Workplace health and safety and autonomous systems

ByAAUS - RAS Gateway

Author: Trusted Autonomous SystemsPublished: 04/08/2022Category: Body of KnowledgeLast updated: 10/08/2022

In Australia, workplaces are subject to workplace health and safety (WHS) or Occupational Health and Safety (OHS) laws, including workplaces where autonomous vehicles and systems are used. These are likely to fall under the definition of ‘plant’.1 It should be noted at the outset that there are limited specific examples of how WHS will apply in relation to autonomous vehicles and systems or the extent of the duties owed by duty holders in this respect. It is also unclear how WHS laws apply to non-physical ‘systems’ or digital infrastructure that humans interact with in the workplace.

This section considers the broad requirements that are generally imposed by WHS laws across jurisdictions; however, it should be noted that specific aspects, including in relation to particular industries, or particular kinds of plant, may differ.

  1. Safe Work Australia, Plant design, supply and registration Safe Work Australia, accessed 25 August 2021, Plant design, supply and registration | Safe Work Australia. Plant includes any machinery, equipment, appliance, container, implement and tool, and includes any component or anything fitted or connected to any of those things. Plant includes items as diverse as lifts, cranes, computers, machinery, conveyors, forklifts, vehicles, power tools and amusement devices. Plant that relies exclusively on manual power for its operation and is designed to be primarily supported by hand, for example a screw driver, is not covered by the WHS Regulations. The general duty of care under the WHS Act applies to this type of plant. Certain kinds of plant, such as forklifts, cranes and some pressure equipment, require a licence from the WHS regulator to operate and some high-risk plant must also be registered with the WHS regulator. ↩

Who is involved in Workplace Health and Safety?

  • state and territory responsible ministers: state and territory ministers are responsible for approving codes of practice before they apply in their respective jurisdiction
  • state and territory WHS/OHS regulators: state and territory WHS and OHS regulators are responsible for the administration of state and territory WHS/OHS laws, including monitoring and enforcing compliance, and providing advice and information on WHS duties
  • Comcare: Comcare is the Commonwealth WHS regulator under the Model WHS Act insofar as it applies to Commonwealth workplaces. It has the same broad responsibilities as state and territory regulators
  • Safe Work Australia: SWA is an Australian government statutory body established to develop national policy relating to WHS and workers’ compensation, working with governments, employers and employees. It is not a regulator.

Workplace Health and Safety duty holders

WHS laws require designated duty holders to ensure, so ‘so far as reasonably practicable’ the health and safety of workers.1 Duty holders include:

  • a person conducting a business or undertaking (PCBU): A PCBU has the primary duty to ensure, so far as is reasonably practicable, the provision and maintenance of a safe work environment. This duty includes ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant and the safe use, handling, storage and transport of plant. A PCBU can be an individual or a company, and can include a government department or private employer.2 Examples of where a PCBU will have a health and safety duty includes when the PCBU engages workers to carry out work; directs or influences workers in carrying out work; other people may be put at risk from work carried out in their business or undertaking; and the PCBU manages or controls a workplace or fixtures, fittings or plant at the workplace.3)
  • officers of corporations and other organisations (e.g. company directors): officers must exercise due diligence to ensure that the organisation is complying with WHS law and ensure that the business or undertaking is using appropriate resources and processes to eliminate or minimise safety risks that arise from the use of plant in the workplace.4)
  • designers, manufacturers, importers and suppliers of plant: these ‘upstream’ duty holders must ensure, so far as is reasonably practicable, that the plant that they design, manufacture, import or supply is without risk to health and safety.5) This duty includes carrying out testing and analysis as well as providing specific information about the plant, substance or structure. In particular,
    • designers have a duty to ensure, so far as reasonably practicable, that the plant is without risks to health and safety to workers throughout the life of the plant
    • manufacturers have a duty to ensure, so far as is reasonably practicable, that the plant is manufactured to be without risks to workers throughout the life cycle of the plant. Manufacturers must advise the designer of any hazards they identify during manufacture and ensure that hazards are not incorporated into the manufacture of the plant.6)
  • workers: workers have a duty to take reasonable care for their own health and safety and to not adversely affect the health and safety of other persons. Workers must comply with reasonable instructions so far as reasonably practicable and cooperate with policies and procedures, and other persons at the workplace, such as visitors and customers.7)

  1. Safe Work Australia, Duties under WHS laws Safe Work Australia, accessed 25 August 2021, Duties under WHS laws | Safe Work Australia ↩
  2. Safe Work Australia (2018) Model code of practice: How to manage work health and safety risks Available from Model Code of Practice: How to manage work health and safety risks (safeworkaustralia.gov.au) ↩
  3. Safe Work Australia (2018 ↩
  4. Safe Work Australia (2018 ↩
  5. Safe Work Australia (2018 ↩
  6. Safe Work Australia (2018 ↩
  7. Safe Work Australia (2018 ↩

Meaning of ‘so far as reasonably practicable’

“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 including:

  • the likelihood of the hazard or the risk concerned occurring
  • the degree of harm that might result from the hazard or the risk
  • what the person concerned knows, or ought reasonably to know, about the hazard or risk, and ways of eliminating or minimising the risk
  • the availability and suitability of ways to eliminate or minimise the risk, and
  • after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. What is ‘reasonably practicable’ is an objective test.1

There are two elements to what is ‘reasonably practicable’. A duty-holder must first consider what can be done – that is, what is possible in the circumstances for ensuring health and safety. They must then consider whether it is reasonable, in the circumstances to do all that is possible. This means that ‘what can be done should be done’ unless it is reasonable in the circumstances for the duty-holder to do something less.

