Risk Management Process within the WHS Act: An Overview

An overview of the Risk Management Process within the WHS Act DASA

WHS Act Overview Aim • Increase awareness of Air Domain personnel in meeting the requirements of the WHS Act when assessing and managing risk • Scope: • WHS Act overview • Risk Management Process • Observations

WHS Act Overview References • WHS Act • WHS Regulations • WHS Code of Practice – How to manage WHS risks • Interpretive guideline – WHS Act - The meaning of reasonably practicable • AAP 8000.011 – Defence Aviation Safety Regulation (DASR) • CASG Policy – (E&T) 12-8-001 – Materiel System Safety • CASG Handbook – (E&T) 12-8-003 – Materiel System Safety Handbook • CASG Procedure – (E&T) 12-8-026 – Duties within a Materiel System Safety Program • CASSafe

WHS Act Overview WHS Act Overview

WHS Act Overview WHS Act objective • WHS Act s.3(1) “The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work [or from specified types of substances or plant]”

WHS Act Overview WHS Act objective • WHS Act s.3(2) “In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work [or from specified types of substances or plant] as is reasonably practicable.”

WHS Act Overview Primary duty of care • WHS Act s.19 “(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced directed by the person, while the workers are at work in the business or undertaking. (2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”

WHS Act Overview Primary duty of care • WHS Act s.19 • s.19 directs PCBU to ensure health and safety • Within the PCBU there are multiple duty holders who are responsible for meeting (can be concurrently) – s.22 to s.26: • Operator • Designer • Importer • Manufacturer etc • WHS Regulations detail what is expected in meeting duties • CASG Policy: • Material Systems Safety (E&T 12-8-001) • Duties within Material Systems Safety (E&T 12-8-026)

WHS Act Overview Duties not transferrable • WHS Act s.14 “A duty cannot be transferred to another person.”

WHS Act Overview More than one person can have a duty • WHS Act s.16 “(1) More than 1 person can concurrently have the same duty (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty (3) If more than 1 person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter; and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

WHS Act Overview Management of risks • WHS Act s.17 “A duty imposed on a person to ensurehealth and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

WHS Act Overview Hierarchy of control measures • WHS Regulation 36 “(1) This regulation applies if it is not reasonably practicable for a duty holder toeliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this regulation. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following: (a) substituting(wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk; (b) isolatingthe hazard from any person exposed to it; (c) implementing engineeringcontrols

WHS Act Overview Hierarchy of control measures • WHS Regulation 36 – continued (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls. (5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.”

WHS Act Overview What is reasonably practicable - SFARP • WHS Act s.18 “Reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and

WHS Act Overview Reasonably practicable – definition (2) • WHS Act s.18 – continued (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

WHS Act Overview SFARP (reasonableness) – an objective test (standard) • Reasonably practicable is an objective test (not formula) based on what a: • reasonable person • in the duty holder’s position • considering the same circumstances • taking into account all relevant matters known at the time • exercising a careful and prudent approach that is reasonable in the circumstances • Determining what is reasonably practicable requires professional judgement and common sense • Reasonably practicable is a qualitative assessment.

WHS Act Overview SFARP– Grossly disproportionate • Assessing s.18(e) – What is grossly disproportionate: • Cost is a relevant matter in considering what is reasonable • There is a clear presumption in favour of safety ahead of cost • Cost must only be considered after assessing relevant matters including the extent of the risk and ways of eliminating risk • Costs of controls may include purchase, installation, maintenance and operation of the control and the resultant impact on productivity as a result of the control • The assessment of cost disproportionality is determined through the application of professional judgement and common sense • Make decisions around what is considered grossly disproportionate at the appropriate level • Do not assume there is no funding for available and suitable controls even when the cost is significant. The decision is focused on s.18(e).

WHS Act Overview Maintenance of control measures • WHS Regulation 37 “A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains: (a) fit for purpose; and (b) suitable for the nature and duration of the work; and (c) installed, set up and used correctly.”

