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Work Health and Safety

Foreword to all Codes of Practice

This post covers the Foreword to all Codes of Practice. In the 30-minute video, we introduce Australian WHS Codes of Practice (CoP). We cover: What they are and how to use them; their Limitations; we List (Federal) codes; provide Further commentary; and where to get more information. This session is a useful prerequisite to all the other sessions on CoP.

In particular, we explain the threefold significance of the statements found in the foreword.

Foreword to all Codes of Practice

This Code of Practice on how to manage work health and safety risks is an approved code of practice under section 274 of the Work Health and Safety Act (the WHS Act).

An approved code of practice is a practical guide to achieving the standards of health, safety and welfare required under the WHS Act and the Work Health and Safety Regulations (the WHS Regulations).

A code of practice applies to anyone who has a duty of care in the circumstances described in the code. In most cases, following an approved code of practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the code. Like regulations, codes of practice deal with particular issues and do not cover all hazards or risks that may arise. The health and safety duties require duty holders to consider all risks associated with work, not only those for which regulations and codes of practice exist.

Codes of practice are admissible in court proceedings under the WHS Act and Regulations. Courts may regard a code of practice as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

Compliance with the WHS Act and Regulations may be achieved by following another method, such as a technical or an industry standard, if it provides an equivalent or higher standard of work health and safety than the code.

An inspector may refer to an approved code of practice when issuing an improvement or prohibition notice. 

This Code of Practice has been developed by Safe Work Australia as a model code of practice under the Council of Australian Governments’ Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety for adoption by the Commonwealth, state and territory governments.

A draft of this Code of Practice was released for public consultation on 7 December 2010 and was endorsed by the Workplace Relations Ministers’ Council on 10 August 2011.

Scope and Application

This Code provides practical guidance for persons who have duties under the WHS Act and Regulations to manage risks to health and safety. The duty is placed on persons conducting a business or undertaking, including employers, self-employed, principal contractors, persons with management or control of a workplace, designers, manufacturers, importers and suppliers of plant, substances or structures that are used for work.

This Code applies to all types of work and all workplaces covered by the WHS Act. Other approved codes of practice should be referenced for guidance on managing the risk of specific hazards.

How to use this Code of Practice

In providing guidance, the word ‘should’ is used in this Code to indicate a recommended course of action, while ‘may’ is used to indicate an optional course of action.

This Code also includes various references to sections of the WHS Act and to regulations which set out the legal requirements. These references are not exhaustive. The words ‘must’, ‘requires’ or ‘mandatory’ indicate that a legal requirement exists and must be complied with.

Use the Latest Version

Image from https://www.legislation.gov.au/Details/F2016L00414 taken on 30 Aug 2020.

Copyright

The “text in quotes” was copied from the Federal Register of Legislation (https://www.legislation.gov.au/Details/F2016L00414) on 30 Aug 2020. It is reproduced under the terms of the CC 4.0 Licence – see here for full details.

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Work Health and Safety

Transcript for Codes of Practice

This is the Transcript for Codes of Practice. In the 30-minute video, we introduce Australian WHS Codes of Practice (CoP). We cover: What they are and how to use them; their Limitations; we List (Federal) codes; provide Further commentary; and Where to get more information. This session is a useful prerequisite to all the other sessions on CoP.

Transcript: Introduction to Codes of Practice

Hello and welcome to the Safety Artisan, where you will find professional, pragmatic and impartial teaching and resources on all thing’s safety. I’m Simon and today is the 16th of August 2020. Welcome to the show.

Introduction

So, today we’re going to be talking about Codes of Practice. In fact, we’re going to be introducing Codes of Practice and the whole concept of what they are and what they do.

Topics for this Session

What we’re going to cover is what Codes of Practice are and how to use them – several slides on that; a brief word on their limitations; a list of federal codes of practice – and I’ll explain why I’m emphasizing it’s the list of federal ones; some further commentary and where to get more information. So, all useful stuff I hope.

