Guide to the WHS Act

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.



https://youtu.be/Yzkl3vCVYv8

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 ;



- § 4-8, Definitions;



- § 12A, Exclusions;



- § 18, Reasonably Practicable;



- § 19, Primary Duty of Care;



- § 22-26, Duties of Designers, Manufacturers, Importers, Suppliers & those who Install/Construct/Commission;



- § 27, Officers & Due Diligence;



- § 46-49, Consult, Cooperate & Coordinate;



- § 152, Function of the Regulator; and



- § 274-276, WHS Regulations and CoP.



Transcript: Guide to the WHS Act



Click here for the Transcript

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



 As opposed to managing the workplace although it does that as well. I recorded a short video version of this. In that, we looked at the primary duty of care and the duty of designers. We spent some time looking at that and that video is available. It’s available at safetyartisan.com and you can watch it on YouTube. So just search for safety artisan on YouTube.



Topics



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



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



- what is reasonably practicable. That phrase that I’ve used several times before.



- What is the primary duty of care so that sections 18 and 19. And if we jump to



- Section 27 What are or who are officers and what does due diligence mean in a WHS setting?



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



Disclaimer



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



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



The Object of the Act



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



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



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



Definitions



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



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



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



Exclusions



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



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



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



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



So Far As is Reasonably Practicable



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



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



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



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



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



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



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



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



The Primary Duty of Care



 So I’m not really going to go through this again 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.

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Simon Di Nucci https://www.safetyartisan.com/2023/04/26/guide-to-whs/