WHS Act Overview Review of control measures • WHS Regulation 38 “(1) A duty holder must review and as necessary revise control measuresimplemented under these Regulations so as to aintain, so far as is reasonably practicable, a work environment that is without risks to health or safety. (2) Without limiting subregulation (1), the duty holder must review and as necessary revise a control measure in the following circumstances: (a) the control measure does not control the risk it was implemented to control so far as is reasonably practicable (s.18);

WHS Act Overview Review of control measures • WHS Regulation 38 – continued (b) before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control; (c) a new relevant hazard or risk is identified; (d) the results of consultation by the duty holder under the Act or these Regulations indicate that a review is necessary; (e) a health and safety representative requests a review under subregulation (4).”

WHS Act Overview Consultation, co-operation and co-ordination • WHS Act s.46 • Shared duty holders must consult, co-operate and co-ordinate activities with other duty holders in relation to the same matter • WHS Act s.47 – s.49 (Exemption) • S.47 – Duty to consult workers • S.48 – Nature of consultation • S.49 – When consultation is required • WHS communication and consultation

WHS Act Overview Risks with regulated controls–WHS Act and Regs • Plant and Structures – duties under the Act • Duties of PCBU (s.19, 20) • Duties of managers (s.21) • Duties of designers of plant (s.22) • Duties of manufacturers of plant (s.23) • Duties of importer of plant (s.24) • Duties of suppliers of plant (s.25) • Duties of installer, constructor or commissioner of plant or structures (s.26) • Duty of Officers (s.27) • Plant and Structures – Note there are Regulations that detail and deal with the above duties that you must engage in meeting the duties under the Act

WHS Act Overview Risks with regulated controls (14) • Registration of Plant Design and Items of Plant • Remote or isolated work • Airborne contaminants • Hazardous atmospheres • Storage of flammable or combustible substances • Falling objects • Hazardous work • Noise • Hazardous manual tasks • Confined spaces • Falls • High risk work • Demolition work • General electrical safety in workplaces and energised electrical work • Diving work

Risk Management Process An overview – The Risk Management process within the WHS Act

Always Consult/Cooperate/Coordinate s.46 • Where there is a shared duty, consultation, cooperation and coordination is required with other duty holders • Consult with workers who are affected • Consult with other stakeholders Risk Management Process Risk Management Process within the WHS Act STEP 1 Establish Hazard and Risk Context reg.37 reg.38 STEP 7 Continuous Risk Monitoring and Review STEP 2 Be Reasonably Informed (of the risk & all possible controls) s.17(a) s.18 STEP 3 Eliminate Risk SFARP Assess Gross Disproportionality s.17(b) s.18 Reg 36 (HoC) STEP 4 Minimise Risk SFARP Assess Gross Disproportionality NO STEP 5 Characterise Risk STEP 6 Decision-to-Proceed YES

Risk Management Process Step 1 - Establish hazard and risk context • A duty holder must undertake risk identification by determining: • What is the context? • What are the hazards present in the work or environment? • What are the risks associated with those hazards? • What is the impact (e.g. what happens, who is affected, how they are affected) if the risk materialises?

Risk Management Process Step 2 –Be reasonably informed • Being reasonably informed involves what the duty holder actuallyknows, and could be reasonably expectedto know in the circumstances about the: • Risk context • Hazards in the risk context • E.g. potential failure of plant, equipment, systems of work or safety measures and human error or misuse, fatigue and stress reactions • interaction between multiple hazards that may together cause different risks, and • Likelihood and degree of harm, and • Ways of eliminating the hazards/risk(s) • Some risks (e.g. confined space, noise) require review of WHS Regulations • known as risks with regulated controls

Risk Management Process Step 2 – Be reasonably informed • A control is considered available when: • provided on the open market • if it can be manufactured • It is already in use at another location within Defence • A control is considered suitable when: • effective in eliminating or minimising likelihood or degree of harm • does not introduce new of higher risks in the circumstances • practical to implement in the circumstances

Risk Management Process Step 3 - Eliminating risk SFARP • Having identified the risk, the duty holder mustconsider elimination measures (duty in s.17(a)) by: • identifying what is required to eliminate the risk in the circumstances, and • Eliminate the risk SFARP (apply s.18): • whether it is reasonable to implement what is required in the circumstances to eliminate the risk(s) • whether the cost of implementing the elimination measure/s is considered grossly disproportionate in the circumstances to eliminate the risk(s) (s.18(e)) • Gross disproportionate assessment made in a deliberate or detailed assessment must be recorded • All elimination measures must be implemented immediately unless it is considered not reasonable to do so • Once risk/s are eliminated, undertake decision to proceed and monitor and review controls • The decision to proceed does not replace/overtake the requirement to eliminate risk.

