Bulk Engineering, BULKtalk

BULKtalk: Breaking down WHS terminology

Steve Davis explains some of the key work health and safety terms the bulk handling industry should know.

In 2011, Safe Work Australia published the model Work Health and Safety (WHS) laws to be implemented across Australia. 

Including the term “model” in the title implies that these are the basis for use, and they can be modified. Safe Work Australia does not implement the laws on a federal basis. Most Commonwealth states and territories have separately implemented the laws as their own laws. Safe Work Australia is responsible for maintaining the model WHS laws but does not regulate or enforce them in the jurisdictions. This leads to the potential for variations between jurisdictions.

A key aspect of the WHS legislation is the use of the term PCBU; Person Conducting a Business or Undertaking. All jurisdictions except Victoria have included this definition in WHS laws. PCBUs are responsible for implementing the WHS codes and other legal requirements. There are several definitions of PCBU, but few of us in the bulk handling industry would be able to avoid being PCBUs as an individual or organisation or both. Some definitions for PCBU include:

  • an employer an officer, such as a business owner or CEO worker or other person in the workplace. 
  • A person with a primary duty of care under the model WHS laws.
  • People who have specific design duties relating to the design of plant, substances and structures including the buildings in which people wor
  • People responsible for designing organisational structures, staffing rosters and systems of work
  • Professionals who provide expert advice to organisations on work health and safety matters.
  • Designers, manufacturers, importers, suppliers and installers of plant, substances, or structures.

A person can have more than one duty under the model WHS laws. For example, a self-employed person may be simultaneously a PCBU and a worker. A person is not a PCBU where they are engaged solely as a worker or officer of a business or undertaking. 

A PCBU has a primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking and others who may be affected by the carrying out of work, such as visitors and off-site interfaces.

The primary duty of care requires PCBUs to ensure so far as is reasonably practicable the:  

  • provision and maintenance of a safe work environment. 
  • provision and maintenance of safe plant and structures. 
  • provision and maintenance of safe systems of work.
  • safe use, handling and storage of plant, structures, and substances.
  • provision of accessible and adequate facilities (for example access to washrooms, lockers, and dining areas).
  • provision of any instruction, training, information, and supervision.
  • monitoring of workers health and conditions at the workplace.
  • maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.

Health is defined in the model WHS Act as both physical and psychological health. As part of its primary duty a PCBU must manage the risks to a worker’s psychological health, so far as is reasonably practicable. 

The definition of PCBU and responsibilities covers a wide range of attributes. Fortunately, most of us have been engaged on this safe work path for a long time, making adaptation straightforward.

The model laws have been implemented in all jurisdictions except Victoria. WorkSafe Victoria has its own legislation for OHS and does not include PCBU. Victorian laws appear to have similar goals and expectations in achieving safe outcomes. All other states and territories adhere to the WHS model legislation in general, but there are some differences.

Current websites indicate that the WHS Codes of Practice are not consistent across the jurisdictions and may differ slightly even where the titles are the same. The table summarises the number of Codes of Practice listed. 

Table 1

Codes of practices with similar titles appear to be similar in content for all states and territories. Codes of Practice are not the only documents listed as having legal consequences on jurisdictional websites, and there is significant variation in applicable legislation between jurisdictions.

Each jurisdiction has a WHS regulator that enforces WHS laws, inspects workplaces, and gives advice for the jurisdiction in which the laws apply. It is not clear whether the laws of the jurisdiction of use have precedence over the laws of the jurisdiction of supply. For example, a conveyor designed and fabricated in NSW for erection and use in WA. In this case I assume that the design, erection, and use would fall under WA Law, but the fabrication would fall under NSW law. As a PCBU it would be wise to consider both NSW and WA, as there are potentially differences between WHS jurisdictions. 

Responsibilities broadly have two categories. The first ones are relatively easy to manage and are mandates such as Australian Standard and other Agency specific requirements. The second ones are less easy to define and manage and fall into the ‘So Far As Is Reasonably Practical’ (SFAIRP) category, which is used widely in the WHS legislation, and ‘As Low as Reasonably Practical’ (ALARP).