CoP are Guidance

So, Codes of Practice come in the work, health and safety hierarchy below the act and regulations. So, at the top you’ve got the WHS Act, then you’ve got the WTS regulations, which the act calls up. And then you’ve got the Codes of Practice, which also the act calls up. We’ll see that in a moment. And what Codes of Practice do are they provide practical guidance on how to achieve the standards of work, health and safety required under the WHS act and regulations, and some effective ways to identify and manage risks. So, they’re guidance but as we’ll see in a moment, they’re much more than guidance. So, as I said, the Codes of Practice are called up by the act and they’re approved and signed off by the relevant minister. So, they are a legislative instrument.

Now, a quick footnote. These words, by the way, are in the introduction to every Code of Practice. There’s a little note here that says we’re required to consider all risks associated with work, not just for those risks that have associated codes of practice. So, we can’t hide behind that. We’ve got to think about everything. There are codes of practice for several things, but not everything. Not by a long way.

Guidance We Should Follow

Now, there are three reasons why Codes of Practice are a bit more than just guidance. So, first of all, they are admissible in court proceedings. Secondly, they are evidence of what is known about a hazard, risk, risk assessment, risk control. And thirdly, courts may rely, or regulators may rely, on Codes of Practice to determine what is reasonably practicable in the circumstances to which the code applies. So, what’s the significance of that?

So first of all, the issue about being admissible. If you’re unfortunate enough to go to court and be accused of failing under WHS law, then you will be able to appeal to a Code of Practice in your defence and say, “I complied with the Code of Practice”. They are admissible in court proceedings. However, beyond that, all bets are off. It’s the court that decides what is anadmissible defence, and that means lawyers decide, not engineers. Now, given that you’re in court and the incident has already happened a lot of the engineering stuff that we do about predicting the probability of things is no longer relevant. The accident has happened. Somebody has got hurt. All these probability arguments are dust in the wake of an accident. So, Codes of Practice are a reliable defence.

Secondly, the bit about evidence of what is known is significant, because when we’re talking about what is reasonably practicable, the definition of reasonably practicable in Section 18 of the WHS act talks about what it is reasonable or what should have been known when people were anticipating the risk and managing it. Now, given that Codes of Practice were published back in 2012, there’s no excuse for not having read them. So, they’re pre –existing, they’re clearly relevant, the law has said that they’re admissible in court. We should have read them, and we should have acted upon them. And there’ll be no wriggling out of that. So, if we haven’t done something that CoP guided us to do, we’re going to look very vulnerable in court.  Or in the whatever court of judgment we’re up against, whether it be public opinion or trial by media or whatever it is.

And thirdly, some CoP can be used to help determine what is SOFARP. So in some circumstances, if you’re dealing with a risk that’s described a CoP, CoP is applicable. Then if you followed everything in CoP, then you might be able to claim that just doing that means that you’ve managed the risk SOFARP. Why is that important? Because the only way we are legally allowed to expose people to risk is if we have eliminated or minimized that risk so far as is reasonably practicable, SOFARP. That is the key test, the acid test, of “Have we met our risk management obligations? “And CoP are useful, maybe crucial, in two different ways for determining what is SOFARP. So yes, they’re guidance but it’s guidance that we ignore at our peril.

Standards & Good Practice

So, moving on. Codes of Practice recognize, and I reemphasize this is in the introduction to every code of practice, they’re not the only way of doing things. There isn’t a CoP for everything under the sun. So, codes recognize that you can achieve compliance with WHS obligations by using another method as long as it provides an equivalent or higher standard of work, health and safety than the code. It’s important to recognize that Codes of Practice are basic. They apply to every business and undertaking in Australia potentially. So, if you’re doing something more sophisticated, then probably CoP on their own are not enough. They’re not good enough.

And in my day job as a consultant, that’s the kind of stuff we do. We do planes, trains and automobiles. We do ships and submarines. We do nuclear. We do infrastructure. We do all kinds of complex stuff for which there are standards and recognized good practice which go way beyond the requirements of basic Codes of Practice. And many I would say, probably most, technical and industry safety standards and practices are more demanding than Codes of Practice. So, if you’re following an industry or technical standard that says “Here’s a risk management process”, then it’s likely that that will be far more detailed than the requirements that are in Codes of Practice.

