to get the job done effectively. So, do be aware of putting silly controls onto people because they won’t get obeyed. It’s your responsibility to consult the workers and come up with something practical.

And then finally, we can use personal protective equipment. Now that doesn’t do anything to the probability of the accident, but it reduces the severity. So, for example, if I’m wearing a hard hat, something falls on my head. It reduces the severity of the accident. If I’m wearing protective goggles and there’s a spark or a piece of debris flies out of the machine. If I’m wearing the goggles, it just bounces off probably and saves my eyes. So, there’s a couple of really good examples of where the PPE will help us. And of course, in this season of COVID, we’ve all got PPE bonkers. It’s become headline news all over the world. So, we all now know what PPE is, which is great. Well, and it’s not great. It’s terrible, but it’s good for knowledge.

So, we have to work through that hierarchy in that order. We have to see whether it’s feasible to eliminate the risk to start at the top with the most effective controls and work our way down. We have to do that. And the subject of another chat, another lesson, we have to apply all reasonably practical controls in order to say that we have eliminated or minimized risks SFARP. So far as is reasonably practicable. So, we’ve got to apply all reasonably practical controls. I’ll explain exactly what that means in a separate session.

Aside: Control Effectiveness

A Quick aside: are controls effective? I’ve sort of hinted at this before about the admin stuff. How do we get effective controls? Well, the CoP says we need people to be accountable for health and safety. We need maintenance of plant and equipment. We need up to date training and competency for our people. We need up to date hazard information – that’s a duty in its own right. And we need regular review and consultation. And you’ll find out about that in the CC&C CoP in my next lesson.

Now, these things are required everywhere, they can be achieved informally. If you work in a high-risk industry, you’ll probably have a thing called a safety management system. And your safety management system will be documented in a safety management plan. And typically, the safety management system is the thing that delivers all of these things, all five of these things and much more. So, that’s what you’ll probably end up doing.

First thing to say on that, of course, is that this information has got to be generated. You’ve got to get it from source and it’s usually the designer, the manufacturer, and the installer, and the testers who can provide this information. So, do make sure that you are imposing requirements on your suppliers, on your subcontractors to do this stuff and to provide you with the information. It is their duty to do so. It’s a legal duty, but you’re probably still going to have to pay for it and say when you want it and in what format that’s most useful to you and all the other good stuff.

Step 4, Reviewing Controls

Step four, which is maybe not so obvious. We’ve got some controls, we’re up and running, we need to review those controls. Well, why would we review them? First of all, if you’ve discovered that the control measure is not effective. So, you might have had some incident data., you might’ve had some near misses. Or you might have some reliability data that says ‘My control isn’t as reliable as I thought it was going to be’. But of course, to be aware of that, you’ve got to be collecting this information and you’ve got to be on the lookout for it.

So, you do need a workable incident reporting system and you do need to encourage people to use it and use it either anonymously or honestly. So, that’s where a good safety culture comes in, where you do not punish people for telling the truth. Where you encourage and reward them for the reporting stuff and making things better, you champion. And that’s where management commitment comes in.

The other point where the guidance says you have to do it is if you’re making any kind of change that’s likely to alter or give rise to new risks and you suspect that the existing control measures may not be effective. So, you’re going to make some kind of change – you’ve got to review what you’re doing. But of course, how would the PCBU know that unless they’d actually sort of basically documented the baseline situation? So, you’ve got to have some kind of control over your workplace or over your product or functionality to know what your current situation is and to know that a change is coming. You’ve got to have some kind of baseline control and change control to be able to do that. As I say, it doesn’t have to be that complicated, you just control what goes on at the workplace.

You’ve got to do it if you’ve identified a new hazard or risk. Once you’ve identified something, you’ve got to kind of start from scratch. But that’s okay because hopefully, you’ve already got all of the background analysis that you’ve done. So, you know what you’ve done in the past and therefore you can spot what the delta is. I’m anticipating the record-keeping, but this is where good record keeping really helps you when it comes to managing change. Because if you’ve documented the baseline and understand it, change is relatively straightforward.

Another reason, maybe you’ve consulted with workers or health and safety representatives and you’ve discovered those consultations suggest that a review is necessary. Or maybe a health and safety representative requests a review. In that case, you need to do one.

