SS2

Safety Sessions

Episode Two - OHS Framework

First up I’m only talking about health and safety in this session, NOT workers compensation. That is, the steps you must take to prevent an injury and not the steps you must take to manage an injury, both of which are legislated.

Also a point of clarification. I will be using the phrase occupational health and safety or OHS in these Safety Sessions.  This is simply because OHS or OSH is still the universal term and what most people know health and safety to be.  Just because the name of the legislation might have changed for most from OHS to WHS doesn't mean your vocabulary has to.

Now as mentioned in my first Safety Session, I will break down the Work Health and Safety Act 2011 into various sections so you can understand its requirements and ensure you and your business are compliant. But having spoken to some clients since the first Session, I realised some of you don’t fully understand the difference between what is legislated (i.e., mandatory) and what is recommended by guidance material (i.e., voluntary).

So before I get into the WHS Act, I just want to provide an overview of the framework that makes up Occupational Health and Safety.

Essentially the framework consists of the legislation, codes of practice and relevant standards.  I use a ladder to express how this may appear as it’s a good way to see where things sit. And we tend to climb a ladder so it makes sense to find the important documents at the top.

OHS Framework Ladder

The Legislation

So atop our ladder sits the legislation. The Acts and Regulations.  These are written instruments that have been passed by Government and sets out the minimum legal requirements you must achieve.  Generally each jurisdiction (State and Territory) has their own specific Act and Regulation that they follow.

A Regulation expands on what is spoken about in the Act and provides more detailed information related to the specific parts of the Act. They tend to go hand in hand and complement each other although it is the Act that is regularly referred to when talking about legislation.

Since 2012, the majority of Australian jurisdictions mirrored the national harmonised Work Health and Safety Bill. This means those jurisdictions basically follow the same legislation which is enforced by the relevant state regulator.

Business and individuals in Victoria are still bound by the Occupational Health and Safety Act 2004, while our Western Australian brothers and sisters follow the Occupational Safety and Health Act 1984. For those living outside Australia, you are basically looking for the written instrument that dictates what is required by you as an employer and employee to protect people. Otherwise known as the law, but not Judge Dredd.

If you need help finding your relevant OHS legislation, the International Labour Organization provides a database on national Occupational Health and Safety legislation at http://www.ilo.org/dyn/legosh/en/f?p=LEGPOL:1000.

Examples of the legislation listed include the:

•     Occupational Safety and Health Act 1970 (USA)
•     Health and Safety at Work etc Act 1974 (UK)
•     Occupational Health and Safety Act 1993 (South Africa)
•     Health and Safety and Employment Act 1992 (NZ)
•     Occupational Safety and Health Act 1994 (Malaysia)

Guidance Material

To help everyone achieve the requirements set out in the legislation, guidance material has been developed and is available through a number of sources (regulators, peak bodies, commissioners etc).

Thinking back to our ladder, at the bottom are Industry Standards and Guidance Notes.  A good starting point to help you achieve your legislative obligations. Check out the Queensland Government's website regarding coal mining for how these types of standards and guidance notes work.

https://www.business.qld.gov.au/industry/mining/safety-health/mining-safety-health/legislation-standards-guidelines/recognised-standards-guidelines-guidance-notes.

One step above the industry standards are the more widely recognised Australian and New Zealand Standards and to some degree International Standards. These types of standards are a technical guideline and are prepared by a joint technical committee and approved by the Council of Australian Standards (and Council of New Zealand Standards when applicable).

You often see a reference to an Australian Standard being met when purchasing equipment and machinery etc. That is because Australian Standards apply to almost everything as they are the technical authority when it comes to a minimum acceptable standard, whether in design, construction, installation or certification.

The downside to Australian Standards is that they are managed by SAI Global (www.saiglobal.com).  While that in itself isn’t such a bad thing, it does mean you have to purchase individual copies of Standards or subscribe to their database.  Personally I find it a bit strange that you can access the legislation and Code of Practice for free, yet to even view a Standard that may be referenced in a code means spending a few hundred dollars. It’s like we want safety to be a key part of business but then we place a restriction on it.

