Work safety at heights

There currently exists much inconsistency and regulatory burden across state boundaries with regard to workplace health and safety legislation. While the federal government has proposed ‘harmonisation’ of the legislation, there is still some confusion around the timing of the full implementation of the proposal. The slipping timescale should not be used as an excuse to delay the implementation of the intent of the new legislation.

Harmonisation is based on a model Work Health and Safety Act (WHSA) supported by model Work Health and Safety Regulations (WHSR) with the expectation that these pieces of legislation will be adopted in each jurisdiction.

Under the proposed scheme, the Regulations will be administered by each state’s regulatory authority and Comcare, with the Heads of Workplace Safety Authority (HWSA) in each jurisdiction charged with maintaining consistency across boundaries. This will be followed by a harmonisation of the workers compensation process.

The Regulations will reference a large number of codes of practice which are recommendations on safety issues and are not mandated. However, if the codes are not followed, there will be a requirement to prove that the alternative method of operation adopted provides as good an - or a better - outcome.

The codes of practice will reference Australian Standards, but only where the Australian Standards organisation commits to keeping the standards up to date. Overseas standards will also be accepted where they are considered to offer an equal or higher level of safety.

Codes of practice

An approved code of practice is a practical guide aiming to achieve the standards of health, safety and welfare required under the WHS Act and the WHS Regulations. A code of practice applies to anyone who has a duty of care in the circumstances described in the code.

In most cases, following an approved code of practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the code. Like Regulations, codes of practice deal with specific issues and do not cover all hazards or risks which may arise. The health and safety duties require duty holders to consider all risks associated with work, not only those for which regulations and codes of practice exist.

Codes of practice are admissible in court proceedings under the WHS Act and Regulations. Courts may regard a code of practice as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

Compliance with the WHS Act and Regulations may be achieved by following another method, such as a technical or an industry standard, if it provides an equivalent or higher standard of work health and safety than the code.

An inspector may refer to an approved code of practice when issuing an improvement or prohibition notice.

Codes of Practice have been developed by Safe Work Australia as model Codes of Practice under the Council of Australian Government’s Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety for adoption by the Commonwealth, state and territory governments.

In codes of practice, the word “should” is used to indicate a recommended course of action, while “may” is used to indicate an optional course of action. The words “must”, “requires” or “mandatory” indicate that a legal requirement exists and must be complied with. Codes also include various references to provisions of the WHS Act and Regulations which set out the legal requirements. These references are not exhaustive.

The key changes regarding the legislation harmonisation can be summarised as follows:

Duty holder

The primary duty of care for ensuring the health and safety of workers who are engaged by the person lies with the Person Conducting a Business or Undertaking (PCBU). It also covers workers whose activities are influenced or directed by the person. The ‘person’ may be an organisation or an individual and the Act also states that a person conducts a business or an undertaking whether it is conducted alone or together with others - and whether or not it is conducted for profit or gain. This definition moves away from the traditional stricter employer/employee relationship and has a much wider scope by removing the need to prove an employment, or deemed employment, relationship.

Consultation

Duty holders must consult with other duty holders that have a duty in respect of the same matter. This covers other workers, contractors and unrelated businesses on the same site. The process of consultation has been expanded to include the opportunity for workers to contribute to the decision-making processes around safe work.

Health and Safety Representative (HSR)

On request from any single worker, workers can be grouped into ‘work groups’ and can elect a member to represent them. In such cases, a proper election process must be followed with the representative being appointed for a period of three years. HSRs must undergo formal training and work is still underway to define the competencies to be covered. The most recent proposals indicate a five-day training schedule. HSRs will have the power to issue provisional improvement notices and, if necessary, direct the cessation of work. They also have responsibilities to investigate complaints from workers and make other enquiries in respect of worker safety.

Worker liability

Having increased the range of the duty holder, the legislation also increases the responsibility on the worker by requiring the worker to take reasonable care of their own safety including complying with reasonable policies and procedures that they have been made aware of. The worker has also been empowered to be able to cease work if it is deemed unsafe by the worker.

Officer liability

The Act places a duty to exercise due diligence on individuals described as officers, as defined under the Corporations Act 2001. The key change here is the inclusion of a person who “makes, or participates in making decisions that affect the whole or a substantial part of the business”. There is no need to prove liability by the company, and the officer has direct liability. To achieve a prosecution it would have to be proven beyond reasonable doubt that the officer did not exercise due diligence in his duties and responsibilities for worker health and safety. To defend against prosecution the officer should be able to demonstrate the steps taken to exercise due diligence.

Due diligence

The health and safety duty of officers requires them to take reasonable steps to exercise due diligence to ensure compliance by the PCBU with its health and safety obligations. This requires them to keep up to date with knowledge of work health and safety matters and an understanding of the nature of the operations of the business or undertaking, and generally the hazards and risks associated with the operations.

