CFI SUITE CONTRACT DOCUMENTATION: WORK HEALTH AND SAFETY (WHS) GUIDANCE
WHS HAZARD/RISK AND ACTION LOG
FOR USE WITH MEDIUM WORKS CONTRACT
1. INTRODUCTION
(a) From 1 January 2012, the Work Health and Safety Act 2011 (Cth) (WHS Act) and the Work Health and Safety Regulations 2011 (Cth) (WHS Regulations) apply to all the Commonwealth (Defence), to Commonwealth employees, Commonwealth land and Commonwealth employees' activities on Commonwealth land (irrespective of which State or Territory the land is located in and whether that State or Territory has passed harmonised WHS Legislation).
(b) Defence has developed a WHS Hazard/Risk and Action Log (Log) to assist Defence, Contractors and PM/CA with the identification, management and control of WHS risks and hazards concerning projects. The Log is attached as Annexure A to this Guidance document.
2. Primary Duty of Care
(a) The WHS Act introduces the concept of a person conducting a business or undertaking (PCBU), which can apply broadly (e.g. simply as a person conducting a business or undertaking) or more specifically in respect of a particular context or task (e.g. a PCBU involving management or control of a workplace).
(b) Section 19 of the WHS Legislation imposes a primary duty of care on PCBUs to ensure, so far as is reasonably practicable, the health and safety of workers (not just employees). A PCBU has a duty to workers, including workers:
(i) caused to be engaged by the PCBU (e.g. any contractors or subcontractor's employees); and
(ii) whose activities are influenced or directed by the PCBU while the workers are at work in the business or undertaking (this includes workers engaged by others).
(c) The WHS Legislation also imposes a duty on PCBUs to ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk (e.g. visitors, other contractors engaged by the Commonwealth) from work carried out as part of the business or undertaking.
(d) The Commonwealth (not Defence in their own right) is a PCBU for the purposes of the WHS Legislation and owes the primary duty of care to workers and other persons in the circumstances contemplated above.
(e) Critically for Defence, the obligations and duties applicable under the WHS Legislation (including the primary duty of care) and the responsibility for discharging these duties cannot be delegated or contracted out of. The duties and obligations are the responsibility of the PCBU and can in some circumstances be shared with others (including those who are engaged under contract to discharge the duties on a PCBU's behalf).
3. Identifying, eliminating and managing WHS related risk
(a) Key to discharging WHS duties and obligations is the management of risk. The WHS Legislation provides that a duty holder must in managing risks to health and safety, identify reasonably foreseeable hazards that could give rise to risks to health and safety. Duty holders are required to manage risks by:
(i) eliminating risks to health and safety so far as is reasonably practicable; and
(ii) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
(b) If it is not reasonably practicable to eliminate risks to health and safety, a duty holder must implement control measures (a hierarchy of control measures is provided in Regulation 36 of the WHS Regulations).
4. What is ‘reasonably practicable’ in ensuring health and safety?
(a) Many of the duties and obligations under the WHS Legislation require a PCBU to fulfil that duty or obligation ‘so far as is reasonably practicable’. Under the WHS Legislation ‘so far as is reasonably practicable’ means that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters. There are two elements to determining what is reasonably practicable:
(i) what is possible in the circumstances to ensure health and safety; and
(ii) is it reasonable in the circumstances to do all that is possible?
(b) What is reasonably practicable is an objective test. This means a duty holder must meet the standard of behaviour expected of a reasonable person in the duty holder's position and who is required to comply with the same duty.
5. Duty to Consult, Co-operate and Co-ordinate
(a) Section 46 of the WHS Act imposes a duty to 'consult, co-operate and co-ordinate' (CCC) on duty holders when more than one person has a duty in relation to the same matter (or where there is a doubling up of duties by different persons under different WHS Acts).
(b) For example, where there is an obligation to CCC, duty holders are required to identify all relevant work health and safety matters and establish systems and processes to consult in regard to matters such as:
(i) identifying risks and hazards;
(ii) identifying actions to be taken to minimise or eliminate risks and hazards;
(iii) nominating responsible parties for management of risks and hazards; and
(iv) identifying or implementing control measures concerning risks and hazards.
(c) Critical to the application of the CCC duty is the related application of section 16 of the Act. Section 16 requires that where more than one person has a duty in relation to the same matter, each person retains responsibility for their duty concerning the matter and must discharge the duty to the extent to which the person can influence and control the matter. In order for a PCBU to discharge the duty it must institute management systems which disseminate, gather, consider, and action the information relevant to fulfilling the duty. Gathering information without critically assessing and actioning the information, as appropriate, is not sufficient to discharge the CCC duty.
6. How to Use the Hazard, Risk and Action Log
(a) It is a Defence requirement that the Log is developed prior to the commencement of the Contractor's Activities on Site by the Contractor, Defence and the PM/CA jointly. It must be updated regularly by the Contractor (and forwarded to the Contract Administrator), no later than 3 Business Days after the provision of any written report concerning work health and safety matters.
(b) The Log is to be reviewed regularly (in consultation with other PCBUs owing concurrent duties, including the Commonwealth and the PM/CA) and any necessary amendments made (including revised control measures). The revised Log is to be issued by the Contractor to Defence, the PM/CA and any other PCBU owing WHS duties concerning the matters the subject of the Log within 3 Business Days following the review.
(c) The Log is to be completed in accordance with the risk management methodology in the WHS Legislation and the Code of Practice 'How to Manage Work health and Safety Risks'.
(d) Examples of common hazards that should be addressed in the Log include the following:
· Noise
· Hazardous chemicals
· Synthetic mineral fibres
· Asbestos
· Machinery and equipment
· Heights
· Electricity
· Manual tasks
(e) The hierarchy of control measures to be applied in determining the management or risks is to accord with the diagram below.
Hierarchy of Control Measures
(f) The Contractor and Defence must keep records which demonstrate a risk management approach has been applied to the Project and the identification of hazards and risk. Records to be kept include the following:
(i) hazards that were identified, risks assessed and control measures chosen (including worksheets or assessment tools used in addition to the Log);
(ii) records of consultation, co-operation and co-ordination with concurrent duty holders;
(iii) how and when control measures were implemented, monitored and reviewed (in addition to the Log); and
(iv) any relevant training records.
7. Where to get help with using the Log
(a) To seek advice and guidance concerning the Log and its use, please contact:
Assistant Director, Capital Facilities Process and Compliance
(02) 6266 8757
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Annexure A
Department of Defence: CFI Branch
Work Health and Safety Template WHS Hazard/Risk and Action Log
Project Name:………………………………………..
Date Created:………………………………………..
Date of Meeting:……………………………………
Completed by:……………………………………… (Name and Title)
Reviewed control measures / Comments /
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