Tag: Australian-WHS

Australian vs. UK Safety Law

Post author By Simon Di Nucci
Post date September 7, 2022
2 Comments on Australian vs. UK Safety Law

This post, Blog: Australian vs. UK Safety Law compares the two approaches, based on my long experience of working on both sides.

Are you a safety professional thinking of emigrating from the UK to Australia? Well, I’ve done it, and here’s my BREXIT special guide! In this 45-minute video, The Safety Artisan looks at the similarities and differences between British and Australian safety practices. This should also help Aussies thinking of heading over to work in the UK and even, dare I say it, to the EU…

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

Blog: Australian vs. UK Safety Law, Key Points

Introduction. With BREXIT looming, British and Australian professionals may be thinking of working in each other’s countries;
Legislation. Our laws, regulations and codes of practice are quite similar;
Guidance. Try the UK Health and Safety Executive (HSE) or the Safe Work Australia websites – both are excellent;
Jurisdictions. This is complex in a federated state like Australia, so Brits need to do their homework;
Regulators. This varies by industry/domain – many are very similar, while some are quite different;
Cultural Issues: Australia vs. the UK. Brits and Aussies are likely to feel quite comfortable working in each other’s countries; and
Cultural Issues: Australia vs. the EU. There are some commonalities across the EU, but also dramatic differences.

Blog: Australian vs. UK Safety Law: The Transcript

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!

Blog: Australian vs. UK Safety Law: The End!

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Work Health and Safety

Consultation, Cooperation & Coordination CoP

Post author By Simon Di Nucci
Post date November 21, 2020
No Comments on 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.

Tags Australian-WHS, Codes-of-Practice, Consult, Cooperate, Coordinate, WHS-Code-of-Practice

Safe Design

Safe Design (Full)

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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.

A free video on ‘Good Work Design‘ is available here.

This is the three-minute demo of the full, 52-minute-long video.

buy the full-length video here

Topics: Safe Design

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.

Transcript: Safe Design

Click Here to Reveal the Transcript

Hello, everyone, and welcome to the Safety Artisan, where you will receive safety training via instructional videos on system safety, software safety and design safety. Today I’m talking about design safety. I’m Simon and I’m recording this on the 12th of January 2020, so our first recording of the new decade and let’s hope that we can give you some 20/20 vision. What we’re going to be talking about is safe design, and this safe design guidance comes from Safe Work Australia. I’m showing you some text taken from the website and adding my own commentary and experience.

Topics

The topics that we’re going to cover today are: a safe design approach, five principles of safe design, ergonomics (more broadly, its human factors), who has responsibility, doing safe design through the product lifecycle, the benefits of it, our legal obligations in Australia (but this is good advice wherever you are) and the Australian approach to improving safe design in order to reduce casualties in the workplace.

Introduction

The idea of safe design is it’s about integrating safety management, asset identification and risk assessment early in the design process to eliminate or reduce risks throughout the life of a product, whatever the product is, it might be a building, a structure, equipment, a vehicle or infrastructure. This is important because in Australia, in a five-year period, we suffered almost 640 work-related fatalities, of which almost 190 were caused by unsafe design or design related factors contributed to that fatality., there’s an important reason to do this stuff, it’s not an academic exercise, we’re doing it for real reasons. And we’ll come back to the reason why we’re doing it at the end of the presentation.

A Safe Design Approach #1

First, we need to begin safe design right at the start of the lifecycle (we will see more of that later) because it’s at the beginning of the lifecycle where you’re making your bad decisions about requirements. What do you want this system to do? How do we design it to do that? What materials and components and subsystems are we going to make or buy in order to put this thing together, whatever it is? And thinking about how we are going to construct it, maintain it, operate it and then get rid of it at the end of life., there are lots of big decisions being made early in the life cycle. And sometimes these decisions are made accidentally because we don’t consciously think about what we’re doing. We just do stuff and then we realise afterwards that we’ve made a decision with sometimes quite serious implications. And, a big part of my day job as a consultant is trying to help people think about those issues and make good decisions early on when it’s still cheap, quick and easy to do. Because, of course, the more you’ve invested into a project, the more difficult it is to make changes both from a financial point of view and if people have invested their time, sweat and tears into a project, they get very attached to it and they don’t want to change it. there’s an emotional investment made in the project. the earlier you get in, at the feasibility stage let’s say, and think about all of this stuff the easier it is to do it. A big part of that is where is this kit going to end up? What legislation codes of practice and standards do we need to consider and comply with? So that’s the approach.

