The engineer and the WHS Act. What engineers and designers need to be aware of when complying with the WHS Act

Transcription

1 The engineer and the WHS Act What engineers and designers need to be aware of when complying with the WHS Act

2 In case you missed it A new WHS model act (2011) Harmonises WHS laws across all jurisdictions Intended to improve worker safety, reduce costs to business and improve efficiency for regulators Strong focus on corporate governance Embodies a moral philosophy, how things should be

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4 The big picture Person Conducting a Business has a duty of care Absolute liability Various types of businesses Defined roles PCBU, Officers, workers, others Plant manufacturers, designers, supplier, maintainers, users End to end application to supply chain Placed due diligence on responsible officers So Far as is Reasonably Practicable

5 What does this mean if you re doing design The act places requirements on designers of plant* Designer = the person conducting the business must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by.. [the above] *Can be just about anything, including vehicles

6 Due diligence If you can show that you were duly diligent it is a defense against liability Act requires due diligence (as defined) to be applied So not applying it is an offense even if there s no accident So why wouldn t you want to be diligent?

7 OK so what does that as far as is mean? Contrary to what you might have heard So Far As Is Reasonably Practicable is not: Really a fancy legal way of saying ALARP Risk acceptance like we ve always done Optional Simply stated if it s reasonable and practicable to do something about a hazard you do it, regardless of what the risk is

8 Hierarchy of controls The act is big on eliminating hazards in the first instance Requires a specific hierarchy of controls be implemented You need to demonstrate at each level that there s no more that can be done Falling through the hierarchy to procedural controls at the bottom of the hierarchy is a no no Obviously designing out a hazard requires the designer to design them out

9 Reasonably practicable in more detail What can be done, should be done unless it is reasonable in the circumstances for the duty holder to do less Practicable = Is there something that is able to be done or put into practice sucessfully? Not quite the same as practical Reasonableness = balancing magnitude of risk, probability of occurrence and severity of harm against expense, difficulty and inconvenience and utility of conduct or against any other conflicting responsibilities which the defendant may have. Grossly disproportionate rule

10 Risk acceptance IS NOT reasonably practicable SFAIRP DESIGN PROCESS* RISK DRIVEN DESIGN PROCESS Identify hazard Identify hazard Well understood Implement standard Determine how to handle OR Assess risk Design controls Poorly understood Hierarchy of controls ACCEPTABLE You re done! Evaluate risk Compare risk against criteria UN-ACCEPTABLE Redesign You re done! Y Evaluate Risk eliminated or minimised SFAIRP? N Redesign Potentially still things you could reasonably do *See Guide to Safe Design of Plant

11 The implications of risk driven design If you know about a risk but did nothing because the risk was acceptable, and there were reasonable steps you could have take then you are deemed to have been reckless Recklessness or knew or made or let it happen carries a 5 years jail term so legal counsel are strict in the way in which SFAIRP is demonstrated, e.g., you need to demonstrate having followed the act

12 But I don t do design, Contractor X does! Remember that due diligence thing? As a supplier you are still responsible for the safety of the plant Can t contract out legal responsibilities Due diligence does allows you to rely on others You need to be able to justify the reasonableness of that reliance If they apply risk based design (like IEC 61508) you have a problem

13 The good news SFAIRP actually reflects how we do things as a society There s quite a lot of supporting material See the Guide for the Safe Design of Plant for example Requirements for suppliers, designer and manufacturers are clear, unambiguous and enforceable There should be far fewer inane risk workshops (at least for safety)

14 Final thoughts De minimus non curat lex Or The law does not concern itself with trifles If there is a reasonable apprehension of serious harm you need to be diligent If it s risk of a paper cut, or the probability is so remote that we would not reasonably expect it to occur (Borel s law) then don t waste everyone s time No one likes a pedant