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Off-the-shelf safety systems warning

Documented consultation with workforce is needed when using such instruments, experts say

November 27, 2012

Two leading workplace relations lawyers have backed an academic’s warning that businesses should take care with off-the-shelf safety systems.

Norton Rose Partner Siobhan Flores-Walsh and Associate Matthew Orr have written in support of the position taken by Edith Cowan University Research Fellow Dr Susanne Bahn, who believes such systems can entail exposure to Work Health and Safety Act (WHS Act) provisions if worker consent is not first obtained by ‘persons conducting a business or undertaking’ (PCBU).

In relation to an article by Bahn in the Journal of Health and Safety Research and Practice, the lawyers note her position that the Act “imposes a duty on PCBUs to ensure, so far as is reasonably practicable, consult with workers in relation to WHS matters and the development of safe working systems” and to give workers “a reasonable opportunity to express their views and contribute to the decision making process”.

“This duty extends to a wide range of workers who may not be directly engaged by the PCB, such as employees of subcontractors,” the lawyers add.

“The problem with these generic products is that they are just that: generic.

“They do not take into account the many and varied WHS issues facing individual workplaces and workforces and do not include consultation with workers. It follows that PCBUs that rely solely on such safety systems are in breach of their consultation obligations under the WHS Act.

“While the courts are yet to consider what is required to comply with the new consultation obligations, it is difficult to see how blind reliance on ‘off-the-shelf’ safety systems could be compliant.”

A further complication is that section 27 of the Act “imposes a new, onerous, proactive duty on officers of a PCBU to exercise due diligence to ensure compliance with the WHS Act by the relevant PCBU”.

This means senior managers, who are likely to be captured by the broad definition of officer, and other officers who may have no role in the daily operation of the business or undertaking “must take reasonable steps to ensure that PCBUs comply with, among other obligations, those in respect of worker consultation”.

And the input needs to be documented.

“Ultimately, if a PCBU seeks to rely on an ‘off-the-shelf’ safety system, that system should be tailored, through consultation with workers, to take into account the specific work, workplace and workforce in question, to ensure both the PCBU and officers are compliant with the WHS Act,” the lawyers say.

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