A Safe Design Approach #2

So, designers need to consider how safety can be achieved through the lifecycle. For example, can we design a machine with protective guarding so that the operator doesn’t get hurt using it, but also so the machine can be installed and maintained? That’s an important point as often to get at stuff we must take it apart and maybe we must remove some of those safety features. How do we then protect and maintain when the machine is maybe opened up, and the workings are things that you can get caught in or electrocuted by. And how do we get rid of it? Maybe we’ve used some funky chemicals that are quite difficult to get rid of. And Australia, I suspect like many other places, we’ve got a mountain of old buildings that are full of asbestos, which is costing a gigantic sum of money to get rid of safely. we need to design a building which is fit for occupancy. Maybe we need to think about occupants that are not able bodied or they’re moving stuff around in the building they don’t want to and need a trolley to carry stuff around. we need access, we need sufficient space to do whatever it is we need to do.

This all sounds simple, obvious, doesn’t it? So, let’s look at these five principles. First of all, a lot of this you’re going to recognise from the legal stuff, because the principles of safe design are very much tied in and integrated with the Australian legal approach, WHS, which is all good, all consistent and all fits together.

Five Principles of Safe Design

Principle 1: Persons with control. If you’re making a decision that affects design and products, facilities or processes, it is your responsibility to think about safety, it’s part of your due diligence (If you recall that phrase and that session).

Principle 2: We need to apply safe design at every stage in the lifecycle, from the very beginning right through to the end. That means thinking about risks and eliminating or managing them as early as we can but thinking forward to the whole lifecycle; sounds easy, but it’s often done very badly.

Principle 3: Systematic risk management. We need to apply these things that we know about and listen to other broadcasts from The Safety Artisan. We go on and on and on about this because this is our bread and butter as safety engineers, as safety professionals – identify hazards, assess the risk and think about how we will control the risks in order to achieve a safe design.

Principal 4: Safe design, knowledge and capability. If you’re controlling the design, if you’re doing technical work or you’re managing it and making decisions, you must know enough about safe design and have the capability to put these principles into practice to the extent that you need to discharge your duties. When I’m thinking of duties, I’m especially thinking of the health and safety duties of officers, managers and people who make decisions. You need to exercise due diligence (see the Work Health and Safety lessons for more about due diligence).

Principle 5: Information transfer. Part of our duties is not just to do stuff well, but to pass on the information that the users, maintainers, disposers, etc will need in order to make effective use of the design safely. That is through all the lifecycle phases of the product.

So those are the five principles of safe design, and I think they’re all obvious really, aren’t they? So, let’s move on.

A Model for Safe Design

As the saying goes, is a picture is worth a thousand words. Here is the overview of the Safe Design Model, as they call it. We’ve got activities in a sequence running from top to bottom down the centre. Then on the left we’ve got monitor and review, that is somebody in a management, controlling function keeping an eye on things. On the right-hand side, we need to communicate and document what we’re doing. And of course, it’s not just documentation for documentation sake, we need to do this in order to fulfil our obligations to provide all the necessary information to users, etc. that’s the basic layout.

If we zoom in on the early stage, Pre-Design, we need to think about what problem are we trying to solve? What are we trying to do? What is the context for our enterprise? And that might be easy if you’re dealing with a physical thing. If you build a car, you make cars to be driven on the road. there’ll be a driver and maybe passengers in the car, there’ll be other road users around you, pedestrians, etc. with the physical system, it’s relatively easy with a bit of imagination and a bit of effort to think about who’s involved. But of course, not just use, but maintenance as well. Maybe it’s got to go into a garage for a service etc, how do we make things accessible for maintainers?

