The Legal Minefield of Height Safety in Queensland

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Thursday, July 17th, 2014
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You wouldn’t knowingly walk across a mine field blindfolded, would you? Yet that is exactly what business owners and managers are doing every day in Queensland, allowing their employees and contractors to work at heights without knowing their legal duties under the Work Health & Safety Act 2011.

Under the Act, if you are considered a PCBU (Person Conducting a Business or Undertaking) then you are risking enormous fines and possible jail time if you are breaching your duties.

The legal landscape for all workplaces in Queensland forever changed with the introduction of the Work Health & Safety Act 2011. The Act came into force in January 2012.

Section 17 of the Act gives clear instruction:

“A duty imposed on a person to ensure health and safety requires the person-

(a)  to eliminate risks to health and safety, so far as is reasonably practicable; and

(b)  if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

If you are considering a fall arrest system, that means you have been unable to eliminate the risk of a fall and are now relying upon a height safety system to reduce the risks so far as is reasonably practicable.”

The standard way this is most often achieved is by inviting a set number of height safety companies to provide a quote to design and install a system. In most cases, the lowest quote wins. The PCBU feels that they have complied with their duty. They receive a compliance certificate and/or a form 16 and believe that the ultimate responsibility for the system is now held by the designer and installer.

Unfortunately, that belief is dead wrong.

In Section 14, the Act clearly states that a duty cannot be transferred to another person. It further states in Section 16 that more than one person can hold the same duty at the same time. This means that even though a third party company has designed and installed the system, the PCBU still holds their original duty, though this duty is now shared with the height safety company. They both have a joint duty with the legal obligation to fulfil their own duties irrespective of the other party.

What the Act has successfully achieved is to place a non-transferable legal duty upon each person who had some control or influence over a workplace with a fall arrest system. The duty is to ensure that:

  • It is designed correctly
  • It is installed correctly
  • Users are trained correctly
  • The risk of injury has been reduced as far as is reasonably practicable
  • If there is an incident, all parties are held responsible

As a PCBU, you should make yourself familiar with not only the Act but the Work Health & Safety Regulation 2011 and the Managing the Risk of Falls at Workplaces Code of Practice 2011. Section 275 of the Act states that a formal Code of Practice, while not enforceable within itself, can be used in court to show what you ought to have known about a height safety risk and what you should have done to control it. Hence it should form part of your guide when assessing risk.

When choosing a height safety company to design and install a height safety system on your behalf, remember that they are protecting your interests as a PCBU. You must feel confident that they are experienced and able to design a safe and compliant system. They should also be willing to teach you along the way so that you gain a better understanding of the system they have installed.

As a starting point, any company you consider must have the following:

  • A current QBCC licence that allows them to design, install and certify height safety systems
  • Full insurance
  • Authorisation by the manufacturer of the height safety system to install it

In addition, they should have an in-depth working knowledge of the following documents:

  • Work Health & Safety Act 2011
  • Work Health & Safety Regulation 2011
  • Managing the Risk of Falls at Workplaces Code of Practice 2011
  • Relevant Australian Standards for the system they are designing

A reputable height safety company will not only design and install a safe and compliant height safety system but will also provide you with the correct documentation and training and will be able to explain why the system is compliant and what factors had been considered.

Working at heights safely is a vital part of providing a safe workplace. It is important as a PCBU to have a sound understanding of your legal duties.

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