And just a little note to say that for those of us who love numbers and quantitative safety analysis, what this statement about equivalent or higher standards of health and safety is talking about  –We want requirements that are more demanding and more rigorous or more detailed than CoP. Not that the end –result in the predicted probability of something happening is better than what you would get with CoP because nobody knows what you would get with CoP. That calculation hasn’t been done. So, don’t go down the rabbit hole of thinking “I’ve got a quantitatively demonstrate that what we’re doing is better than CoP.” You haven’t. It’s all about demonstrating the input requirements are more demanding rather than the output because that’s never been done for CoP. So, you’ve got no benchmark to measure against in output terms.

Primacy of WHS & Regs

A quick point to note that Codes of Practice, they are only guidance. They do refer to relevant WHS act and regulations, the hard obligations, and we should not be relying solely on codes in place of what it says in the WHS Act or the regulations. So, we need to remember that codes are not a substitute for the act or the regs. Rather they are a useful introduction. WHS ACT and regulations are actually surprisingly clear and easy to read. But even so, there are 600 regulations. There are hundreds of sections of the WHS act. It’s a big read and not all of it is going to be relevant to every business, by a long way. So, if you see a CoP that clearly applies to something that you’re doing, start with the cop. It will lead you into the relevant parts of WHS act and regulations. If you don’t know them, have a read around in there around the stuff that – you’ve been given the pointer in the CoP, follow it up.

But also, CoP do represent a minimum level of knowledge that you should have. Again, start with CoP, don’t stop with them. So, go on a bit. Look at the authoritative information in the act and the regs and then see if there’s anything else that you need to do or need to consider. The CoP will get you started.

And then finally, it’s a reference for determining SOFARP. You won’t see anything other than the definition of reasonably practicable in the Act. You won’t see any practical guidance in the Act or the regulations on how to achieve SOFARP. Whereas CoP does give you a narrative that you can follow and understand and maybe even paraphrase if you need to in some safety documentation. So, they are useful for that. There’s also guidance on reasonably practicable, but we’ll come to that at the end.

Detailed Requirements

It’s worth mentioning that there are some detailed requirements in codes. Now, when I did this, I think I was looking at the risk management Code of Practice, which will go through later in another session. But in this example, there are this many requirements. So, every CoP has the statement “The words ‘must’, ‘requires’, or ‘mandatory’ indicate a legal requirement exists that must be complied with.” So, if you see ‘must’, ‘requires’, or ‘mandatory’, you’ve got to do it. And in this example CoP that I was looking at, there are 35 ‘must’s, 39 ‘required’ or ‘requirement’ – that kind of wording – and three instances of ‘mandatory’. Now, bearing in mind the sentence that introduces those things contains two instances of ‘must’ and one of ‘requires’ and one of ‘mandatory’. So, straight away you can ignore those four instances. But clearly, there are lots of instances here of ‘must’ and ‘require’ and a couple of ‘mandatory’.

Then we’ve got the word ‘should’ is used in this code to indicate a recommended course of action, while ‘may’ is used to indicate an optional course of action. So, the way I would suggest interpreting that and this is just my personal opinion – I have never seen any good guidance on this. If it says ‘recommended’, then personally I would do it unless I can justify there’s a good reason for not doing it. And if it said ‘optional’, then I would consider it. But I might discard it if I felt it wasn’t helpful or I felt there was a better way to do it. So, that would be my personal interpretation of how to approach those words. So, ‘recommended’ – do it unless you can justify not doing it. ‘Optional’ – Consider it, but you don’t have to do it.