The last step of guidance material belongs to the codes of practice.  A Code of Practice is a practical guide that demonstrate the steps you can take to achieve the requirements set out in the Act and Regulation. Codes of practice are approved in a similar way to the legislation as they receive a Ministerial Council approval. So we are talking high level approval here.

And of all the guidance material, codes of practice are the ones you don’t want to neglect.  

That is because these guys are quasi-legislation in that they are admissible in a court of law when it’s an approved Code of Practice.  This is important to understand as they can and will be used against you as evidence that a hazard or risk was foreseeable and may be used to determine what is reasonably practicable in terms of controls etc. So it’s good to know what approved Code of Practice applies to you in your jurisdiction, so check with your regulator (Safe Work Australia provide a link to each regulator http://www.safeworkaustralia.gov.au/sites/SWA).

When used correctly, the voluntary guidance material can help you meet the obligations you have under the legislation. And the beauty of the guidance material is that it’s the part where you can start to borrow from other jurisdictions, industries and even countries.

This is because the guidance material tries to achieve what is considered ‘best practice’ and it doesn’t need to go through an entire parliamentary procedure to update or change it to stay on trend and relevant.

But it’s also the area where a lot of businesses go wrong.

This is due to the emphasis being placed on meeting the levels set out in the guidance material which are voluntary at the detriment of the legislation which is mandatory. Now you could argue that if the guidance material sets a higher standard than the legislation you can’t go wrong, but you will if you focus on one Australian Standard or approved Code of Practice to the point where you miss the other obligations you have (as those documents don’t cover all risks).

And I have seen it happen, particularly with AS/NZS 4801:2001 Occupational health and safety management systems­– Specification with guidance for use. Certification under this Standard can provide a false sense of compliance under the legislation. Especially when it comes to the duty of an Officer under the Work Health and Safety Act 2011. I’ll talk more in the next session on the various duty holders under the WHS Act and what it might mean for you, but it can be easy to place unnecessary time and effort (which is money) in meeting something that you don’t have a legislative requirement too. Just something to be mindful of.

So to demonstrate how all the steps in the ladder come together, I’ll use First Aid as an example.

Work Health and Safety Act 2011

Under this Act, an organisation has an obligation to provide adequate facilities for the welfare at work and training that is necessary to protect all persons from risks arising from the work of the organisation.

Work Health and Safety Regulation 2011

Regulation 42 stipulates that anyone conducting a business must ensure the provision of and access to first aid equipment and that there is a trained person to administer first aid services.

Code of Practice – First Aid in the Workplace

The Code of Practice shows the steps that you can take to meet your obligation and references the specific sections of the Act or Regulation that apply to first aid.  In particular it helps you to:

• Understand what is required in providing first aid,
• Determine first aid requirements for the workplace, and 
• Understand what first aid equipment, training and facilities may be applicable.

It also references other codes of practice that could apply and any Standards that may be applicable. In this case it talks about first aid signage so makes reference to AS 1319 – Safety Signs for the Occupational Environment and mentions eye wash and shower equipment so references AS 4775 – Emergency eye wash and shower equipment.

In addition, it contains a number of appendices that include an example of a first aid risk assessment and possible contents for a first aid kit.

Australian Standards

AS 1319 – Safety Signs for the Occupational Environment

This Australian Standard relates to the design of safety signs (as the name suggests) and sets out that technical guidelines for the design of safety signs.  It states an emergency sign should be a green rectangle a white symbol or text and border that indicates the location or direction of its subject (exit or first aid kit etc). 

Hopefully this example helps to illustrate how each step in the ladder works together to achieve the requirements as set out in the WHS Act and/or WHS Regulation but that you can also see meeting one step in the ladder doesn't necessarily mean compliance with the Act.

Next time we will start our journey into how the WHS Act and WHS Regulation applies to you and your business by discussing the different types of duty holders under the legislation.

I hope you can join me then and in the mean time be sure to like our Facebook page and keep sending through your questions.

Neil Norman

Doesn’t every business deserve a Safety Guru!