Australian workers are protected by a robust and comprehensive workplace health and safety (WHS) framework. Inclusive of multiple federal bodies including Safe Work Australia and Comcare and numerous state and territory-specific organisations, the system provides statutory guidance, on-the-job protection and compensation pathways for casual, full and part-time workers across Australia.

Broad in scope and regularly updated to reflect both the development of new industries and changes in working practices, Australia’s WHS framework ensures that millions of workers across the country come home each night safely from their jobs. However, care must be taken to ensure that the natural lag between new safety practices being developed and their inclusion in legislation is kept as short as possible.

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As such, it’s important for decision-makers within organisations – senior management, site managers, safety officers, etc – to be aware of the outer limits of the relevant legislation. Understanding where the legislation lags behind or falls short is the first step towards developing a truly safe working environment, as it’s here where solutions that are not legally mandated but could save lives can be enacted.

As construction, agriculture & forestry, mining, power, freight and other similar industries together represent more than three-quarters of all on-the-job fatalities in 2016, this article will focus primarily on challenges faced within these sectors of the economy.

If you’ve already built a compliant workplace, start working towards building a truly safe one with help from GRIPPS.

The current WHS regulatory landscape

The key to understanding the scope of WHS regulation in Australia is understanding how these regulations are created and enforced. As mentioned above, Australia maintains a dual regulatory system with elements separately administered at both the state and federal levels.

At the federal level, Safe Work Australia is a statutory agency that both provides guidance on WHS policy and raises awareness of workplace safety best practices. It’s important to note that Safe Work Australia does not possess regulatory powers – that is, it lacks the ability to enforce compliance with WHS regulations and to compel employers to change behaviours or practices.

Enforcement of WHS laws is the responsibility of individual state and territory regulators and a number of national industry-specific regulators. Each state and territory government is responsible for the development and enforcement of their own workplace health and safety laws. As such, each jurisdiction has its own regulations defining safe and acceptable working conditions and its own regulator charged with enforcing those regulations. These regulations can differ significantly between jurisdictions and the level of power regulators have to enforce compliance and the mechanisms of enforcement can also vary.

A sample life-cycle would be:

  1. Safe Work Australia conducts research into the Australian economy and provides guidance to Commonwealth, state and territory governments on policy updates,
  2. These governments then enact these policy changes, and
  3. The responsible state and territory regulator then enforces the changes.

The reality can differ in that information can flow both laterally and from the states and territories to the Commonwealth level and that states and territories conduct their own research into policy changes, but this is the simplest mechanism of operation of the Australian workplace health and safety framework.

Differences between jurisdictions

Complicating this is the natural differences in legislation between jurisdictions. Each state and territory has built up a body of workplace health and safety legislation over the years that reflects both their unique economies and the specific concerns at the time the legislation was enacted.

Since 2008, governments have sought to standardise WHS legislation through the use of model laws in order to make it easier for both employees and business-owners to relocate and work across state and territory lines. These are draft pieces of legislation created by Safe Work Australia that aim to marry together the most effective elements from previous legislation with more updated ideas, ensuring seamless and universal protection of workers across the country.

In the decade since the initiative began, all jurisdictions except Victoria and Western Australia have implemented versions of the model laws. Western Australia is currently in the process of assessing the model laws for compatibility with their own unique economy, while Victoria has given no indication that it will adopt these laws. This makes them an interesting case study for an analysis of how legislation can differ between jurisdictions.

Peak employment organisation Australian Industry Group has a breakdown of how Safe Work Australia’s model WHS laws resemble and diverge from the Victorian legislation. In short, while they are remarkably consistent, differences do exist.

A key example is the requirement in the WHS laws that designers of structures consider the safety of those who construct the structure, and not just the end-user. This provision does not exist in the Victorian legislation – but it is important to note that in many cases where the text of the legislation is in conflict, the same effect may be achieved through other regulations or pieces of legislation. As such, employers and employees operating both in Victoria and in other states or territories need to study each jurisdiction’s WHS legislation and understand where differences may require them to alter practices or reporting across locations.

What’s missing?

Despite harmonisation and regular amendments to legislation, the totality of Australian workplace health and safety law still lags behind reality. This is not something unique to WHS legislation – all law is reactive to developments within economies and societies – but it equally does not mean that we should excuse these oversights.

Ensuring that best practice is continually reflected in WHS law is crucial, as only by legislating it can compliance be made enforceable. By implication, anything above or outside of the scope of the legislation is likely to be considered a ‘nice to have’.

This thought doesn’t necessarily spring from negligence, but instead can often be traced to a misconception held by many that WHS legislation is comprehensive and all-encompassing. As such, the notion of integrating safety measures not simply in excess of the standards described in the legislation (i.e. using a cable with a higher load-rating than required) but outside its scope (i.e. entirely new solutions for problems identified by the legislation) is often completely overlooked.

Not addressing fresh processes

A key example can be found in dropped tools prevention. While all states and territories have strict requirements on the nature of the safety equipment worn by people working at heights to prevent falls, less attention has been paid to the tools and objects these people could be carrying.

A range of key resources including a February 2017 WorkSafe Victoria factsheet and the Work Health and Safety (Construction Work) Code of Practice 2015 all identify the risk of dropped tools on a worksite and their potential for causing fatal injuries. However, where they fall short is in prescribing outdated and only partially effective remedies. Where the risk of dropped tools cannot be eliminated through offsite or ground-level manufacturing, both prescribe containment systems such as guardrails, debris netting and toeboards as the immediate next step for site managers.

The issue with this is that all of these remedies are only effective once the dropped tool has already become a hazard. Every time a worker at an elevated position loses control of their tool, there is a risk for injury. Even in areas with adequate netting or kickboards, a free-moving object can still pose a risk to other workers and to the tool’s owner.

Additionally, these prescribed remedies are often not grounded in reality and fail to account for common deviations from the norm. Many of the remedies prescribed for dropped tools assume that the object will fall a) directly down in a relatively straight line, and b) within the bounds of the worksite if not within the structure itself. This is often not the case, with dropped tools often deflecting off part of the structure and taking a different trajectory or being carried clear of the worksite entirely by high winds.

Debris netting can only be erected to a maximum distance from the building – what happens if a tool is dropped from the 50th storey, bounces off structure on the 45th storey and falls diagonally away from the building and clear of the netting? At this point, all safety measures have failed, and the tool is now a danger not only to people within the worksite but passers-by on the adjacent street.

How you can build a safer environment

Unsafe – but legally compliant – environments arise from a too broad and too literal approach to following safety measures. Every worksite, every project and every worker is unique, and as such a unique approach should always be required. As stated above, this does not mean disregarding existing WHS regulations – it simply means taking a tailored approach that interprets them for your specific circumstances.

The most effective way to ensure that you’re getting the best possible fit for your organisation is by partnering with a professional company who understands what to look for. Professional auditing can help you not only identify where you’re falling short of compliance, but also how you could go above and beyond and create a safer and more productive working environment.

If you’d like to ensure that your team is better protected than ever against dropped tools, contact the team at GRIPPS today on targetzero@gripps.com.au for a turnkey solution, covering everything from auditing to implementation.