So those are the five cases where you must conduct a review of controls in order to keep things safe. And very often that’s how accidents occur. We start pretty well and then over a period of time, maybe years or decades, slowly our performance degrades over time or we get a bit blasé about stuff because we’ve never had a problem or so we think. If you’ve got poor incident and near-miss reporting, you won’t be aware of the problems that are happening. So, things slide over time so maybe it’s a good idea to have a periodic review even if you haven’t had any of these triggers. So, that’s a good idea as well. I don’t think it’s in the Code of Practice, but it’s sensible.

Keeping Records

Those are the four steps. Now let’s talk about these three other things, the first of which is keeping records. As it says, keeping records demonstrates what you have done. So, if you have a problem and the regulator comes round to inspect you or maybe even consider shutting you down or issuing a notice to improve or prohibition, then the fact that you’ve got some documentation is going to help you. And also helps you with downstream risk management activities, as I’ve just said.

Then also, there are some specific recordkeeping requirements for particular hazards. So, if you’re exposing people to noise or certain chemicals that may accumulate in the body, then you’re almost certainly going to have to have a monitoring program and a tracking program to keep an eye on this stuff and monitor people’s exposure. So, if you if you’ve got those particular hazards, then there’s going to be some very specific requirements on you that you have to meet and you must keep the records for the time periods required. In general, I would advise keeping the records for at least the life of the system, equipment service, whatever it is, and then a few years afterwards. Just in case there’s an issue that emerges later on. Exactly what you do is up to you.

And from a pragmatic point of view, I would say from experience precision and clarity in record-keeping is so important. Work hard on precision. It might sound like you’re being a bit anal about the way you record stuff if you feel you’re overdoing it, believe me, you are not. Make it simple. Make it crystal clear what you mean. Be very specific and precise as you can and then your records will be a lot more use. I put my hand up and say I’ve written stuff down and then a couple of years or even a few months later, I’ve gone back to something I’ve written down and thought, ‘What did I mean by that?’ Ambiguity is very easy to achieve so write some stuff down. Get somebody else to independently look at it for you and say’ What do you understand that to mean?’ Because English, unfortunately, is a very ambiguous language, very flexible.

Appendices

So, going back to the CoP, in particular, there are four appendices to the CoP. First of all, in A there’s a glossary of terms, which is very useful. Appendix B, we got some examples of a risk management process. Appendix C, there’s some help and guidance on assessing how things can go wrong. And then in Appendix D, there is a sample format blank risk register for you to use if you haven’t got anything else. And all of these examples and appendices, they are simple. They are workplace focused. As I say, if you work in a high-risk domain, maritime, aviation, you work with flammable chemicals or a big industrial plant, the CoP is not going to be sophisticated enough for your use. You’re going to have to meet and exceed it but you’re probably going to be using a standard that requires far more than what the CoP asks for. And that’s okay.

Detailed Requirements

But looking at it the other way around, the CoP is where everybody needs to start and there are some detailed requirements in each Code of Practice. And in this one, the words ‘must’, ‘requires’ or ‘mandatory’ tell you that there is a legal requirement that must be complied with. There are 35 ‘musts’, 39 ‘required’ of various kinds, and three instances are ‘mandatory’ in this Code of Practice. So, you’ve got to obey them.

Then there’s the word ‘should’, which indicates a recommended course of action and ‘may’ is an option. There are 43 ‘shoulds’ in this document and 82 ‘mays’. Again, my advice would be if it’s a ‘should’, I would do it unless you’ve got a reason not to. In which case you should probably write down why you’re not doing it. And that’s perfectly okay. If it isn’t going to work in your circumstances, or you don’t think it’s reasonable to do something, or you’ve got another way of doing it, which is better. Great. Do that, write it down.

And then the ‘mays’ are options so if you think they’re going to be useful and helpful, do it. If not, you don’t have to. There’re the different levels of compliance that you’ve got in the Code of Practice. And those three levels are in all the Codes of Practice.