  1. Model WHS Act, section 19 ↩

Managing risk

Duty-holders are required to manage risks to health and safety in accordance with the Model WHS Regulations, including to identify hazards, apply and maintain a hierarchy of risk control measures and review those control measures. The Regulations also include specific requirements about the management of risks in relation to plant, electrical safety and energised electrical work, and mines.1

  1. Safe Work Australia (2018) Model Code of Practice: Managing the risks of plant in the workplace Available from Model Code of Practice: Managing the risks of plant in the workplace (safeworkaustralia.gov.au) ↩

Prescriptive requirements for managing risks in the workplace

The Model WHS Regulations imposes some specific obligations in relation to plant, including:

  • certain items of plant and types of plant designs must be registered. This includes design registration, which is the registration of a completed design, and item registration, which applies to specific items of plant. In order to have an item of plant registered, it must be inspected and a statement provided by a competent person stating that plant is safe to operate
  • that operators have a high risk work licence to operate certain types of plant,1 and
  • that competent persons are required to perform certain roles, including in relation to installing or commissioning plant, altering the plant or design of the plant, changing the way it is used or change a system of work associated with the plant, or using plant in a different way or for a purpose that it was designed for. Maintenance, inspection and testing of plant must be carried out by a competent person in accordance with manufacturer’s recommendations, or if those aren’t available, in accordance with recommendations of a competent person.2

The Model WHS Regulations capture ‘amusement devices’ – broadly, amusement rides and structures – and specify a range of broad requirements that may be instructive to duty-holders in relation to certain autonomous vehicles and systems. These include the person with management or control of the amusement device must ensure

  • that it is checked and operated before it is used
  • that daily checks of the device are recorded in the log book for the device
  • that a record of the operator having completed instruction and training and being determined as competent to operate the device be included in the log book for the device
  • that if the device is to be installed, assembled, constructed, commissioned, decommissioned, dismantled or stored, details of the competent person or persons carrying out this work is recorded in the log book for the device
  • that maintenance, inspection and testing is carried out by competent persons
  • that the device is stored appropriately,
  • that a detailed annual inspection is carried out at least every 12 months, and
  • that there is a major inspection every ten years.3
  1. There are 29 classes of high risk work licences to use the following types of plant and equipment, including scaffolding, forklifts, hoists, cranes, pressure equipment, rigging and dogging equipment and elevating work platforms. ↩
  2. Model WHS Regulations, regulation5: Competent personmeans a person who has acquired through training, qualification or experience the knowledge and skills to carry out the task. ↩
  3. Safe Work Australia (2016) Guide for amusement devices Available from General Guide for Amusement Devices (safeworkaustralia.gov.au) ↩

Workplace Health and Safety codes of practice

Codes of practice developed by Safe Work Australia and approved by Transport Ministers, provide practical guidance on how duty holders, such as PCBUs, can discharge their duty so far as reasonably practicable.1 Under WHS legislation, a duty holder must comply with an approved code of practice or follow another method, such as a technical or industry standard, if it provides an equivalent or higher standard of WHS than the standard required by the code of practice.2

Codes of practice are admissible in court proceedings as evidence of what was known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.  Safe Work Australia has developed a model code of practice, Managing the risks of plant in the workplace that provides general guidance on the requirements that the Model WHS Act imposes in relation to plant, and how duty holders can manage their obligations in this respect. There have been no specific codes of practice developed that relate to autonomous vehicles and systems. However, it is possible that the development of model codes of practice by Safe Work Australia in relation to certain aspects of autonomous vehicles and systems could be useful to providing practical guidance on how duty holders can manage the hazards and risks that may be associated with them.

  1. Safe Work Australia also develops model codes of practice to provide practical guidance for PCBUs who have duties under WHS legislation in relation to particular matters. To have legal effect in a jurisdiction, the model code of practice must be approved as a code of practice in that jurisdiction. ↩
  2. Model WHS Act, section 274. For example, an ISO standard. Codes of practice often refer to ISO standards that have been developed to manage particular risks and hazards. ↩

Flexibility mechanisms

WHS legislation generally allows for PCBUs to take a ‘risk-based’ or ‘outcomes based’ approach to managing the hazards and risks of using plant in a workplace by requiring duty holders to ensure safety ‘so far as reasonably practicable’. This underpins the general safety duties approach taken in the on-road sector regulating ADSEs, and is well-suited to managing the diverse range of risks and hazards that are found in equally diverse workplaces. Accordingly, WHS laws provide significant flexibility to duty holders to identify and manage the risks associated with autonomous vehicles and systems in workplaces. To the extent that further prescription is required, the further development of Australian Standards and ISO safety standards will continue to fill gaps in this respect, particularly if those standards are adopted through nascent industry schemes.

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