MOVING TOWARDS NATIONAL HARMONISATION IN AUSTRALIA: THE DESIGNERS DUTY OF CARE FOR DESIGNING BUILDINGS AND STRUCTURES

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1 MOVING TOWARDS NATIONAL HARMONISATION IN AUSTRALIA: THE DESIGNERS DUTY OF CARE FOR DESIGNING BUILDINGS AND STRUCTURES Paul Breslin, Brookfield Multiplex, Australia ABSTRACT National and international research indicates that poor design and poor planning are contributing factors in a significant number of deaths and injuries in the building and construction industry. A major European study claims that two thirds of deaths in the industry can be attributed to poor design and poor planning. In Australia, legislative frameworks continue to be developed both nationally and at the state and territory level to include design as an integral component of safety in the workplace. The design profession s statutory duty for designing a building or structure varies under the current OHS frameworks across all Australian jurisdictions. One Australian association claims that the varying OHS frameworks reduce the capability and the competence of employers and consultants to understand their OHS obligations across the jurisdictions. National harmonisation of occupational health and safety (OHS) has been on the national agenda for two decades in Australia. The business community in Australia has long been claiming that OHS reform is required to reduce the regulatory burden on employers and employees operating across all jurisdictions. This article examines the economic and social costs of failing to eliminate hazards at the design phase of a construction project. It provides an overview of the design profession s statutory duty for designing a building and structure under the current OHS frameworks. Furthermore, this article examines and discusses whether national harmonisation of OHS will improve OHS performance and reduce the regulatory burden on stakeholders across all Australian jurisdictions. Keywords: Construction, Designers, National harmonisation, Legislation OHS LEGISLATIVE FRAMEWORK IN AUSTRALIA Currently there are ten principal OHS statutes across Australia, six states, two territories and two Australian Government acts, one relating to Australian Government employees and the other relating to seafarers. There are also other state based industry specific safety laws such those covering mining in New South Wales and Queensland (The Australian Department of Employment and Workplace Relations 2005). Historically the state and territory governments in Australia have taken a broadly similar approach to regulating OHS. This approach involves a principal OHS act codifying common law duties of care, supported by detailed regulations and codes of practice, and a system of education, inspection, advice, compliance activities and, where appropriate, prosecution (Australian Government 2008). However, despite this commonality across jurisdictions, there remain differences as to the form, detail and substantive matters in relation to OHS legislation, particularly in regard to duty holders and duties, defence mechanisms and compliance regimes, including penalties (Australian Government 2008). 1

2 In Australia there is no consistent legal definition of duty of care in the OHS legislation implemented across the various jurisdictions. This leads to confusion about legal obligations amongst stakeholders that operate across the jurisdictions. OHS duty of care obligations are not always based on what people reasonably and practically control in the workplace as required under international obligations (Business Council of Australia 2007, p. 4). NATIONAL HARMONISATION National harmonisation has been on the national agenda in Australia for two decades (Bellamy). Harmonisation refers to the notion that the differences in laws and policies between various jurisdictions be reduced by adopting and implementing similar laws and policies across the jurisdictions (Brown & Furneaux 2007). The Australian Federal Government has committed to working cooperatively with state and territory governments to achieve the important reform of harmonised OHS legislation within five years and to develop and implement model OHS legislation as the most effective way to achieve harmonisation (Australian Government 2008). The model legislation will consist of a model principal OHS act, supported by model regulations and model codes of practice that can be readily adopted in each jurisdiction (Australian Government 2008). The Federal Government and the business community claim that harmonising OHS laws in this way will cut red tape, boost business efficiency and provide greater certainty for all workplace parties (Association of Consulting Engineers Australia 2008, p. 4; Australian Government 2008). All OHS statutes across Australia have common objectives based upon duty of care principles to regulate for the prevention of workplace injury and illness (The Australian Department of Employment and Workplace Relations 2005). This approach is also internationally consistent with the International Labour Organization (ILO) Occupational Health and Safety Convention 155, to which Australia is a signatory nation (WorkCover New South Wales 2006). SAFE DESIGN IN THE BUILDING AND CONSTRUCTION INDUSTRY One of the fundamental principles in OHS is to eliminate hazards and risks, or where elimination is not reasonably practicable, to minimise them. The earlier the intervention, the more effective it is to eliminate or reduce the hazards and risks (Australian Government 2008, p. 67). In 1995, the Industry Commission into Work, Health and Safety claimed that " the key to controlling injury and disease at work is to be found in the design and control of the workplace and the activities conducted within it. Research indicates that construction workers (nationally and internationally) are exposed to many risks that are in part dictated by the design of a particular project. These risks can be eliminated or reduced by taking OHS considerations into account during the design stage of a project (Durham, Culvenor & Rozen 2002, pp ). WHY FOCUS ON SAFE DESIGN IN THE BUILDING AND CONSTRUCTION INDUSTRY? In recent times safe design in the construction industry has become a major topic of OHS discussion in Australia. Australian and international research has identified design as a contributing factor in a significant number of deaths and injuries that occur in the construction industry (Trethewy 2003, pp ). Research conducted by the National Occupational Health and Safety Commission (NOHSC) between July 1st 2000 and June 30th 2002 concluded that 18 fatalities in the construction industry were design related incidents. These fatalities represented 44% of all work related deaths in the construction industry (Australian Safety and Compensation Council 2005, p. 14). In 1993 a major European study (conducted over a period of approximately 5 years and involving 12 member states) concluded that 63% of construction fatalities and 80% of structural damage or 2

