Australia: WARNING: Is your use of an ‘off-the-shelf’ safety system compliant with the model Work Health and Safety Act?

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 subcontractors).

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 relationships.

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 purpose.

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 safety systems.

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.

Footnotes

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.