The model WHS Acts and Regulations

1    Introduction

While Victoria and Western Australia have not adopted the WHS Act to replace their legislation at the time of preparing this document, most of the principles described here are equally applicable to good WHS practice for architects.

The WHS Act was developed under a Federal Government initiative to provide a harmonised work health and safety framework throughout Australia.

Although this document outlines or describes reference material on the crucial principles of the WHS Act, it is wise to be familiar with any specific guidance on the relevant provisions of your state or territory's particular version of the WHS Act, including its WHS Regulations setting out some particular requirements.

To do this, you will need to go to the relevant WHS regulator’s website, eg SafeWork NSW, or for other official government websites, see the Safe Work Australia website.

The general WHS Act principles are to be applied in all aspects of practice, including all the internal operations of your practice as a business entity.

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2    Salient and fundamental principles of the WHS Act to keep in mind

a. Virtually any business, whether sole practitioner or not, is a 'Person Conducting a Business or Undertaking' under the WHS Act, called a 'PCBU' in the WHS Act and in this document. Most volunteer and not-for-profit organisations are PCBUs as well.

b. The model WHS Act is criminal legislation with serious implications. Penalties for breach include significant fines and/or jail terms. It is prudent to note that the adoption of criminal offence varies between states and territories. Queensland has had an industrial manslaughter offence in the WHS Act 2011 (QLD) since 2017, though these offences may fall under other laws in different states and territory.

c. Everyone, individually and as representatives of the PCBU who is involved or connected with any workplace, either their own PCBUs, or one associated with the work the PCBU does, has shared and collective responsibilities to achieve work health and safety. Contractual allocations and limitations of duties and responsibilities are not an excuse for lack of safety diligence under the WHS Act. It no longer matters that a situation is not your responsibility according to convention or contract/agreement.

d. ‘The role and influence you have in a business determines if you are an ‘officer’ under model WHS laws. This is different for each person and each business.

Are you the owner or operator of a small practice? Do you make big decisions about all or part of your business? Can you affect your business’s financial standing?

If you answered yes to any of these, you may be an officer and have an obligation under WHS laws to demonstrate a proactive approach to WHS matters. As an officer, you must exercise due diligence to ensure your business meets its WHS duties. This includes:

• making sure your workers and other persons are protected against harm, and
• making sure your business has suitable safe work systems in place’ (Commonwealth of Australia, 2020).

Safe Work Australia’s website provides additional guidance on the obligations of an officer, including:-

• 'Keep your WHS knowledge up-to-date.
• Understand your business and its WHS hazards and risks.
• Make sure your business is properly resourced to manage WHS risks, and check that the resources are being used.
• Make sure your business has reporting processes for incidents, hazards and other WHS issues, and check that these processes are being followed’ (Commonwealth of Australia, 2020).

For more detail refer to the Safe Work Australia website.

e. Part of this shared responsibility is a requirement to communicate with the others who have WHS duties in relation to the workplace concerned.

f. What you individually do, or the PCBU does, to achieve work health and safety for a workplace in any set of circumstances, depends on what is 'reasonably practicable'.

g. There is no one system or method of 'compliance' with the WHS Act. The obligations to be safety conscious and prevent WHS risks require constant vigilance – this is the deliberate intention of the WHS Act's 'design'. It is intended to prevent reliance on formularised codes and practices in order to avoid complacency – in other words to promote 'continuous improvement'.

h. Practically speaking, this makes day to day compliance a challenge and it is impossible to give reliable guidance on how to avoid falling foul of the WHS Act's requirements. What is really meant by reasonably practicable awaits testing in the Court system, after there is one, or several WHS incidents – more on this follows under the heading Codes.

i. Reference is made in available literature, including this document, to a Code of practice. It is very important to understand, that under this WHS Act, a Code of practice is not a 'code' you can follow and then if you have done so, be safe from prosecution under the WHS Act. A Code provides guidance which a Court may take to indicate that the person charged under the WHS Act has, if they have followed a Code of practice, met their duties and obligations sufficiently to avoid penalty.

j. However, if the prosecuting authority puts to the Court that some other preventative measure different to, or in excess of the Code of practice 's requirements, would have saved the victim, the Court has to decide whether Code of practice compliance was enough, or was all that could reasonably practicably be done at the time and in the circumstances. Existing WHS case law shows that prosecuting authorities are prone to putting arguments of this nature to the Courts. Getting to the point where there is a body of Court precedents that will show individuals or PCBUs what is reasonably practicable, if it is ever achieved, is likely to be a long process, and as noted above, the WHS Act is intended to promote continuous vigilance, not comfort, for individuals or PCBUs.

k. By no means least, is that a designer, under specific duties, must so far as reasonably practicable, design a workplace without risk to the health and safety of persons at the workplace, who:

• build it
• work at it
• visit it
• maintain it
• demolish it.