And then we move on to Concept Development. We might need to do some research, gather some information, think about previous systems or related systems and learn from them. We might have to consult with some people who are going to be affected, some stakeholders, who are going to be affected by this enterprise. We put all of that together and use it to help us identify hazards. Again, if we’re talking about a physical system, say if you make a new model of car, it’s probably not that different from the previous model of a car that you designed. But of course, every so often you do encounter something that is novel, that hasn’t been done before, or maybe you’re designing something that is virtual like software and software is intangible and with intangible things it’s harder to do this. It requires a bit more effort and more imagination. It can be done, don’t be frightened of it but it does require a bit more forethought and a bit more effort and imagination than is perhaps the case with something simple and familiar like a car.

Moving on in the life cycle we have Design Options. We might think about several different solutions. We might generate some solutions; we might analyse and evaluate the risks of those options before selecting which option we’re going to go with. This doesn’t happen in reality very often, because often we’re designing something that’s familiar or people go, well actually I’m buying a bunch of kit off the shelf, (i.e. a bunch of components) and I’m just putting them together, there is no optioneering to do. That’s actually incorrect, because very often people do optioneering by default, in that they buy the component that is cheap and readily available, but they don’t necessarily say, is the supplier going to provide the safety data that I need that goes along with this component? And maybe the more reputable supplier that does do that is going to charge you more. you need to think about where are you going to end up with all of this and evaluate your options accordingly. And of course, if you are making a system that is purely made from off-the-shelf components, there’s not a lot of design to do, there is just integration.

Well that pushes all your design decisions and all your options much earlier on in the lifecycle, much higher up on the diagram as we see here. we are still making design options and design decisions, but maybe it’s just not as obvious. I’ve seen a lot of projects come unstuck because they just bought something that they like the look of, it appealed to the operators (If you live in an operator driven organisation, you’ll know what I mean).me people buy stuff, because they are magpies and it looks shiny, fun and funky. Then they buy it and people like me come along and start asking awkward questions about how are you going to demonstrate that this thing is safe to use and that you can put it in service? And then, of course, it doesn’t always end well if you don’t think about these things up front.

So, moving on to Design Synthesis. We’ll select a solution, put stuff together, work on controlling the risks in the system that we are building. I know it says eliminating and control risks, if you can eliminate risks that’s great, very often though you can’t. we have to deal with the risks that we cannot get rid of and there are usually some risks in whatever you’re dealing with.

Then we get to Design Completion, where we implement the design, where we put it together and see if it does come together in the real world as we envisaged it. That doesn’t always happen. Then we have got to test it and see whether it does what it’s supposed to do. We’re normally pretty good at testing it for that, because if you set out requirements for what it’s supposed to do, then you’ve got something to test against. And of course, if you’re trying to sell a product or service or you’re trying to get regulators or customers to buy into this thing, it’s got to do what you said it’s going to do. there’s a big incentive to test the thing to make sure it does what it should do. We’re not always so good at testing it to make sure that it doesn’t do what it shouldn’t do. That can be a bigger problem space depending on what you’re doing. And that is often the trick and that’s where safety get involved. The Requirements Engineers, Systems Engineers are great at saying, yeah, here’s the requirements test against the requirements. And then it’s the safety people that come along and say, oh, by the way, you need to make sure that it doesn’t blow up, catch fire, get so hot that you can burn people. You need to eliminate the sharp edges. You need to make sure that people don’t get electrocuted when operating or maintaining this thing or disposing of it. You must make sure they don’t get poisoned by any chemicals that have been built into the thing. Even thinking about if I had an accident in the vehicle, or whatever it is that has been damaged or destroyed, and I’ve now got a debris spread across the place, how do we clear that up? For some systems that can be a very challenging problem.