3 defects could be a result of design and planning decisions (Commission of European Communities 1993). In the United Kingdom recent research indicates that approximately 64% of injuries and 36% of deaths in the building and construction industry could be traced back to a design factor and lack of planning in this key area of the project (Churcher & Alwani-Starr 1996; Sommerville 2003). Two reports on the Irish construction industry over a 10-year period indicate that at least 25% of fatal accidents are directly attributable to the pre-construction stage of projects (Heffernan 2004, pp ). Recent research from 16 case studies across 14 EU member states has concluded that better planning at the design phase could save 300 lives and prevent 500,000 accidents each year in the European construction sector (European Agency for Health and Safety at Work) Trethewy argues that a greater focus on design and OHS in the Australian building and construction industry may result in an annual saving of between US$500m and US$1b to the economy (without taking into consideration indirect cost factors, including lost productivity and the cost of investigating accidents) (Trethewy 2003, pp ). Design changes are more efficient and cheaper to implement at the planning phase and can prevent hazards from entering a workplace that may cause harm or injury (National Occupational Health and Safety Commission). Figure 1 illustrates the cost-effectiveness of early intervention on safety problems in the building and construction industry. It is based on the original model by Wakeling and Knight-Jones, Site Safety by Design (Breslin 2007, pp ). $10,000,000. to clear up after an accident $100,000. to make a field change $100. to change a drawing $10. to change a philosophy (Preferred option) Figure 1: Site safety by design (after Wakeling & Knight-Jones 2000). REGULATING SAFE DESIGN IN THE AUSTRALIAN CONSTRUCTION INDUSTRY Traditionally, in Australia, the designers of plant had a duty of care (under the OHS Legislation in all jurisdictions) to design plant that was without risk as far as is reasonably practicable. This statutory duty did not apply to the designers of buildings and structures. In recent times the OHS legislation in the Australian Capital Territory (ACT), the Northern Territory, Queensland, South Australia (SA), Tasmania, Victoria and Western Australia (WA), has been 3