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3    Codes of practice

A range of national Codes of Practice developed by Safe Work Australia currently exist. These have been adopted to various degrees in individual state WHS laws. A range of codes of practice apply to management of WHS in an architectural practice. Examples of relevant codes include:

• Code of Practice: How to manage work health and safety risks
• Code of Practice: Work health and safety consultation, cooperation and coordination
• Code of Practice: Managing the work environment and facilities

Additional information on codes of practice and other guidance can be found here.

Safe Work Australia’s Code of practice - Safe Design of Structures ‘the Code’ is particularly relevant to architectural design work. Note that under the WHS Act, buildings are classified with other things like bridges, as 'structures' – there is no distinction made.

Bearing in mind what is said under section 2 (i) above about codes of practice under the WHS Act, and the meaning of what is reasonably practical, this Safe Work Australia Code of practice - Safe Design of Structures outlines some methods on how to achieve what is required under the WHS Act, and a methodology for determining what is reasonably practicable in any given circumstance.

Codes of practice are written around the requirements of the WHS Act. The best way of avoiding non-compliance with the Act is to understand the WHS Act's requirements thoroughly, and through doing that, adopt a structured proactive management of risks. Reading Codes of practice carefully in their entirety is the best way to do this and we urge you to do so.

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4    Definitions

To assist your reading any Code of practice, there are some definitions in the WHS Act that it is important to be familiar with, that will assist in your understanding of what is required, and assist in your communications with the other duty holders.

Workplace is the place where work is carried out, and any place where a worker goes and is likely to be while at work.

Worker is a person who works for a PCBU, and it includes a director, partner, principal, employee, student, trainee, a volunteer, and a contractor or subcontractor while at your workplace, even if the latter two are just there to fix something.

Designer includes architects, but also anyone who designs, modifies a design, or designs part of a structure, which as noted above, includes a building, among other things.

Construction work is building work to the value of $250,000 or above (but check your state and territory regulations if this is of relevance to you).

Officer ‘is defined by reference to the definition of ‘officer’ in section 9 of the Commonwealth Corporations Act 2001 (the Corporations Act). It also includes officers of a business or undertaking of the Crown (the Commonwealth, a state or territory) and officers of a public authority’ (Safe Work Australia, 2018). Refer to the Safe Work Australia website for more information.

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5    Specific designer obligations

There are some specific duties of a designer specified in the WHS Act, but these are not the only duties – see all of the above.

a. Calculations and testing. The designer of a workplace must carry out, or arrange the carrying out, of any 'calculations, analysis, testing, or examination' needed to 'ensure' the workplace is designed without risk to health and safety. Because there is now a legal obligation on you under the WHS Act to carry out, or arrange these, the contractor may try to argue that the cost ought to be borne by the architect as a statutory obligation, seeking to gain advantage as a consequence by reducing the tender price to the Client. You should be careful that all of these requirements remain, and are clearly expressed in the contract documentation to be, the contractor's responsibility, as has been the long-standing practice in the construction industry, so that what you have done is arrange for them to be carried out, in accordance with your duty under the WHS Act.

b. Information transfer. The designer must give 'adequate' information to the person commissioning the design (the client) and if requested, anyone who is about to construct the workplace, maintain the workplace, use it, or demolish it, concerning:

• the purpose for which it was designed, and
• any conditions, methods of use, or other requirements needed to 'ensure' the structure and workplace it provides is without risk to health and safety of workers at the workplace during construction, intended use (maintenance), or demolition.

c. The safety report. As required by the Regulations under the WHS Act, the designer must give a written report to the person who is a PCBU commissioning the design (the client), specifying hazards and risks associated with your particular design that apply to its construction, which are out of the ordinary for that type of structure.  Obviously, what you consider to be ordinary, or 'out of the ordinary', is a matter for your judgement in the circumstances, but under the overarching principles of the WHS Act, if prudent, you would only decide that after consultation with others available to you who have WHS duties in relation to that workplace, for example, the services and structural consultants, the builder, if available, and your client itself. However, see below.

d. Residential design. Note that a residence, or renovation to one, is a structure for the purpose of a Safety Report, even if the construction work is not 'construction work' of $250,000 or more value. However, there is some doubt whether a house owner as a client commissioning the design is a PCBU for the purpose of the WHS Act, if the house is not being, or is to be, used as a workplace. Given that doubt, and that it will depend on, say, whether the client does, or intends, to run a home business, it is recommended to err on the side of caution, and treat your client as a PCBU, for which a Safety Report would be required. Whether or not the Safety Report is actually required, will then depend on whether you identify hazards and risks associated with your particular design that would apply to its construction which are out of the ordinary for that type of structure.