Ergonomics & Work Design

So, we’re going to move on now to a different subject, and a very important subject in safe design. I think this is one of the great things about safe design and good work design in Australia – that it incorporates ergonomics. we need to think about the human interaction with the system, as well as the technical design itself, and I think that’s very important. It’s something that is very easy, especially for technical people, to miss. As engineers some of us love diving into the detail, that’s where we feel comfortable, that’s what we want to do, and then maybe we miss sometimes the big picture – somebody is actually going to use this thing and make it work. we need to think about all of our workers to make sure that they stay healthy and safe at work. We need to think about how they are going to physically interact with the system, etc. It may not be just the physical system that we’re designing, but of course, the work processes that go around it, which is important.

It is worth pointing out that in the UK I’m used to a narrow definition of ergonomics. I’m used to a definition of ergonomics that’s purely about the physical way that humans interact with the system. Can they do so safely and comfortably? Can they do repetitive tasks without getting injured? That includes anthropomorphic aspects, where we think about the variation in size of human beings, different sex’s, different races. Also, how do people fit in the machine or the vehicle or interact with it. But, the way that in Australia we talk about ergonomics is it’s a much bigger picture than that. I would say don’t just think about ergonomics, think about human factors. It’s the science of people working. let’s understand human capabilities and apply that knowledge in the design of equipment and tools and systems and ways of working that we expect the human to use. Humans are pretty clever beasts in many ways and we’re still very good at things that a lot of machines are just not very good at. we need to design stuff which compliments the human being and helps the human being to succeed, rather than just optimising technical design in isolation. And this quotation is from the ARPANSA definition because it was the best one that I could find in Australia. I will no doubt talk about human factors another time in some depth.

Responsibilities

Under the law, (this is tailored for Australian law, but a lot of this is still good principles that are applicable anyway) different groups and individuals have responsibilities for safe design. Those who manage the design and the technical stuff directly and those who make resourcing decisions. For example, we can think about building architects, industrial designers, drafts people who create the design. Individuals who make design decisions at any lifecycle phase, that could be a wide range of people and of course not just technical people, but stakeholders who make decisions about how people are employed, how people are to interact with these systems, how they are to maintain it and dispose of it, etc. And of course, work health and safety professionals themselves. there’s a wide range of stakeholders involved here potentially. Also, anybody who alters the design, and it may be that we’re talking about a physical alteration to design or maybe we’re just using a piece of kit in a different context. we’re using a machine or a process or piece of software that was designed to do X, and we’re actually using it to do Y, which is more common than you might think. if we are not putting an existing design in a different context, which was never envisaged by the original designers, we need to think about the implications of both the environment on the design and the design on the environment and the human beings mixed up working in both. There’s a lot of accidents caused by modifying bits of kit, some might call it a signature accident in the U.K.: the Flixborough Chemical Plant explosion. That was one of the things that led to the creation of Molten Health and Safety in the UK and that was caused by people modifying a design and not fully realising the implications of what they were doing. Of course, the result was a gigantic explosion and lots of dead bodies. Hopefully it won’t always be so dramatic the things that we’re looking at, but nevertheless, people do ask designs to do some weird stuff.

If we want safe design, we can get it more effectively and more efficiently when people get together who control and influence outcomes and who make these decisions so that they collaborate on building safety into the design rather than trying to add on afterwards, which in my experience never goes well. We want to get people together, think about these things up front where it’s maybe a desktop exercise or it’s a meeting somewhere. It requires some people to attend the meeting and prepare for it and so on, and we need records, but that’s cheap compared to later design stages. When we’re talking about industrial plants or something that’s going to be mass produced, making decisions later is always going to be more costly and less effective and therefore it’s going to be less popular and harder to justify. get in and do it early while you still can. There’s some good guidance on all this stuff on who is responsible.

