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WORK HEALTH AND SAFETY (WHS) GUIDANCE

DOCUMENT AND
WHS HAZARD/RISK AND ACTION LOG
FOR USE WITH MCC, HC MW MINOR WORKS AND DSC CONTRACTS

1. Introduction
(a) The Work Health and Safety Act 2011 (Cth) (WHS Act) and the Work Health and Safety
Regulations 2011 (Cth) (WHS Regulations) 1 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) A summary of relevant provisions in the WHS Legislation so far as they relate to risk
management are set out below.

(c) Defence has developed a template WHS Hazard/Risk and Action Log (Log) to assist Defence,
Contractors/Consultants and PM/CA with the identification, management and control of WHS
risks and hazards concerning projects. The Log is 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/consultants 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).

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Collectively WHS Legislation

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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,
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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. Duty to consult with workers and their representatives


(a) Section 47 of the WHS Act requires a PCBU to consult, so far as is reasonably practicable
with workers who carry out work for you who are (or are likely to be) directly affected by a
work health and safety matter. If the workers are represented by a health and safety
representative, the consultation must involve that representative.

(b) The definition of workers under the WHS Act includes an employee but also extends to a
contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a
labour hire company assigned to work at a Defence workplace, an outworker, an apprentice or
trainee, a student gaining work experience or a volunteer.

(c) Defence is therefore required to consult with workers and their representatives at each step of
the risk management process. Any relevant health and safety committee is also to be consulted
during the risk management process.

7. How to Use the Hazard, Risk and Action Log


(a) The Log should be developed prior to the commencement of the Contractor's/Consultant's
Activities on Site by the Contractor/Consultant, Defence and the PM/CA jointly. It should be
updated regularly by the Contractor/Consultant prior to each project meeting (and forwarded to
the Contract Administrator with the Contractor's/Consultant's monthly written report).

(b) The Log is to be discussed and any necessary amendments made (including revised control
measures) at each project meeting (and as necessary outside the project meeting environment).

(c) The revised Log should be issued by the Contractor/Consultant to Defence, the PM/CA and
any other PCBU owing WHS duties concerning the matters the subject of the Log following
the project meeting.

(d) The Log should 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'.

(e) Examples of common hazards that should be addressed in the Log include the following (as
relevant):

• Noise

• UXO

• Hazardous chemicals

• Synthetic mineral fibres

• Asbestos

• Machinery and equipment

• Heights

• Electricity

• Design risks
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• Manual tasks

(f) 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

(g) The Contractor/Consultant 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, and consultation with workers and their representatives;

(iii) how and when control measures were implemented, monitored and reviewed (in
addition to the Log); and

(iv) any relevant training records.

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