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6    Your client's duties

a. Consultation. As a PCBU that commissions construction work, your client must consult with you as the designer, as well as all other persons who have duties in relation to that workplace, such as the builder who will be, or is, constructing it. As part of that consultation, the client must also give you, the designer, any information it has in relation to hazards and risks at the workplace where the construction is to be carried out, while it is being carried out, and hazards and risks brought about by its requirements for the design of the workplace that will be created as a result. This includes any particular maintenance requirements, such as in specialised buildings.

As you are prudently treating your residential client as a PCBU, you wisely would consult with your client about how to eliminate any health and safety risks arising from your design during its construction, and in your brief, obtain particular requirements for the occupancy of the residence concerning health and safety. It is prudent to consider hazards, and associated risks impacting the whole of the structure’s lifecycle, and, where ‘reasonable practicable’, eliminate or mitigate these.

b. Safety Report. The PCBU that commissions construction work (your Client) must pass on any Safety Report to the builder. Because there is uncertainty about this in relation to residential work, including contradictory advice from some WHS authorities, some builders may say, based on their assessment of whether the client is a PCBU, or advice received from their professional association, or from the WHS authority, that it is not required, and tell your Client this. Neither you nor your Client should rely on the builder's assessment. Whether the contractor chooses to accept what your Client gives them, or through you as the Client's agent, is up to them.

c. Different contractual relationships. Who your Client actually is in the procurement process will depend on the actual process. Your Client will be one of several possibilities in anything other than traditional lump sum procurement. The Code discusses the differences in consultation and information transfer responsibilities among different forms of procurement, such as Design-Construct, and others.

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7    Other requirements of you, as the designer

a. Keeping records. The WHS Act requires that at any time in the future the designer must, if requested, and so far as reasonably practicable, give to anyone who is about to use the workplace, maintain the workplace or work on the workplace as a builder or demolisher, the current information about:

• The purposes (uses) for which the structure was designed
• The results of the 'calculations, analysis, testing or examination' including hazardous properties of substances tested
• Necessary conditions to be satisfied to ensure that the structure is without risks to health and safety when used for its designed purposes, its construction, or its maintenance or demolition.

The Code recommends establishing a WHS file for each project, that would include copies of all relevant health and safety information the designer prepared and used in the design process, such as the safety report (if applicable), risk registers, safety data sheets and records of any procedures considered or developed in design or construction for safe maintenance or eventual demolition.

b. Transfer of Documentation. As noted above, the Client (PCBU who commissions a construction project) is responsible for issuing a copy of a safety report to the Principal Contractor. It is conceivable that after considering it, the Contractor requests changes to the contract documentation so that it can meet its WHS responsibilities. In some circumstances, such as lump sum procurement, the architect could arrange with the client to have the report included in the documents for tender. This may prevent 'surprises' after the contract is signed in the form of variation requests.

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8    Impact on actual design

Safety consciousness should have an impact on design. The difference between a designer's responsibilities after the WHS Act's introduction varies somewhat between jurisdictions. The WHS Act spells out the obligations of architects to apply the key principles of risk management and safety in design across their projects. Ensuring clear accountabilities, coordination, consultation, and lines of communication between duty holders with shared obligations, including clients, lead designers, and their subconsultants, and contractors, is important. 

There is increasing emphasis by clients — particularly state governments, councils and clients who have building assets they control — to consider design solutions to reduce inherent risks. Similarly, there is an onus on lead designers to facilitate and coordinate WHS risk management and safety in design processes, including any subconsultants.

The WHS Act’s more stringent obligations on clients (owners) to ensure health and safety will drive a wider acceptance of  design solutions which consider and facilitate safer construction, maintenance, operations and decommissioning.

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References

• SafeWork Australia - Model WHS legislation 
• Safe Work Australia - Model Codes of practice
• Safe Work Australia - Safe Design (see section: Legal obligations)
• Commonwealth of Australia 2020, Safe Work Australia ‘Officer duty’
• Safe Work Australia, 2018, ‘The health and safety duty of an officer’, 20 Dec 2018.