There’s the Principles of Good Work Design Handbook, which is created by Safe Work Australia and it’s also on the Safety Artisan Website (I gained permission to reproduce that) and there’s a model Code of Practice for safe design of structures. There was going to be a model Code of Practice for the safe design of plants, but that never became a Code of Practice, that’s just guidance. Nevertheless, there is a lot of good stuff in there. And there’s the Work, Health and Safety Regulations. And incidentally, there’s also a lot of good guidance on Major Hazard Facilities available. Major Hazard Facilities are anywhere where you store large amounts of potentially dangerous chemicals. However, the safety principles that are in the guidance for the MHF is very good and is generally applicable not just for chemical safety, but for any large undertaking where you could hurt a lot of people on that. MHF guidance I believe was originally inspired by the COMAH regulations in the UK, again which came from a major industrial disaster, Piper Alpha platform in the North Sea which caught fire and killed 167 people. It was a big fire. if you’ve got an enterprise where you could see a mass casualty situation, you’ll get a lot more guidance from the MHF stuff that’s really aimed at preventing industrial sized accidents. there’s lots of good stuff available to help us.

Design for Plant

So, examples of things that we should consider. We need to, (and I don’t think this will be any great surprise to you) think about all phases of the life cycle, I think we banged on about that enough. Whether it be plant (waste plant in this case), whatever it might be, from design and manufacture or right through to disposal. Can we put the plant together? Can we erect it or what structure and we install it? Can we facilitate safe use again? Again, thinking about the physical characteristics of your users, but not just physical, think about the cognitive thinking of your users. If we’re making control system, can the users use it to practically to exploit the plant for the purpose it was meant for whilst staying safe? What can the operator actually do, what can we expect them to perform successfully and reliably time after time because we want this stuff to keep on working for a long, long time, in order to make money or to do whatever it is we want to do. And we also need to think about the environment in which the plant will be used – very important.

Some more examples. Think about intended use and reasonably foreseeable misuse. If you know that a piece of kit tends to get misused for certain things, then either design against it or give the operator a better way of doing it. A really strange example, apparently the designers of a particular assault rifle knew that the soldiers tended to use a bit of the rifle as a can opener or to do stuff like that or to open beer bottles, so they incorporated a bottle opener in the design so that the soldiers would use that rather than damage the assault rifle opening bottles of beer. A crazy example there but I think it’s memorable. we have to consider by law intended use, if you go to the W.H.S lesson, you’ll see that’s written right through the duties of everybody, reasonably foreseeable misuse I don’t think is a hard requirement in every case, but it’s still a sensible thing to do.

Think about the difficulties that workers might face doing repairs or maintenance? Again, sorry, I banged on about that, I came from a maintenance world originally, so I’m very used to those kinds of challenges. And consider what could go wrong. Again, we’re getting back into classic design safety here. Think about the failure modes of your plant. Well, ideally, we always wanted a fail-safe, but if we can’t do that, well, how can we warn people? How can we make sure we minimise the risk if something goes wrong and if a foreseeable hazard occurs? And by foreseeable, I’m not just saying, well we shut ourselves in a darkened room and we couldn’t think of anything, we need to look at real world examples of similar pieces of kit. Look at real world history, because there’s often an awful lot of learning out there that we can exploit, if only we bother to Google it or look it up in some way. As I think it was Bismarck, the great German leader said only a fool learns from his own mistakes, a wise man learns from other people’s mistakes. that’s what we try and do in safety.

Product Lifecycle

Moving onto life cycle, this is a key concept. Again, we gone on and on and on about this. We need to control risks, not just for use, but during construction and manufacture in transit, when it’s being commissioned and tested and used and operated, when it’s being repaired, maintained, cleaned or modified. And then at the end of, I say the end of life, it may not be end of life when it’s being decommissioned. maybe a decommissioning kit, moving it to a new site or maybe a new owner has bought it. we need to be able to safely take it upon move and put it back together again. And of course, by that stage, we may have lost the original packaging. we may have to think quite carefully about how we do this, or maybe we can’t fully disassemble it as we did during the original installation. maybe we’ve got to move an awkward bit of kit around. And then at the end of life, how are we going to dismantle it or demolish it? Are we going to dispose of it, or ideally recycle it? Hopefully if we haven’t built in anything too nasty or too difficult to recycle, we can do that. that would be a good thing.