And in this particular one, we’ve got 43 instances of ‘should’ and 82 of ‘may’. So, there’s a lot of detailed information in each CoP in order to consider. So, read them carefully and comply with them where you have to work and that will repay you. So, a positive way to look at it, CoP are there to help you. They’re there to make life easy for you. Read them, follow them. The negative way to look at them is, ”I don’t need to do all this says in CoP because it’s only guidance”. You can have that attitude if you want. If you’re in the dock or in the witness box in court, that’s not going to be a good look. Let’s move on.

Limitations of CoP

So, I’ve talked CoP up quite a lot; as you can tell, I’m a fan because I like anything that helps us do the job, but they do have limitations. I’ve said before that there’s a limited number of them and they’re pretty basic. First of all, it’s worth noting that there are two really generic Codes of Practice. First of all, there’s the one on risk management. And then secondly, there’s the one on communication, consultation and cooperation. And I’ll be doing sessions on both of those. Now, those apply to pretty much everything we do in the safety world. So, it’s essential that you read them no matter what you’re doing and comply with them where you have to.

Then there are other codes of practice that apply to specific activities or hazards, and some of them are very, very specific, like getting rid of asbestos, or welding, or spray painting – or whatever it might be – shock blasting. Those have clearly got a very narrow focus. So, you will know if you’re doing that stuff. So, if you are doing welding and clearly you need to read the welding CoP. If welding isn’t part of your business or undertaking, you can forget it.

However, overall, there are less than 25 Codes of Practice. I can’t be more precise for reasons that we will come to in a moment. So, there’s a relatively small number of CoP and they don’t cover complex things. They’re not going to help you design a super –duper widget or some software or anything like that. It’s not going to help you do anything complicated. Also, Codes of Practice tend to focus on the workplace, which is understandable. They’re not much help when it comes to design trade –offs. They’re great for the sort of foundational stuff. Yes, we have to do all of this stuff regardless. When you get to questions of, “How much is enough?” Sometimes in safety, we say, “How much margin do I need?” “How many layers of protection do I need?” “Have I done enough?” CoP aren’t going to be a lot of use helping you with that kind of determination but you do need to have made sure you’ve done everything CoP first and then start thinking about those trade –offs, would be my advice. You’re less likely to go wrong that way. So, start with your firm basis of what you have to do to comply and then think “What else could I do?”

List of CoP (Federal) #1

Now for information, you’ve got three slides here where we’ve got a list of the Codes of Practice that apply at the federal or Commonwealth level of government in Australia. So, at the top highlighted I’ve already mentioned the ‘how’ to manage WHS risks and the consultation, cooperation, and coordination codes. Then we get into stuff like abrasive, blasting, confined spaces, construction and demolition and excavation, first aid. So, quite a range of stuff, covered.

List of CoP (Federal) #2

Hazardous manual tasks – so basically human beings carrying and moving stuff. Managing and controlling asbestos, and removing it. Then we’ve got a couple on hazardous chemicals on this page, electrical risks, managing noise, preventing hearing loss, and stevedoring. There you go. So, if you’re into stevedoring, then this CoP is for you. The highlighted ones we’re going to cover in later sessions.

List of CoP (Federal) #3

Then we’ve got managing risk of Plant in the workplace. There was going to be a Code of Practice for the design of Plant, but that never saw the light of day so we’ve only got guidance on that. We’ve got falls, environment, work environment, and facilities. We’ve got another one on safety data sheets for another one on hazardous chemicals, preventing falls in housing – I guess because that’s very common accident – safe design of structures, spray painting and powder coating, and welding processes. So, those are the list of – I think it’s 24 – Codes of Practice are applied by Comcare, the federal regulator.

Commentary #1

Now, I’m being explicit about which regulator and which set of CoP, because they vary around Australia. Basically, the background was the model Codes of Practice were developed by Safe Work Australia, which is a national body. But those model Codes of Practice do not apply. Safe Work Australia is not a regulator. Codes of Practice are implemented or enforced by the federal government and by most states and territories. And it says with variations for a reason. Not all states and territories impose all codes of practice. For example, I live in South Australia and if you go and look at the WorkSafe South Australia website or Safe Work – whatever it’s called – you will see that there’s a couple of CoP that for some reason we don’t enforce in South Australia. Why? I do not know. But you do need to think about these things depending on where you’re operating.