Risk Management Process Step 4 - Minimising risk SFARP • A duty imposed on a person to ensure health and safety requires the person (s.17(b)): • (a) to eliminate risks to health and safety, so far as is reasonably practicable; and • (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable (apply s.18 and note s.18(e))

Risk Management Process Step 4 - Minimising risk – controls • Apply Reg 36 and HoC • Risks with regulated controls must be minimised using prescribed methods in WHS Regulations • Implement available and suitable controls to minimise risk as identified in step 2 - Become reasonably informed • Control effectiveness varies in different circumstances and environments - this is a key consideration when applying s.18

Risk Management Process Step 5 - Characterise risk • Apply suitable method to describe the risk remaining after minimisation: • Use narrative to describe the risk • Apply the tools to contextualise the risk e.g: • Defence Harmonised Risk Matrix (DHRM) • Likelihood of occurrence • Consequence/degree of harm/impact or occurrence • Identify where reasonable – strengths and maintenance requirements for controls • Systems Safety (MIL-STD-882 E) • Procced to a decision whether to undertake the activity

Risk Management Process Step 5 - Characterise risk • DHRM

Risk Management Process Step 5 - Characterise risk • MIL-STD-882 E

Risk Management Process Step 6 - Decision to proceed • Decision to proceed relates any activity covered by the duties in the WHS Act – design, import, operate etc • Identify who is the decision maker in the risk context / circumstance: • Operator? • Commander? • Chief Engineer? • Risk Management Authority? • or …? • Make the decision!

Risk Management Process Step 7 – Monitor, Maintain and Review • Risks need to be continually monitored, maintained and reviewed • Reg 37 details legislative requirement to maintain effective risk control measures: “A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains: (a) fit for purpose; and (b) suitable for the nature and duration of the work; and (c) installed, set up and used correctly.”

Risk Management Process Step 7 – Monitor, Maintain and Review • Risks need to be continually monitored, maintained and reviewed • Continued focus on risk that remains after minimisation • Reg 38 details legislative requirement to continually review and revise risk control measures: • Aim is to eliminate (s.17(a)) risk SFARP (s.18) • If risk can not be eliminated, aim to minimise (s.17(b)) risk SFARP (s.18) • Reg 38.1 - A duty holder mustreview and as necessary revise control measures implemented under these Regulations so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety • Ensure personnel continue to be consulted about workplace risks

Observations Observations

Observations Applying standards • The use of ISO 31000 in isolation does not meet the requirements of the WHS Act • Satisfying a particular standard may not equal meeting a duty under the WHS Act • ISO methodology does not adequately address: • s.17 • s.18 • Due diligence s.27 • Reasonableness

Observations ALARP • Beware of: • Any predetermined accepted level of risk (e.g. low) • Matrices employed suggested tolerable or intolerable levels of risk • Risk minimisation activities prematurely ceased once the predetermined (low) risk threshold reached • Achieving the accepted risk level led duty holders into decisions counter the intent of the WHS Act • Not pursuing further reasonable risk minimisation activities that should have been progressed to SFARP • The WHS Act makes no reference to risk levels

Observations Duty of Officers • DI (G) PERS 19-18 identifies ‘Officers’ for the purpose of the WHS Act: • For Air Force - CAF • For CASG – DEPSEC • A Court is likely to identify other senior executives and commanders as ‘Officers’ under the WHS Act • As a matter of precaution all persons who are making or participating in making decisions that concern the safety of personnel should act on the basis that they discharge obligations under the WHS Act as if they are officers for the purpose of s.4 of the WHS Act.

Observations Duty of Officers • WHS Act s.27 • Requirement for due diligence s.27(1): “If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.” • Various Defence policy requires a number of persons to do due diligence • Defence’s deeming of officers will not bind prosecuting authorities nor a Court.

Risk Management Process within the WHS Act: An Overview