It’s worth reminding ourselves, we do get a safer product that is better for downstream users if we eliminate and minimise those hazards as early as we can. as I said before, in these early phases, there’s more scope in order to design out stuff without compromising the design, without putting limitations on what it can do. Whereas often when you’re adding safety in, so often that is achieved only at a cost in terms of it limits what the users can do or maybe you can’t run the plant at full capacity or whatever it might be, which is clearly undesirable. designers must have a good understanding of the lifecycle of their kit and so do those people who will interact with it and the environment in which it’s used. Again, if you’ve listened to me talking about our system safety concepts we hammer this point about it’s not just the plant it’s what you use it for, the people who will use it and the environment in which it is used. especially for complex things, we need to take all those things into account. And it’s not a trivial exercise to do this.

Then thirdly, as we go through the product life cycle, we may discover new risks, and this does happen. People make assumptions during the concept and design phase and fair enough you must make assumptions sometimes in order to get anything done. But those assumptions don’t always turn out to be completely correct or something gets missed, we missed some aspect often. It’s the thing you didn’t anticipate that often gets you. as we go through the lifecycle, we can further improve safety if people who have control over decisions and actions that are taken incorporate health and safety considerations at every stage and actually proactively look at whether we can make things better or whether something has occurred that we didn’t anticipate and therefore that needs to be looked into. Another good principle that doesn’t always happen, we shouldn’t proceed to the next stage in the life cycle until we have completed our design reviews, we have thought about health and safety along with everything else, and those who are control have had a chance to consider everything together. And if they’re happy with it, to approve it and it moves on. it’s a very good illustration. Again, it will come as no surprise to many listeners there are a lot of projects out there that either don’t put in design reviews at all or you see design reviews being rushed. Lip service is paid to them very often because people forget the design reviews are there to review the design and to make sure it’s fit for purpose and safe and all the other good things, and we just get obsessed with getting through those design reviews, whether we’re the purchaser, whether we’re just keen to get on with the job and the schedule must be maintained at all costs. Or if you’re the supplier, you want to get through those reviews because there’s a payment milestone attached to them. there’s a lot of temptation to rush these things. Often, rushing these things just results in more trouble further downstream. I know it takes a lot of guts, particularly early in a project to say, no, we’re not ready for this design review, we need to do some more work so that we can get through this properly. That’s a big call to make, often because not a lot of people are going to like you for making that call, but it does need to.

Benefits of Safe Design

So, let’s talk about the benefits. These are not my estimates, these are Safe Work Australia’s words, so they feel that from what they’ve seen in Australia and now surveying safety performance elsewhere, I suspect as well, that building safety into a plant can save you up to 10 percent of its cost. Whether it be through, an example here is reductions in holdings of hazardous materials, reduce need for personal protective equipment, reduce need filled testing and maintenance, and that’s a that’s a good point. Very often we see large systems, large enterprises brought in to being without sufficient consideration of these things, and people think only about the capital costs of getting the kit into service. Now, if you’re spending millions or even possibly billions on a large infrastructure project, of course you will focus on the upfront costs for that infrastructure. And of course, you are focused on getting that stuff into service as soon as possible so you can start earning money to pay for the capital costs of it. But it’s also worth thinking about safety upfront. A lot of other design disciplines as well, of course, and making sure that you’re not building yourself a life cycle, a lifetime full of pain, doing maintenance and testing that, to be honest, you really don’t want to be doing, but because you didn’t design something out, you end up with no choice. And so, we can hopefully eliminate or minimise those direct costs with unsafe design, which can be considerable rework, compensation, insurance, environmental clean-up. You can be sued by the government for criminal transgressions and you can be sued by those who’ve been the relatives of the dead, the injured, the inconvenienced, those who’ve been moved off their land. And these things will impact on parties downstream, not the designers. And in fact, often but not always, just the those who bought product and used it. there’s a lot of incentive out there to minimise your liability and to get it right up front and to be able to demonstrate they got it right up front. Particularly if you’re a designer or a manufacturer and you’re worried that some of your users are maybe not as professionals and conscientious using your stuff as you would like because it’s still got your name and your company logo plastered all over it.

