The national harmonisation of the OHS laws, especially for larger national corporates, promised to reduce administrative costs and create economies of scale.
Streamlining the different state OHS compliance requirements and creating nationally consistent safety standards should lead to greater certainty and understanding of OHS laws and ultimately better safety outcomes for all businesses.
The harmonisation deadline set by the Council of Australian Governments (COAG) in 2008 was 1 January 2012, but that deadline has well and truly passed with us seemingly no closer to the desired end state. With Queensland, NSW, the two territories (ACT and NT) as well as the Commonwealth passing the laws, we have four states yet to enact the changes.
Both South Australia and Tasmania may introduce the legislation in the near future as the bills go back and forth within state parliament. However Victoria and Western Australia have absolutely no urgency. The legislation seems to be a fair way off whilst both governments talk about the significant time needed to further assess its impact on their states.
There are many complexities involved in creating a safe workplace – the technicalities of machine and plant safety, enacting behavioural safety and culture change programs, stimulating workforce ownership and safety leadership, as well as all the OHS compliance requirements.
At such a time, the last thing businesses need is a confusing legislative framework and a national harmonisation program in limbo.
However, there is no doubt harmonisation will occur. It is just a matter of how long and what concessions the Federal Government will provide to ensure the states enact the changes.
Under the new legislation, the requirements and duties relating to the person involved in machine safety have been significantly widened. A person conducting a business or undertaking (PCBU) still has the primary duty, under the Act, to ensure and provide a safe work place as far as reasonably practical.
However, there is now more onus on other persons involved with the total life cycle of the plant to ensure compliance with the legislation.
The designer plays a critical role in designing, redesigning or altering plant and needs to be able to demonstrate that the plant is designed without risks to health and safety for the entire life of the plant.
A large proportion of machine injuries (42 percent of fatalities) are a result of poor design and hence the increased focus from an OHS perspective in ensuring machines and plant are designed properly from a safety view point.
The manufacturer, importer/ supplier and installer all have similar obligations in areas over which they have control. They are obliged to manage the risks associated with health and safety and need to take all measures so far as reasonably practical.
The recent increase in online retailers of second hand plant and equipment has opened an interesting area of debate as a number of the sites sell equipment "as is" or "buyer beware" or simply purport to create an environment where a seller can find a buyer and try to remove themselves of any obligation with regards to ensuring the equipment being sold is safe.
The code is quite clear in that second hand plant suppliers, so far as reasonably practicable, identify all faults and must advise the designer, manufacturer and installer if the plant requires any alteration as a result of hazard identification or testing.
There is also more emphasis on inspection and testing as well maintenance of the safety system of the plant. Regular inspection of the physical plant, formal testing of safety functions, such as stop time measurement as well as ensuring the machine is still operating within the design limits all have stronger emphasis in the new legislation.
As is often the case, a sole business or company may have more than one duty, especially when a lot of these tasks are conducted in house or by the same business or person. What is thought initially to be a simple onsite modification to the safety system means the person changing the system will be required to adhere to the duties of a designer, manufacturer, installer and maintainer.
This is something that cannot be taken lightly and the ramifications of unintended consequences can be severe if it cannot be demonstrated that they changes have been properly designed, risk assessed and validated.
The new act regularly refers to a Competent Person and defines them as a person who has acquired through training, qualification and experience, the knowledge and skills to carry out the respective work.
However in the case of design and inspection of plant, a competent person has a more specific meaning and the person must also have educational or vocational qualifications in an engineering discipline relevant to the plant being designed or inspected.
TUV Certified Machine Safety Expert (CMSE) is one such example of a generally accepted industry qualification with regards to machine safety.
The new legislation does not specifically mandate the required standards which would constitute compliance. However Safe Work Australia have issued an approved code of practice for managing risks of plant in the workplace (and have proposed further codes of safe plant design, manufacture, import and supply) which in most cases would demonstrate compliance with WHS Act and Regulation.
This code then references a number of standards of which the predominant standard is AS4024.1:2006 when it comes to safeguarding of machinery. A number of prior OHS judgements have seen this standard given the same relevance as an expert opinion but a breach of this standard will not necessarily mean a prima facie breach of the obligation under the Act.
There are also a number of international standards and more specifically those related to the European machinery directive (2006/42/EC) and the new ISO13849-1:2006 (Safety of Machinery) standard. A common misconception is that if a machine has been imported and "CE Marked" then it is fit for use in Australia.
This is certainly not the case and the importer/ supplier still has an obligation ensure all risks have been eliminated so far as reasonably practicable on the imported equipment.
There is also a trend towards applying functional safety concepts outlined IEC61508 (functional safety of electrical/electronic/programmable electronic safety-related systems) combined with IEC61511 (process) or IEC 62061 (manufacturing) on more complex machinery safety installations especially where larger programmable safety systems are implemented.
These stem from use in the oil and gas, petrochemical and rail industries but are certainly being applied in mining as well as manufacturing. The line is certainly grey from where it moves from machine safety to functional safety with respects to the different standards.
There are many arguments for and against the various standards and how they are applied and implemented, whether one uses Categories, Performance Levels (PLs) or Safety Integrity Levels (SILs) to quantify the required safety systems performance to adequately address the identified level of risk from a design perspective.
Common to all is the basic framework of risk assessment and hazard identification, risk elimination/ reduction and validation.
Hopefully the remainder of states will not take too long to enact the new legislation. Regardless of the eventual outcome, there are a number of simple measures one can take in the lead up to harmonisation. Firstly, invest in training for your people.
A good starting point is a short one- or two-day course covering an overview of machine safety and the obligations associated with the individual's role. Understand the meaning of a competent person and how this relates to your business.
If you conduct design or modification activities in-house, ensure your people are appropriately qualified. If machine design or modification is outsourced, ensure your integrator can demonstrate their competency in this area.
Treat the safety system with the respect it deserves and have proper processes around changes and testing. There should also be regular inspection and testing schedules and differentiate this from your machine or process control systems.
Too often safety system changes are an afterthought of machine or process changes and upgrades. In a perfect world one would hope not to have to operate the safety system, but when you do, you need to absolutely sure it is going to operate as designed, 100 per cent of the time. People's lives depend on it.
[Scott Moffat is Managing Director, Pilz Safe Automation.]