Over the last few months most Australian OHS regulators, and many labour law firms,have been conducting workshops and public seminars on Australia’s plans to harmonise its OHS legislation. In those workshops, the consultative process and timeframes have been described by some as a “nightmare”, which is not exactly inspiring participants who are seeking clarity from the confusion.
Significantly, others are encouraging the audience to advocate specific positions in potential submissions.
Recently, concerns were raised over the revisions to Safe Work Method Statements (SWMS) provisions. It was suggested that SWMS have the potential to bloat beyond several pages due to the need to include “associated risks”. Most safety management systems and OHS professionals would already have include secondary, ancillary or associated risks as part of the job safety analyses and SWMS.
As an example of this type of discussion, WorkSafe Victoria’s comparison document of its Victorian OHS regulations to the new national draft says
“The SWMS duty will expand to require all hazards, risk and controls associated with the high-risk construction work to be recorded, as the risks of the work.” [emphasis added by WorkSafe]
WorkSafe seems to consider this as a major issue as is evident from the (unnecessary) emphases in the document. Associated risks become a minor issue some years ago when the duty of care was expanded, or clarified, to apply to visitors to workplaces.
A major risk with complicated SWMS is one that already exists and is not being adequately addressed – the cutting and pasting of SWMS that have only a tenuous relationship to the task being undertaken. SWMS run the risk of bloating but this is more likely to occur if the role of SWMS in managing safety is poorly understood or poorly explained. It is acknowledged by regulators that the new WHS Act and regulations will undoubtedly increase the amount of paperwork required to demonstrate compliance. SWMS is just one part of that paperwork but a vital one, particularly in the area of contractor management
It should be noted that Comcare has also released a comparison document of the WHS Act itself but it is much briefer and does not mention the SWMS issues as the SWMS section is in the draft regulations.
Another consideration in the harmonisation process is whether OHS regulators’ information seminars and supportive documents should be expressing opinions at all. All Australian OHS regulators have already been closely involved in the writing of the draft OHS regulations and will be even more involved with the harmonisation of Codes of Practice, guidances and safety alerts. The national drafts have already considered the positions of all the government regulators but clearly the documents are not agreed positions. In fact, the positions of the OHS regulators seem far from harmonised.
It is important to ask whether the OHS regulators should be “leading” people who are to make submissions on the draft documents?
Safe Work Australia has received less than 40 submissions to date (only one from Victoria), which is slow, but should not be surprising given the scheduling of the public comment phase over the Christmas/New Year break. Like most inquiries, a slew of submissions can be expected in the next few weeks leading to the April deadline. It will be fascinating to see if there are any common threads to the submissions from each State jurisdiction.
I think that one good example of the poor approach being adopted under the Regulations is in the area of falls, although this is replicated in many other areas of risk within the proposed regulations.
Propsed regulation 4.4.4 requires workers to make a record of administartive controls to be implemented to manage the risks associated with falls over 2 metres in certain circumstances – a typical JHA/JSA/SWMS presumably. But it also requires the worker to identify why other controls set out in the reregulation (4.4.3 (1) – (4)) are not being implemented.
Does this thought process make sense from a safety risk management perspcetive? Yes, I would think so. Is it likely to be able to be meaningfully implemented in practice? Based on the evidence of current JHA useage and the \”tick and flick\” mentality that accompanies them – no.
JHAs and other administrative controls are known to have significant limitations when it comes to the management of risk. We also know that they contribute to managememt\’s lack of understanding about how safety is actually achieved in the workplace (see for example the following by David Borys http://ssmon.chb.kth.se/vol13/issue2/3_Borys.pdf), but rather than deal with this issue, the regulations compound it by increasing the administrartive/compliance workload.
It is dissapointing to see so much energy and talent focussed on safety – but focussed on the wrong issues.
Thanks Greg, and an excellent reference to David borys\’ work.
The \”2 metre rule\” comes up regularly in seminar discussions on the new WHS legislation. Most people who deal with safety onsite are in favour of a clear or prescriptive rule of around 2 metres. Others point out that serious injuries and fatalities don\’t only occur from falls of 2 metres or over and that the \”rule\” discounts the risks of lower-altitude falls.
I can appreciate both sides of the debate but wonder whether the fall risk assessment option allows industries and companies to determine their own \”tolerance\”(?) for a height limit. Perhaps we are looking too much at the regulators for answers instead of providing them ourselves.