Commentary

So, I’ve gone through what’s in the Code of Practice, I’m just going to give you a brief resumé of what I think is good advice based on personal and practical experience. I’ve said it already, but a quick reminder, Code of Practice provide minimum requirements. So, you do need to start with CoP and probably as the risk gets higher in whatever industry you’re in, you need to do more with higher-risk or to manage higher-risk.

It does have a workplace focus, so it isn’t a lot to use if you’re a designer and you’re trying to work out ‘What safety margins do I need? I need to do a design trade-off’. I know I’ve sort of leaked into the final point. The CoP won’t help you do that. You’ll need a more sophisticated approach, probably based on standards and tolerability. So, the CoP won’t help you with this sophisticated design decisions and trade-offs, and how much margin is enough. You’re probably going to have to go to standards and industry good practice for that.

And, really, what we’re now talking about is, are the risks are SFARP. Have we done everything that’s reasonably practicable? So first of all, have we done enough? Look at the definition of reasonably practicable, which is in Section 18 of the WHS Act. And if you look at that definition, you’ll find that it is a risk assessment process. So, by following the risk management CoP, the risk assessment process, you will have inherently begun to address SFARP. And you need to do that to demonstrate that you reduce risks SFARP. Then deciding how much is enough, well that depends on the particular risk. A simple approach may suffice and for most instances, for some risks can have to do some more sophisticated work. Which will take you beyond the bounds of the CoP.

And then the last point I’m going to make is the Codes of Practice, not just this one but all of them will repay careful reading. There are some detailed requirements in there and they contain lots of good, sensible, pragmatic advice. And if you have to write a safety management plan or a hazard management plan, then do go to CoP and steal the wording. Don’t make stuff up when you don’t have to. If the CoP tells you what to do and that’s part of your solution just copy and paste it. Use it – you’re allowed to!

Do pay attention to the copyright where you go to do make sure you get the right version of CoP for your jurisdiction. So, if it’s a federal workplace you need the Commonwealth version of CoP. If it’s commercial, then you probably state and territory. So, go to the correct regulator’s website, find the right CoP. You will probably find that the copyright allows you to copy and paste absolutely everything out of the CoP. So, do that and save yourself some work. And also, if you’ve done that it’s very easy to demonstrate that you’ve met the requirements of CoP because you’ve copied them. What could be easier? Save yourself some hassle.

As a consultant, I never make up anything unless I can’t possibly avoid it. So, do use the stuff out there because CoP has been developed for you by a bunch of people in consultation. Lots of people have put a lot of hard work into coming up with a good CoP, which is authorised by the relevant government minister. So, use it, don’t ignore it. It’s there to help you.

Copyright & Attribution

Now, I’ve mentioned that you can dig this stuff out of the right website, and that’s exactly what I’ve done. So, any words that you see in italics, in speech marks, I have lifted from the Federal Register of legislation and I’m allowed to do so under the terms of the Creative Commons license. And as part of the terms of that license, I’m required to tell you that I got this stuff on the 15th of August 2020. But you should always go to the www.legislation.gov.au website to check that you’re using the latest version. Don’t rely on what I’ve said, go and check you using the latest version. And for more information on what you can and can’t do with this Creative Commons license, I’ve got a page at the Safety Artisan that sets out what my obligations are and you’ll be able to see that I’ve met them.

For More…

And then for more information, if you’d like to get free video lessons on safety and free previews of paid content, do please go look at the Safety Artisan channel on YouTube and hit that subscribe- Yes, please! And you will then be informed of whenever a new video comes out which you believe you will find very helpful. And then for all lessons and resources, you can go to www.safetyartisan.com. And as you can see, it’s a secure website, so you’re safe to browse there. Go and have a look at the stuff that’s on there. This lesson is there, as are many others.

End

So that’s the end of our lesson for today, and we’ve gone on for almost 40 minutes. That’s because there’s a lot of good stuff out there to talk about. So just remains me to say thanks very much for tuning in and bothering to listen to this. Thank you for supporting the Safety Artisan. Your subscription, your money, enables me to carry on doing this stuff, and I hope you and many others will find it helpful. So, thanks very much. Bye-bye.

End: Risk Management Code of Practice

You can find the Model Code of Practice here.  Back to the Topics Page.