4 amended to ensure that designers of buildings and structures now have statutory obligations to design buildings and structures that are safe and without risks. However the designers statutory obligations vary across the jurisdictions. One of the key objects of the Victorian Occupational Health and Safety Act is to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work. However, designers only have a duty of care under Section 28(1) of the Victorian Occupational Health and Safety Act 2004 to design a building or structure, or part thereof that is to be used as a workplace, without risks to the health and safety of those people using it (WorkSafe Victoria 2005, p. 1). The duty does not require designers to consider buildability and the safety of the construction workers. It has been argued that Section 28 should be amended to achieve harmonisation with other jurisdictions that have designer duties covering buildability (Stensholt 2007 pp ; Victorian Government 2008). The Queensland Workplace Health and Safety Act 1995, Sections 30(a)(b)(c)(31), is similar to the United Kingdom legislative framework, the Construction (Design and Management) Regulations. The Queensland legislation requires the client to consult with the designer, the project manager and the principal contractor about how the construction work can be undertaken in a way that prevents or minimises all risks to health and safety (Department of Industrial Relations 2006). In New South Wales there is no obligation for the designer of buildings and structures. A recent review of the OHS Act in New South Wales concluded that WorkCover does not recommend amending the OHS Act to address the issue of design safety as it would be introducing a new class of duty holder and would significantly extend the scope of the Act (WorkCover New South Wales 2006, p. 46). This is one example of the inconsistent approach by the state and territory governments and the regulators. It can certainly be argued that the risks associated with the construction of a building or structure are the same in Queensland and New South Wales and that the legislation in New South Wales should have been amended to ensure that designers and other stakeholders have a duty of care to eliminate or minimise the risks to construction workers. The Western Australia OHS legislation takes a holistic approach to safety in design. The Western Australia legislation places a statutory obligation on designers in relation to safety during construction, maintenance, repair and service of a building or structure, whereas the Victorian legislation places responsibilities on designers only if the completed building or structure is to be used as a workplace. Western Australia is the only jurisdiction in Australia that has a three-tier approach to the designers statutory duty. The duties for designers under Section 23(3a) of the Western Australia Occupational Health and Safety Act 1984 are supported by the requirements under the Occupational Health and Safety Regulations 1996 S The Western Australia Code of Practice for Safe Design of Buildings and Structures provides practical guidance on how designers can comply with the specific duties under the legislation. This model provides certainty and clarity to the designers in Western Australia. On August 19 th 2008 the Australian Capital Territory Government introduced the new Work Safety Bill 2008 to replace the old OHS Act. The Work Safety Bill now expands the safety duties to all parties including building designers. The statutory duty for the designers of buildings and structures is an ever evolving process. The governments and regulators in various Australian jurisdictions have different approaches to the issue of statutory obligations for the designers of buildings and structures under their OHS legislation. 4

5 There are also obligations for designers for safe design under: The National Construction Work Standard ; The Building Code of Australia (BCA) ; and Relevant Australian Standards. THE NATIONAL STANDARD FOR CONSTRUCTION WORK Designers also have an obligation under The National Construction Work Standard to consider the hazards and risks associated with the design of a building or structure and to consult with the client. This includes recording and providing information in a written report to the client. The Standard is not legally enforceable unless the state and territory governments adopt it under state and territory law. For example, the Northern Territory has adopted the Standard into their regulations under their principal OHS act. The safe design provisions in the National Standard are based on a European directive that has been implemented in all European Union member states. The scope of the designer s responsibilities in the National Construction Work Standard is consistent with their general duties under the OHS acts (in the relevant jurisdictions where designers have a duty of care) but the National Standard provides more specific guidance as to their application in the construction environment (National Occupational Health and Safety Commission 2005, p. 11). THE BUILDING CODE OF AUSTRALIA (BCA) The Building Code of Australia was first released in The BCA is produced and maintained by the Australian Building Codes Board (ABCB) on behalf of the Australian Government and state and territory governments. The BCA has been given the status of building regulations by all states and territories (Department of Consumer and Employment Protection, 2008). The BCA is the principal document for regulating the design profession involved in the design of buildings and structures (Australian Safety and Compensation Council 2006, [b] p. 8). Designers are required under the BCA to test for loads, capacities and speeds. Although the BCA is comprehensive in regulating some aspects of design such as choice of material and construction methods, its scope is considerably less than that of the OHS statutes and regulations. One of the main aims of the BCA is to ensure that people (the end users), including emergency services, are protected from death, disease and injury during the life cycle of the building. However, the BCA is not concerned with the health and safety of people during the construction process (Bluff 2003, pp. 4 7). The BCA provides a nationally consistent approach to building regulation in all jurisdictions. The National Occupational Health and Safety Commission claims that there is no reason to doubt that this approach could not be applied to consistent OHS regulation in the construction industry (National Occupational Health and Safety Commission 2005, p. 9). DEFINITION OF A DESIGNER WITHIN THE CONSTRUCTION INDUSTRY Currently there is no definition of a designer in the OHS Acts of Queensland, South Australia, Tasmania, Victoria and Western Australia. The Association of Consulting Engineers Australia (ACEA) claims that the inconsistency of key definitions in each jurisdiction causes uncertainty and misunderstanding for duty holders. Furthermore, the ACEA claim that it is vitally important that the definition of designer be contained within the National Model OHS Act, as certainty is a fundamental requirement in OHS legislation and regulation. Designers need to be in a position to adequately understand their obligations under the Model OHS Act (Association of Consulting Engineers Australia 2008, pp.10 11). REGULATING SAFE DESIGN INTERNATIONALLY In the United Kingdom, the Construction (Design and Management) (CDM) Regulations took effect in 1995 and were introduced as a response to the European Community s Temporary or Mobile Construction Sites Directive. The design and planning elements of the Construction Site Directive 5

