OHS Safe Design Requirements (Victoria)

Summary

When you design, you will need to:

• consider the nature and range of activities associated with the intended use of the building
• consult with the client and others involved in the construction, occupation and management of the building to identify any health and safety risks
• design to include measures in the design to eliminate or, if the risk cannot be eliminated to minimise any safety risk or hazard.

A systematic process of hazard analysis, risk evaluation and management is recommended. This should be recorded and recoverable to readily demonstrate compliance. Guidance to assist you in the process is provided in the publication WorkSafe Victoria Designing Safer Buildings and Structures (2005) (see links below). On a large or complex project it may be appropriate for you to recommend that the client engage a specialist OHS consultant.

If you fail to ensure the workplace design is safe you or your practice may be prosecuted by WorkSafe and you can be fined a penalty (in Victoria) up to approximately $380,000 for corporations and $75,500 for individuals.

A standard professional indemnity policy will generally not cover you in respect of prosecutions and penalties for breach of the workplace health and safety legislation. We strongly recommend that you will need to contact your broker to confirm you have cover or to get additional cover in respect of breaches and penalties under that legislation.

Back to top

Section 28 Occupational Health and Safety Act 2004 (Vic)

Introduction

National workplace health and safety legislation was introduced in 2012 by each of the states (except Victoria) implementing the Workplace Health and Safety Acts (WHS Acts) and regulations.

In Victoria, the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and regulations continue to apply. The occupational health and safety (OHS) legislation in Victoria and each of the WHS Acts are similar in that they set out legal duties and requirements for the safe design of workplaces. References in this note are to the Victorian legislation, with any important differences in the WHS Acts noted. In the other states and WA the WHS Acts have three key areas of additional liability, being specific reporting duties, expanded scope of duty across construction and demolition, and scale of penalties.

The ‘safe design’ duty

The OHS Act (section 28) imposes a duty on designers of buildings and structures which are to be used as workplaces. This duty falls on you, the architect, as designer. When designing, your ‘safe design’ duty means you must do all that is ‘reasonably practicable’ to ensure the building is safe and without risks to the people who will use the building as a workplace for which it was designed. Similar duties apply under the OHS legislation in respect of the design of any plant to be used in the workplace.

When does it apply to me?

The duty applies when you design in Victoria:

• any building or structure, or part of a building or structure, to be used as a workplace, including any rigid structures such as a bridge, silo, tunnel, pit or tower
• buildings which may be occasional workplaces, such as sports stadiums.

The duty does not apply:

• when the building is under construction or being demolished
• when you design residential buildings (but does apply when you design a residential-type building that will be a workplace, for example an aged-care residence).

Other provisions in the OHS legislation may apply to these building stages and you should get specific expert advice on this.

The safe design duty applies to professionals with the expertise and skills necessary to design a building or structure and in addition to architects, may include draftspersons, engineers, interior and industrial designers and contractors. The duty applies to these professionals and experts when they prepare feasibility studies, concept and schematic designs, preliminary sketches, plans or drawings, construction documentation and make expert decisions that will be incorporated into the design. The duty applies to both individuals and corporations (including your practice).

In all states except Victoria, the WHS Acts impose further duties on a designer to:

• carry out calculations, analysis, testing and examinations necessary to ensure the safe design of the building
• provide information to the client concerning the purpose of the design, the results of any calculations, analysis, testing and examinations and any conditions necessary to ensure that the structure is safe for use.

Back to top

Identify the risks relevant to your project

When you are preparing the design of the building or structure, you need to consider the nature and range of activities of the people who will use the building as a workplace. Include control measures for risks early in the design of the building to eliminate or, if the risk cannot be eliminated put in control measures to minimise any safety risk or hazard.

The safe design duty does not require you to design so that you have removed absolutely all risks. Rather you need to design to:

• eliminate the risks to health and safety
• reduce those risks to health and safety

…so far as it is ‘reasonably practicable’ to do so.

Back to top

Identify what is ‘reasonably practicable’ to do for your project

It is not possible to simply set out what steps or measures are or are not ‘reasonably practicable’. This is a concept that requires the designer to make an assessment of what steps or measures can eliminate or reduce the risks identified, on a case-by-case basis. To assess whether a step or measure is ‘reasonably practicable’ to eliminate or otherwise reduce the risks you must consider:

• the likelihood of a person who will work in the building being exposed to harm
• the seriousness of the potential harm
• what is known or ought to be known about the hazard or risk and how it may be eliminated or reduced
• available and suitable ways and the cost of eliminating or reducing the risk (OHS Act section 20).

