Legislation all around the world has come a long way. In the above photo you can see the modern day steelworkers have re-created an iconic lunch scene while building a high rise structure. On the surface they may seem similar but when you look closer you can see many differences. Such as the safety helmets, high visibility clothing, long sleeve shirts, safety glasses and while not obvious, the harnesses undoubtedly connected to a safety line in the web of the beam.
What WA Legislation started off like
To understand the modern Plant & Machinery Legislation we should consider the history of plant & machinery since the early days of the industrial revolution, when many people were killed or injured by plant & machinery that had been made to mass produce goods in the most efficient and effective way. These early items of plant & machinery were designed and manufactured in an era when government legislation did not include specifications for the safety of this type of situation. The death and injury rates caused the general public and other eminent people to lobby the governments and politicians of the day to create legislation/laws that set out the requirements for design, manufacture and installation of plant & machinery. The governments created special departments for plant & machinery safety to be responsible for drafting the legislation and policing the legislation. Statutory Authorities were created and statutory officers such as “Chief Inspector of Machinery” were created who were made responsible for Machinery/Plant safety at workplaces. This included the design approvals and annual inspections. The Chief Inspectors had a large staff of inspectors that were responsible for registering & inspection of all types of plant & machinery.
Unfortunately, despite this high level of prescriptive legislation/regulation significant major incidents occurred even though the legislation/law was complied with. The highly prescriptive legislation/regulation had created an environment where engineers, manufactures, constructors, business owners, employees and the general public had come to completely rely on the government and the regulatory/statutory authorities to make the workplace safe and make decisions on safety for each work place. The investigations of major incidents such as Bhopal, Chernobyl, Piper Alpha, Longford revealed that while statutory/regulatory authorities were good at creating prescriptive legislation they were not significantly knowledgeable & experienced to fully comprehend every and all aspects of plant/machinery design, manufacture, installation, commissioning, operation, maintenance/repair and inspection. With the introduction of the Robens style legislation during the 1970 and then the “Duties Of Care” requirements for employers, employees, manufacturers the onus for work place safety has moved from government statutory authorities, statutory appointed officers & statutory appointed inspectors to being the statutory/mandatory responsibility of those at the workplace.
While the legislation has moved from a prescriptive style to a performance based, Duty of Care style, the same has been occurring with Australian Standards. Where in general terms rather than have specific wording that prescribes the exact technical specifications for the item the wording describes how an item must perform, what safety features it needs to have, how those safety features need to function and perform. Australian Standards are developed by Australian Standards committees that are separate from and independent of the Australian parliamentary legislation and regulatory development process. Australia Standards and have no standing in law until anyone or all of the following occur; Australian federal, state, territory or local government law/legislation calls up/references Australian Standards, a contract between two or more parties requires compliance with Australian Standards and/or any other legally binding arrangement/agreement requires compliance with Australian Standards. Australian governments and legislators are now moving away from calling up/referencing Australian standards directly in the legislation for a variety reasons such as the situations where the standards committees have a different set of outcomes and principals to that of the legislators, the committees are unlikely to have legislators as members. This can be seen with the National Workplace Health & Safety legislation first rolled out in 2012 especially the chapters for Plant and Structures. There are only a few Australian standards that are mandatory and these standards are only used to determine when the design registration and/or individual item of plant registration is applicable, AS4343, AS2030 & AS3533. The new national model legislation does not mandate Australian Standards for design, construction/manufacture, commissioning/testing, operation and maintenance. Some states place these as legislated codes of practice while others as suggested codes of practice. In Western Australia, the current Occupational Safety and Health regulations 1996 and the Mines Safety & Inspection Regulations 1995 both have a mandatory/statutory requirement for compliance with Australian Standards or equivalent standards that are recognised/referenced by a relevant Australian Standard.The development of Performance & Duty of Care style legislation and Australian Standards could be seen as process of de-regulation/de-prescription which provides for those at the workplace the ability & responsibility/duty to create a safe workplace based on their knowledge of what are the hazards at that workplace & best practice in eliminating and/or controlling those hazards. However, it could also be seen as a place where prescription & rules have been removed.
What does this really mean?
Imagine the scenario where the Road Traffic legislation is changed to remove the prescriptive regulations & rules and becomes a performance based Duty of Care style. Imagine what the road & driving experience would be like if the following changes were enacted.
- Remove all traffic lights, intersection signs, give way and stop signs. Then replace them with this “Navigate all intersections in a safe manner such that you do not endanger your own safety and you do not endanger the safety of other road users”.
- Remove all speed limits and replace with this “Travel at a speed that does not endanger your own safety, does not endanger the safety of your passengers and the safety of other road users”.
- Remove all illicit drug limits and replace with this “do not drive while under the influence of an illicit drug that; endangers your own safety, endangers the safety of your passengers and/or endangers the safety of other road users”
- Remove all blood alcohol limits and replace them with this, “do not drive with a blood alcohol level that endangers your own safety, endangers the safety of your passengers and/or endangers the safety of other road users”
- Remove all Australian Design Rules for the design, manufacture and testing of motor vehicles and replace them with this “Designers & Manufacturers of motor vehicles must design, manufacture and test all motor vehicles in accordance with a published standard so that the vehicles produced/manufactured to that published standard do not, endanger the safety of the driver, endanger the safety of the passengers, endanger the safety of any other people and/or road users.”
I am sure that the Australian people & governments would be very unlikely to ever consider a move to deregulate the Australian road traffic legislation which removed the current level of prescriptive and precise rules & regulations and implement the above dot points. However, from the view point of many in the industry, that’s what has happened in the Australian Work Health & Safety legislation reforms, prescription and precision has been replaced with generalised performance based duty of care statements that are at times difficult to interpret and apply in all cases and scenarios. Often there is much debate regarding what the performance based duty of care style legislation and codes of practice demands the engineering team does to comply with the legislation and make plant and machinery safe. It seems often that there are multiple opinions, ideas and choices for the workplace engineering teams to make, but definitive answers may not be known until the plant or machine has completed the full life cycle through design, manufacture, operation, maintenance and disposal without incident or failure.
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