I don’t think there’s anything new in here. there’s many benefits or we see the direct benefits. We’ve prevented injury and disease and that’s good. Not just your own, but other peoples. We can improve usability, very often if you improve safety through improving human factors and ergonomics, you’re going to get a more usable product that people like using, it is going to be more popular. Maybe you’ll sell more. You’ll improve productivity. those who are paying for the output are happy. You’ll reduce costs, not only reduce costs, (through life I’m talking about you might have to spend a little bit more money upfront), we can actually better predict and manage operations because we’re not having so many outages due to incidents or accidents. Also, we can demonstrate compliance with legislation which will help you plug the kit in the first place, but also it is necessary if you’re going to get past a regulator or indeed if you don’t want to get sent to jail for contravening the WHS Act. And benefits, well, innovation. I have to say innovation is a double-edged sword because some places love innovation, you’ll be very popular if you innovate. Other industries hate innovation and you will not be popular if you innovate. That last bullet, I’m not so sure it’s about innovation. Safety design, I don’t necessarily think it demands new thinking, it just demands thinking. Because most things that I’ve seen that are preventable, that have gone wrong and could have been stopped, it only required a little bit of thought and a little bit of imagination and a little bit of learning from the past, not just innovating the future.

Legal Obligations

So that brings us neatly on to think about our legal obligations. In Australia, and in other countries, there will be similar obligations, work, health and safety law impose duties on lots of people from designers, manufacturers, importers, suppliers, anybody who puts the stuff together, puts it up, modifies it, disposes of it. These obligations, as it says, will vary dependent on state or territory or whether Commonwealth W.H.S applies. But if it’s WHS, it’s all based on the model WHS from SafeWork Australia, so it will be very similar. In the W.H.S lesson, I talk about what these duties are and what you must do to meet them. You will be pleased to know that the guidance in safe design is in lock step with those requirements. this is all good stuff, not because I’m saying it but because I’m actually showing you what’s come out of the statutory authority.

Yes, these obligations may vary, we talk about that quite a lot and in other sessions. Those who make decisions, and not just technical people, but those who control the finances, have duties under WHS law. Again, go and see the WHS lesson than the talks about the duties, particularly the duties of senior management officers and due diligence. And there are specific safety due diligence requirements in WHS, which are very well written, very easy to read and understand. there’s no excuse for not looking at this stuff, it is very easy to see what you’re supposed to do and how to stay on the right side of the law. And it doesn’t matter whether you’re an employer, self-employed, if you control a workplace or not, there are duties on designers upstream who will never go near the workplace that the kit is actually used in. if a client has some building or structure designed and built for leasing, they become the owner of the building and they may well retain health and safety duties for the lifetime of that building if it’s used as a workplace or to accommodate workers as well.

Recap

I just want to briefly recap on what we’ve what we’ve heard. Safe design, I would say the big lesson that I’ve learned in my career is that safe design is not just a technical activity for the designers. I’ve worked in many organisations where the pedigree, the history of the organisation was that you had. technical risks were managed over here, and human or operational risks well managed over here, and there was a great a gulf between them, they never they never interacted very much. There was a sort of handover point where they would chuck the kit over the wall to the users and say, there, get on with it, and if you have an accident, it’s your fault because you’re stupid and you didn’t understand my piece of kit. And similarly got the operator saying all those technical people, they’ve got no idea how we use the kit or what we’re trying to do here, the big picture, they give us kit that is not suitable or that we have to misuse in order to get it to do the job.

So, if you have these two teams, players separately not interacting and not cooperating, it’s a mess. And certainly, in Australia, there is very explicit requirements in the law and regulations and the whole code of practice on consultation, communication and cooperation. these two units have got to come together, these two sides of the operation have got to come together in order to make the whole thing work. And WHS law does not differentiate between different types of risk. There is just risk to people, so you cannot hide behind the fact that, well I do technical risk I don’t think about how people will use it, you’ve just broken the law. you’ve got to think about the big picture, and you know, we can’t keep going on and on in our silence. A little bit of heart to heart, but that really, I think, is the value add from all of this. The great thing about this design guidance is that it encourages you to think through life, it encourages you to think about who is going to use it and it encourages you to think about the environment. And you can quite cheaply and quite quickly, you could make some dramatic improvements in safety by thinking about these things.