You make this assessment in the context of the particular project, including the scope of the brief, the parties involved and the design process. The parties involved in the design process may be clients, project managers and consultants such as industrial and interior designers or technical specialists involved in the design process. An architect or designer may have only limited control over the matters and activities which may give rise to safety risks in the workplace and this will be only one of many considerations required to be taken into account in the building design process. For example, the client has the duty to consult with people using the workplace and provide any information regarding identified safety risks to the designers. A key way for the designer or architect to manage the safe design duty is to provide information to the client about the safety risks or hazards to the people who will use the workplace, that arise from the client brief and make recommendations as to how those risks may be eliminated.

Back to top

Be proactive about your safe design duty

In discharging your duty, architects need to be proactive and consult with the client and others involved in the construction, occupation and management of the building to identify any health and safety risks and determine what control measures are reasonably practicable to eliminate the risks. In some cases you should even consult with employees to identify and assess any safety risks and hazards.

A suggested comprehensive risk management approach:

• Do a preliminary analysis to identify health and safety risks and hazards that may arise from the design of the building or structure and its intended use as a workplace.
• Determine whether the risk may be eliminated or controlled by   implementing a recognised standard such as the NCC or an industry standard, or do a full risk assessment to determine a specific design solution.
• Think about and consult on whether an alternative or innovative solution could eliminate the   risk and provide a safer structure.
• Evaluate the final design for health and safety risks based on the principles of section 20 of the OHS Act.
• Inform the builder (and builder’s subcontractors), consultants and the client/employer of any risks or safety hazards identified and the measures required to eliminate or control this risks, including a written site-specific hazard identification and risk assessment.
• On large or complex projects, engage, or preferably recommend that the client engages a consultant, for example a relevant engineer, an occupational hygienist or ergonomist, to collaborate and advise on the risk management process.

When you carry out a preliminary analysis to identify the workplace health and safety risks within the scope of the building design, consider:

• incidents which may arising from the siting of the building or structure and separation between any other building or plant on the site
• hazards to occupants and workers which may have significant consequences such as handling dangerous goods or materials
• risks posed by systems of work, for example separation of pedestrians from vehicles and hazardous areas or substances
• the working environment, including adequate light and ventilation and minimising noise and vibration
• particular safety considerations such as working on roofs or at height, access for gutter and window cleaning, non-slip surfaces which are suitable for the workplace, ergonomics, indoor air quality, building access and any features essential to safe use of the building.

This list of suggestions is not necessarily everything you need to do or consider. You should have a detailed understanding of the intended use of the workplace and the nature of activities and tasks undertaken in the building so you can appropriately identify and eliminate health and safety risks. Guidance to assist designers in the process to be undertaken to discharge their duties is provided in the publication WorkSafe Victoria Designing Safer Buildings and Structures (2005) (see links below).

Back to top

Other regulation and design considerations

Merely complying with the National Construction Code and adopting published technical standards will not always discharge your safe design duty in respect of workplace health and safety risks. For each project, you should always consider your safe design duty and review, consult, plan and design accordingly.

There may be an overlap between incorporating measures in the design of the building to eliminate the health and safety risks in the workplace and compliance with the requirements in the National Construction Code (NCC). The NCC includes technical provisions and adopts Australian Standards regarding structural integrity, fire risks, safe access and egress and health and amenity issues such as flood and damp proofing, light, ventilation, waste and sanitation, among other issues. If there happens to be any overlap in the NCC requirements and how you design to eliminate or reduce, under the OHS/WHS legislation, this simply a nice convenience. You shouldn’t merely rely on the NCC or other standards or ‘industry practice’ as a point of reference when considering whether you have satisfied your safe design duty.

See Acumen note National Construction Code (NCC).

How can I become liable for a breach of section 28 of the OHS Act

Observe your Safe Design Duty: In summary, when you design you can generally discharge your duty to design a safe place of work if you:

• consult with the client/employer, workers, contractors and other designers involved in the project
• ensure that a proper risk assessment has been undertaken to identify the health and safety risks
• then adopt measures in the design to eliminate those identified risks.

