The authors acknowledge that the idea for this article was
sourced from the article "Work, Health and Safety Act
"due diligence": Will our current safety systems be
compliant?" by Dr Susanne Bahn, which was published in
the Journal of Health and Safety Research and Practice, Volume 4
Issue 2 October 2012.
The short answer is your use of an 'off-the-shelf'
safety system will not be compliant with the model Work Health and
Safety Act unless you have consulted with workers about the
'off-the shelf' system.
The model Work Health and Safety Act (WHS
Act)1 imposes a new obligation on persons
conducting a business or undertaking (PCBU) to
consult with workers about WHS matters. This raises a serious
question as to whether widespread use of 'off-the-shelf'
safety systems is compliant with the WHS Act.
The problem with 'off-the-shelf' safety systems
Section 19(1) of the WHS Act imposes a duty on PCBUs to ensure,
so far as is reasonably practicable, the health and safety of
workers while at work. That duty extends to a wide range of workers
who may not be directly engaged by the PCBU (e.g. employees of
In addition, PCBUs have duties under sections 47 – 49 of
the WHS Act to, so far as is reasonably practicable, consult with
workers in relation to WHS matters and the development of safe
working systems2. This includes providing workers with a
reasonable opportunity to express their views and contribute to the
decision-making process. Consultation between a PCBU and its
workers is integral to achieving a safe workplace because:
communication assists identification of hazards and risks;
talking about any WHS concerns helps find solutions;
drawing on knowledge and experience of others allows more
informed decisions to be made;
workers actively involved in WHS decisions will have greater
awareness and commitment; and
understanding the views of others fosters positive working
An issue facing many PCBUs is that they continue to rely on
generic, 'off-the-shelf' safety systems and do not consult
with workers about them. Examples include non-specific job safety
analyses, safe work methods, training and operation manuals, and
workplace policies and procedures3. The problem with
these generic products is that they are just that: generic. They do
not take into account the many and varied WHS issues facing
individual workplaces and workforces and do not include
consultation with workers. It follows that PCBUs that rely solely
on such safety systems are in breach of their consultation
obligations under the WHS Act.
While the courts are yet to consider what is required to comply
with the new consultation obligations, it is difficult to see how
blind reliance on 'off-the-shelf' safety systems could be
compliant. Section 49 of the WHS Act expressly states when
consultation is required, and includes when developing and
implementing safety systems4. Further, a clear
legislative intention of the consultation duties is to involve
workers in the decision-making process. However, reliance on easily
accessible, generic products flies in the face of that intended
The problem with 'off-the-shelf' safety systems is
further complicated by the fact that section 27 of the WHS Act
imposes a new, onerous, proactive duty on officers of a PCBU to
exercise due diligence to ensure compliance with the WHS Act by the
relevant PCBU. The net effect is that senior managers (who are
likely to be captured by the broad definition of officer) and other
officers (who may have no role in the daily operation of the
business or undertaking) must take reasonable steps to ensure that
PCBUs comply with, among other obligations, those in respect of
worker consultation. This inevitably means taking reasonable steps
to ensure that work practices and safety systems have been
developed and implemented with the (documented) input of workers
– and not allowing the organisation to simply utilise generic
Ultimately, if a PCBU seeks to rely on an
'off-the-shelf' safety system, that system should be
tailored, through consultation with workers, to take into account
the specific work, workplace and workforce in question, to ensure
both the PCBU and officers are compliant with the WHS Act.
1 The WHS Act currently applies in NSW,
Queensland, ACT, NT and the Commonwealth, and will come into force
in SA and Tasmania on 1 January 2013.
2 Bahn, S., (2012), Work Health and Safety Act
"due diligence": Will our current safety systems be
compliant?, J Health & Safety Research & Practice, 4(2),
8-13, p 8.
3 Bahn, above n 2, p 11.
4 Ibid, p 12.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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