I’ve met a lot of technical people, if a risk control measure isn’t technical, if it isn’t highly complicated and involves clever engineering, then some people have got a tendency to look down their nose at it. What we need to be doing is looking at how we reduce risk and what the benefits are in terms of risk reduction, and it might be a really very simple thing that seems almost trivial to a technical expert that actually delivers the safety, and that’s what we’ve got to think about not about having a clever technical solution necessarily. If we must have a clever technical solution to make it safe, well, so be it. But, we’d quite like to avoid that most of the time if we can.

Australian Approach

Just to bring this to a close. Australia in the 10 years to 2022 has got certain targets. we’ve got seven national action areas, and safe by design or safe design is one of them. As I’ve said several times, Australian legislation requires us to consult, cooperate and coordinate, so far as is reasonably practicable. And we need to work together rather than chuck problems over the wall to somebody else. You might think you delegated responsibility to somebody else, but actually if you’re an officer of the person or conducting the business or undertaking, then you cannot ditch all of your responsibilities, so you need to think very carefully about what’s being done in your name because legally it can come back to you. you can’t just assume that somebody else is doing it and will do a reasonable job, it’s your duty to ensure that it is done, that you’ve provided the resources and that it is actually happening.

And so, what we want to do, in this 10-year period, is we want to achieve a real reduction, 30% reduction in serious injuries nationwide in that 10-year period and reduce work related fatalities by at least a fifth. these are specific and valuable targets, they’re real-world targets. This is not an academic exercise, it’s about reducing the body count and the number of people who end up in a hospital, blinded or missing limbs or whatever. it’s important stuff. And as it says, SafeWork Australia and all the different regulators have been working together with industry unions and special interest groups in order to make this all happen. that’s all excellent stuff.

End: Safe Design

And it just remains for me to say that most of the text that I’ve shown you is from the Safe Work Australia website, and that’s been reproduced under license, under Creative Commons license. You can see the full details on the safetyartisan.com website. And just to point out that the words, this presentation itself are copyright of The Safety Artisan and I just realised I drafted this in 2019, it’s copyright 2020, but never mind, I started writing this in 2019.

Now, if you want more videos please subscribe to the Safety Artisan channel on YouTube. And that is the end of the presentation, so thank you very much for listening and watching and from the safety artisan, I just say, I wish you a successful and safe 2020, goodbye.

Tags Australian-WHS, design-work, design-works, inherently-safer-design-principles, learn-safe-design, principles-safe-design, safe-design, safe-design-concept, safe-design-principles, what-are-the-5-design-principles, what-is-safe-design

Work Health and Safety

Guide to the 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. 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. So today we’re going to be talking about the Australian Federal Work Health and Safety Act and call it an unofficial guide or system or design safety practitioners whatever you want to call yourselves because I’m looking at the WHS Act from the point of view of system safety and design safety.

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

Topics

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

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

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

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

Disclaimer

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

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

The Object of the Act

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

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

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

Definitions

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

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

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

Exclusions

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

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

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

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

So Far As is Reasonably Practicable

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

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

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

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

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

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

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

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

The Primary Duty of Care

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

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

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

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

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

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

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

The Three Duties

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

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

Officers of the PCBU

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

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

Due Diligence

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

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

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

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

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

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

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

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

Consult, Cooperate and Coordinate

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

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

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

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

The Regulator

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

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

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

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

Safe Work Australia

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

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

Regulations and Codes of Practice

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

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

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

That’s All Folks!

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

Creative Commons Licence

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

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

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Tags Australian-WHS, Guidance, Guide, risk-assessment, risk-management, safety-training, WHS