Right of entry

Right of entry must be given to union officials holding a permit where a contravention is suspected. No notice is required prior to entry but must be given as soon as practicable after entry. The permit holders may inspect plant and systems, consult with workers, inspect records and take copies of documents that are directly relevant.

Penalties

There are three categories of offences each carrying substantial penalties in a criminal jurisdiction:

Category 1

Offences causing or with high risk of causing death or serious injury involving recklessness:

• Corporation - $3m
• Officer - $600,000 or five years imprisonment
• Individual/Worker - $300,000 or five years’ imprisonment

Category 2

Offences causing or with high risk of causing death or serious injury not involving recklessness:

• Corporation - $1.5 million
• Officer - $300,000
• Individual/Worker - $150,000

Category 3

Less serious offences - placing persons at risk of injury or illness:

• Corporation - $500,000
• Officer - $100,000
• Individual/Worker - $50,000

Effect on height safety

While much of the detail of the new legislation has changed, the legislation has retained the general duty that workplaces are, as far as reasonable, safe and without risk to the health of persons. The procedures to ensure a safe workplace are still risk based but require an increased level of consultation and risk management. Working at height has been formally classified as a high-risk activity in the legislation. All those involved in that activity need to consider their position relative to due diligence by keeping up to date with industry standards.

The new prime code of practice for working at heights is ‘How to Prevent Falls at Workplaces’ supported by codes of practice on ‘Preventing Falls in Housing Construction’ and ‘Managing Risks in Construction Work’. The codes of practice make reference to Australian Standards in the provision of guidelines for more specific hazard risks.

The codes of practice recommend that risk to safety is reviewed in accordance with the Hierarchy of Risk Control. Under this concept for each potential working at height issue, hazard identification should be completed to determine the likelihood and potential severity of injury, with solutions being determined using the hierarchy of control.

Level of protection	Control	Solution	Reliability of control
High	Elimination	Elimination of the height safety hazard through redesign. Eliminate the need to work at height	Most
Medium	Substitution	Substitute the height safety hazard with something safer eg, use an EWP	Middle
	Isolation	Isolate the height safety hazard from people eg. implement lock out systems.
	Engineering controls	Reduce the risk through engineering controls eg. use guard rails or walkway systems.
Low	Administration controls	Use administration systems to control access eg. permit to work systems	Least
	Use of personal protective equipment	Use of fall protection equipment (anchor systems, harnesses, shock absorbing lanyards etc) in conjunction with work method statements

All attempts should be made to secure the highest level of protection, which provides the most reliable level of control.Where those attempts fail and there appear to be no alternatives to working at height, the opportunity should be taken to seek some professional advice from a height safety specialist company. While the specialist advice may include alternative solutions that can prevent the need to work at height, advice on the correct approach and work method when required can also be sought. Such advice can extend from the design of specialist equipment or the recommendation of standard equipment, the writing of work method statements, the provision of operator training and certification, and implementing procedures for ongoing equipment inspection and recording.

The new legislation should not simply force more detailed examination of new tasks but should include a comprehensive review of existing working at height operations to ensure the latest techniques and equipment have been considered under the due diligence procedure. Taking specialist professional advice will not only demonstrate due diligence on the part of the officer but will also have the effect of sharing the risk.

Personal protective equipment (PPE)

The Hierarchy of Control talks about the use of PPE. For foot, hand or eye protection this may be a single item. However, in working at height applications PPE comprises a number of critical components, including static lines, ladder systems, full body harnesses, lanyards, shock absorbers, anchor points and so on, that must all work in perfect harmony to provide the required level of safety. As well as the equipment itself, the method in which it is used as well as the skill and competence of the operator has also to be ensured. Again, specialist advice should be sought wherever possible. The new harmonised legislation is now rolling into the market and officers and employees should be working together with industry experts to ensure they comply. Such a review will not only re-enforce their duty of care and due diligence process but will also increase their protection both from the risks associated with working at height and from the risks of not complying with the new harmonised WHS legislation.

The Working at Height Association (WAHA) has been formed on the back of the recently expanded Fall Protection Manufacturers Association (FPMA). WAHA aims to be considered the industry peak body on working at height issues. Height safety specialist member categories now include full- and part-line manufacturers, equipment designers and installers, height safety equipment distributors and height safety training organisations. All specialists in height safety remain members of WAHA, representing their ongoing commitment to developing, operating and promoting the use of the highest standards of safety where people are required to work at height. WAHA advocates proactive communication with its members for the best advice on working at height issues. For more information on working at height issues or to contact a specialist in the industry, visit The Working at Height Association (WAHA) at www.waha.org.au.