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There are many definitions and discussions of the meaning and implications of these two terms and how they are used together. The following is a good definition and assumes a Risk Management Plan is in place.

Reasonably Practicable is a narrower term than physically possible and implies that a trade-off must be made between the residual risk and the measures necessary for reducing or removing the residual risk (money, time, or resources). If the residual risk is zero or has been reduced to a point where unreasonable additional measures would be required to reduce it further, a Reasonably Practical status has been achieved. The trade-off is unique to each situation.

WHS Duty of Care require that risks to safety are eliminated SFAIRP and where it is not reasonably practicable to eliminate safety and health risks, to minimise those risks.

Risk management records must demonstrate that further measures (time, money, resources, etc) that would be required to reduce the residual risk of the business venture further would be grossly disproportionate to further risk reduction. Justification of grossly disproportionate should be recorded.

Sometimes the residual risks are too high, resulting in a safety incident, and a PCBU will be in court defending the decisions taken to get to SFAIRP on a project or work package where an incident has occurred. Codes of practice are admissible in court proceedings as evidence of what is known about a hazard, risk, or control, and may be used to determine what is ‘reasonably practicable’ in the circumstances that the code relates to. 

I recommend maintaining a fully documented record of the Risk Management Plan and process taken to get to SFAIRP, as this will be a key resource in any proceedings. Motherhood statements and partial or vague records and records where the path from initially identification of a risk through analysis of mitigation and definition of residual risk being SFAIRP is unclear, or incomplete are unhelpful in law.

Many of us are involved with design, be this equipment or complete bulk handling projects. Safe Work Australia provides guidance in a downloadable handbook “Principles of Good Work Design | A work health and safety handbook” that should be used by those with a role in designing work and work processes. 

Some jurisdictions have additional guidance. Following clauses indicate expectations expressed from various sources:

  • As a PCBU, you have a duty to consider safe design in a workplace. 
  • Safe design means the integration of control measures early in the design process to eliminate or, if this is not reasonable practicable, minimise risks to health and safety throughout the lifecycle of the product being designed. 
  • Buildings, structures, machinery and equipment, tools and vehicles all need safe design to protect the people who use them from getting sick or injured. 
  • Safe design starts at the concept phase, when a PCBU is deciding and identifying design and intended purpose, materials, how someone will build, maintain, operate, demolish, dismantle or dispose of it, legislation, codes of practice and standards it’ll need to comply 
  • As a PCBU, you must, SFAIRP, ensure the health and safety of workers and others at your workplace, consult with workers, and health and safety representatives, who are (or are likely to be) directly affected by a health and safety matter, and consult, cooperate and coordinate activities with all other relevant duty holders.  

As a summary, PCBUs have a duty of care to eliminate, SFAIRP, all health and safety risks in the workplace and other places impacted by the workplace. SafeWork Australia and Australian jurisdictions provide and manage the WHS legislation applicable. Assure yourself that you work to the laws of the jurisdiction(s) where the work applies.

If a risk cannot be removed, it must be minimised by; substituting (wholly or partly) the hazard with something having a lesser risk, isolating the hazard from persons exposed to it, implementing engineering controls to restrict access to the hazard, implementing administrative controls to restrict access to the hazard, using personal protective equipment and procedures where access to a hazard cannot be prevented. A combination of controls may be used to minimise a risk if a single control is not sufficient.

In determining control measures, everything that may be relevant to the hazards and risks and the means of eliminating or minimising the risks must be identified and considered and should be recorded.

In determining what is reasonably practicable, you must consider; the likelihood of the hazard or risk occurring, the degree of harm from the hazard or risk, knowledge about ways of eliminating or minimising the hazard or risk, the availability and suitability of ways to eliminate or minimise the risk.

Involve as many people with knowledge of design, construction, operation and maintenance as possible, and refer to previous incidents. Record the risk management process and the SFAIRP outcomes. 

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