It’s also worth saying that WHS is not implemented in every state in Australia. Western Australia currently have plans to implement WHS, but as of 2020 but I don’t believe they’ve done so yet. Hopefully, it’s coming soon. And Victoria, for some unknown reason, have decided they’re just not going to play ball with everybody else. They’ve got no plans to implement WHS that I can find online. They’re still using their old OHS legislation. It’s not a universal picture in Australia, thanks to our rather silly version of government that we have here in Australia – forget I said that. So, if it’s a Commonwealth workplace and we apply the federal version of WHS and Codes of Practice. Otherwise, we use state or territory versions and you need to see the local regulator’s Web page to find out what is applied where. And the definition of a Commonwealth workplace is in the WHS Act, but also go and have a look at the Comcare website to see who Comcare police. Because there are some nationalised industries that count as a Commonwealth workplace and it can get a bit messy.

So, sometimes you may have to ask for advice from the regulator but go and see what they say. Don’t rely on what consultants say or what you’ve heard on the grapevine. Go and see what the regulator actually says and make sure it’s the right regulator for where you’re operating.

Commentary #2

What’s to come? I’m going to do a session on the risk management Code of Practice, and I’m also, associated with that, going to do a session on the guidance on what is reasonably practicable. Now that’s guidance, it’s not a Code of Practice. But again, it’s been published so we need to be aware of it and it’s also very simple and very helpful. I would strongly recommend looking at that guidance if you’re struggling with SFARP for what it means, it’s very good. I’ll be talking about that soon. Also, I’m going to do a session on tolerability of risk, because you remember when I said “CoP aren’t much good for helping you do trade–offs in design” and that kind of thing. They’re really only good for simple stuff and compliance. Well, what you need to understand to deal with the more sophisticated problems is the concept of tolerability of risk. That’ll help us do those things. So, I’m going to do a session on that.

I’m also going to do a session on consultation, cooperation, and coordination, because, as I said before, that’s universally applicable. If we’re doing anything at a workplace, or with stuff that’s going to a workplace, that we need to be aware of what’s in that code. And then I’m also going to do sessions on plant, structures and substances (or hazardous chemicals) because those are the absolute bread and butter of the WHS Act. If you look at the duties of designers, manufacturers, importers, suppliers, and installers, et cetera, you will find requirements on plant, substances and structures all the way through those clauses in the WHS Act. Those three things are key so we’re going to be talking about that.

Now, I mentioned before that there was going to be a Code of Practice on plant design, but it never made it. It’s just guidance. So, we’ll have a look at that if we can as well – Copyright permitting. And then I want to look at electrical risks because I think the electrical risks code is very useful. Both for electrical risks, but it’s also a useful teaching vehicle for designers and manufacturers to understand their obligations, especially if you operate abroad and you want to know, or if you’re importing stuff “Well, how do I know that my kit can be safely used in Australia?” So, if you can’t do the things that the electrical risk CoP requires in the workplace if your piece of kit won’t support that, then it’s going to be difficult for your customers to comply. So, probably there’s a hint there that if you want to sell your stuff successfully, here’s what you need to be aware of. And then that applies not just to electrical, I think it’s a good vehicle for understanding how CoP can help us with our upstream obligations, even though CoP applies to a workplace. That session will really be about the imaginative use of Code of Practice in order to help designers and manufacturers, etc.

And then I want to also talk about noise Code of Practice, because noise brings in the concept of exposure standards. Now, generally, Codes of Practice don’t quote many standards. They’re certainly not mandatory, but noise is one of those areas where you have to have standards to say, “this is how we’re going to measure the noise”. This is the exposure standard. So, you’re not allowed to expose people to more than this. That brings in some very important concepts about health monitoring and exposure to certain things. Again, it’ll be useful if you’re managing noise but I think that session will be useful to anybody who wants to understand how exposure standards work and the requirements for monitoring exposure of workers to certain things. Not just noise, but chemicals as well. We will be covering a lot of that in the session(s) on HAZCHEM.