It is important that you explain to the client and other parties, contractors and consultants involved in the construction process any high risks in the design requirements and to recommend alternatives and design modification to eliminate or reduce those risks. Your design must incorporate all practicable measures to eliminate any health and safety risk by adopting applicable standards or design solutions specific to the project.

It is a requirement in states other than Victoria to provide to the client a report and information on the results of any testing and assessment of any health and safety hazards in the design and any conditions necessary for the safe construction and use of the building or structure. For more information, refer to Chapter 9 of the WorkSafe Guidelines and Chapter 2 of the SafeWork Australia Code of Practice (see links below).

Intentionally liable?: It would be rare for an architect to knowingly design a building which may give rise to a hazard in the workplace. Prosecutions for ‘unsafe’ design of the workplace building or structure are not commonplace.

Negligent design: It is plausible that a designer who is found liable for the negligent design of a building may, in some circumstances, also become liable for prosecution under the OHS Act for failing to take all reasonably practicable measures to ensure the design of the workplace is safe.

You don’t need accident or injury: A designer can be prosecuted for a breach of the OHS Act even if a person has not been injured as a result of a safety risk in the building design.

Offences and penalties: If you fail to ensure your design is safe, you can attract a criminal offence carrying a monetary penalty (in Victoria) up to a maximum of approximately $380,000 for corporations (which could be your practice) and $75,500 for individuals (which could be you and each other designer who also failed to meet their safe design duty).

Engaging a consultant

In practice, an architect may protect against the risk of prosecution under the OHS Act by obtaining detailed instructions in regard to the use of and activities in the workplace and the requirements of the client. If the risk assessment is complex or the project large or particularly hazardous and the architect does not have in-house expertise for OHS and safe workplace design, it may be appropriate for the architect to recommend that the client engage a specialist OHS consultant, such as an engineer, ergonomist or occupational hygienist, to manage the risk assessment and to advise the client on control measures that can then inform your design.

Even if the client engages an OHS consultant, you the designer are still ultimately responsible for the safe design of the building, for those measures adopted to eliminate the risks and for satisfying your safe design duty. Engaging an expert consultant may however, go some way to discharging the architect’s duty in relation to the risk assessment and management process.

See Acumen note Specialist Consultants.

Insurance

A typical professional indemnity (PI) policy provides insurance cover in respect of claims for civil liability arising out of a breach of professional duty and will generally expressly excludes cover for fines and penalties. Accordingly, a PI policy may, without an extension of cover or an appropriate endorsement, exclude cover to designers in respect of OHS prosecutions and penalties for breach of the OHS Act. If however, a client, contractor or third party made a civil claim against the architect for breach of professional duty in respect of the ‘unsafe’ design, any damages awarded would be covered under the policy.

You could also seek an extension or an optional endorsement to the typical PI policy. If your insurer agrees to such an endorsement, this may provide cover for a proceeding or investigation in respect of an alleged breach of the OHS Act arising from professional design services and cover the costs of defending the proceeding and any civil penalties. This extended cover in respect of OHS penalties will generally be limited to an amount less than the policy limit and the typical sub-limit is in the order of $250,000 cover per claim. It is essential that you confirm with your broker whether your PI policy includes cover or to arrange extended cover for breaches of the OHS Act resulting from the provision of professional services.

In addition, architects and designers may be able to obtain a separate 'statutory liability' policy which may provide a higher level of cover for fines, civil penalties and associated legal costs arising out of safe design prosecutions.

We recommend that you speak to your insurance broker or get legal advice from a lawyer with expertise in insurance, litigation or OHS matters.

Back to top

Further reading

Further information on the duty of designers under the OHS Act to ensure the safe design of buildings and structures as workplaces is available in the following government guidelines.

Note that these documents are only guides and following the guides would not be a legal defence to failing to meet your safe design duty, but you may be able to rely on them to establish that you have adopted a reasonable process to comply with the legislation.

• WorkSafe Victoria (2005) Designing Safer Buildings and Structures
• SafeWork NSW (2019) Code of practice - Safe design of structures 
• Comcare Good work design

Back to top

This content was originally prepared by and reproduced with the kind permission of Jody Williams, Consultant at Perry Maddocks Trollope. ​It has since been updated for currency. The legal information and commentary in this note is general guidance only and not intended as legal or professional advice.