Copyright & Attribution

I just want to mention that everything in quotes/in italics is downloaded from the Federal Register of Legislation, and I’ve gone to the federal legislation because I’m allowed to reproduce it under the license, under which it’s published. So, the middle paragraph there – I’m required to point that out that I sourced it from the Federal Register of legislation, the website on that date. And for the latest information, you should always go to the website to double–check that the version that you’re looking at is still in force and is still relevant. And then for more information on the terms of the license, you can go and see my page at the www.SafetyArtisan.com because I go through everything that’s required and you can check for yourself in detail.

For More…

Also, on the website, there’s a lot more lessons and resources, some of them free, some of them you have to pay to access, but they’re all there at www.safetyartisan.com. Also, there’s the Safety Artisan page at www.patreon.com/SafetyArtisan where you will see the paid videos. And also, I’ve got a channel on YouTube where the free videos are all there. So, please go to the Safety Artisan channel on YouTube and subscribe and you will automatically get a notification when a new free video pops up.

End

And that brings me to the end of the presentation, so thanks very much for listening. I’m just going to stop sharing that now. It just remains for me to say thank you very much for tuning in and I look forward to sharing some more useful information on Codes of Practice with you in the next session in about a month’s time. Cheers now, everybody. Goodbye.

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Intro to Codes of Practice

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In Full: Guide to the WHS Act

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BREXIT Special – Video & Key Points

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

BREXIT Special, 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.

See the ‘BREXIT Special’ full transcript here.

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BREXIT Special – the Full Transcript

Hello, and welcome to The Safety Artisan, where you will find safety training resources and pragmatic, Professional and impartial advice therein. Well, let’s hope so anyway! It is Christmas Eve, the 24th of December 2019 and I have a special show for you today. What we have is a Brexit Christmas special for you, and the reason for that, as I’m sure you are aware, is events in the UK.

See the 45-minute video and key points here.

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.

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. For more information, do please feel free to visit my Patreon Page, where all the safety training videos are available – a lot of free. Some you must pay a small fee to see and that’s it. www.Patreon.com/SafetyArtisan that’s the safety artisan page and then there are more resources at The Safety Artisan website.

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

See the 45-minute video and key points here.

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Work Health and Safety

WHS Regulations and Codes of Practice

WHS Regulations

The WHS Regulations specify the way in which some duties under the WHS Act must be met and prescribes procedural or administrative requirements to support the WHS Act (for example requiring licences for specific activities and the keeping of records).

All quotes are from the Guide. See the Disclaimer and Copyright Statement.

The WHS Regulations run to over 600 pages! The Safety Artisan will produce guidance material about WHS Regulations soon…

Codes of Practice

Codes of Practice provide practical guidance on how to meet the standards set out in the WHS Act and the WHS Regulations. Codes of Practice are admissible in proceedings as evidence of whether or not a duty under the WHS laws has been met. They can also be referred to by an inspector when issuing an improvement or prohibition notice.

It is recognised that equivalent or better ways of achieving the required work health and safety outcomes may be possible. For that reason compliance with Codes of Practice is not mandatory providing that any other method used provides an equivalent or higher standard of work health and safety than suggested by the Code of Practice.”

The Guide.

There are several Code of Practice, and they are vitally important to understanding obligations under Australian WHS. The Safety Artisan will produce more material about WHS Codes of Practice, soon…

Interpretive Guidelines

Interpretive guidelines are a formal statement on how WHS regulators believe key concepts in the WHS Act operate and in doing so provide an indication of how the laws will be enforced.”

The Guide.

The Interpretive Guidelines explain some key concepts in WHS – such as PCBUs and Officers of the PCBU – so they are very useful! The Safety Artisan will produce more material about WHS Interpretive Guidelines, soon…

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

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

Professional | Pragmatic | Impartial
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Work Health and Safety

Introduction to the WHS Act – Part 2

The Full 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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