6 were adopted into the CDM Regulations. The CDM 1994 regulations are a prescriptive approach to regulating safe design in the construction industry (Cole 2003, pp ). Evidence from the UK suggests that since the introduction of the CDM Regulations in 1995 there has been a downward trend in the number of fatalities in the construction industry despite some unexpected fluctuations. Since the introduction of the Construction Site Directive in 1992 few of the European States claim a reduction in incident frequency rates - except the Netherlands and Finland. Both of these countries report a decline in incidence frequency rates and fatalities. However, it is unclear if the reduction was due to factors in the construction industry, as manufacturing and transport experienced a similar reduction. The overall impact of the Construction Site Directive on the construction industry is ambiguous (Bluff 2003, p. 16). A recent report released by the Health and Safety Executive in the United Kingdom has revealed that designers in the construction industry are becoming increasingly aware of their responsibilities to design out health and safety risks. Overall, 70% of designers were assessed as having an adequate or good knowledge of their legal duties under the CDM Regulations and other legislation compared to 33% in 2003 (Franklin 2005, p. 6). NATIONAL HARMONISATION: THE DESIGNERS DUTY OF CARE Currently each jurisdiction in Australia tends to reap ideas off each other's efforts in revising and refining its OHS legislation, which probably means that overall, the country is progressing OHS standards at a very good rate towards national harmonisation. An example of this approach is the adoption of the requirements (or principles) of the National Standard for Construction Work which was declared by NOHSC, in accordance with Section 38 of the National Occupational Health and Safety Commission Act 1985 (Cth), on 27 th April 2005 (National Occupational Health and Safety Commission 2005, p. 1). Since the inception of the National Standard for Construction Work the OHS legislation in a number of jurisdictions has been amended to ensure that designers of buildings and structures now have statutory obligations to design buildings and structures that are safe and without risks to the occupants and workers. The designers duty of care for designing buildings and structures in Queensland, Northern Territory, South Australia and Western Australia is very similar, but in many respects the Western Australia legislation exceeds the legislative requirements in other jurisdictions. New South Wales and Victoria have had the opportunities to have designer duties cover buildability and also achieve harmonisation with other jurisdictions, but have failed to do so in both cases. This is one example of the inconsistent approach by the state and territory governments and the regulators. The first report on the National Review into Model OHS Laws contains a number of recommendations that would provide consistency and clarity to stakeholders in relation to safe design across all jurisdictions. This includes recommendations 29 to 33 which outline specific duties of care for designers to ensure that the health and safety of those contributing to the use of, otherwise dealing with or affected by the use of the plant, structures or substances is not put at risk from the particular activity including building and construction. The duties of care that are recommended to cover the different life cycle phases are more extensive than in current legislation (Bluff 2009, p. 7). Furthermore, the report recommends that the duties of care should apply to any reasonably foreseeable activity undertaken for the purpose for which the plant, structure or substance was intended to be used (e.g. construction, installation, use, maintenance or repair) (Australian Government 2008, pp ). 6

7 The Business Council of Australia claims that businesses need and want a practical, commonsense approach to fixing OHS problems (Business Council of Australia 2007, p. 23). However, the case for national harmonisation of OHS legislation is perhaps not a black-and-white issue. The advantages of full and complete OHS harmonisation throughout Australia would include certainty and efficiency for those companies and suppliers operating nationally. This would improve consistency and, in turn, the designers (and all other industry stakeholders ) knowledge and increase their confidence in dealing with safety in design issues as they move around the nation from project-to-project. One of the greatest drawbacks to national harmonisation of OHS laws is that, once established, it may stagnate as change would require the agreement and cooperation of all states and territories. A consensus based approach to developing such legislation could create a lag between the legislation and the best practice, and model OHS legislation could rapidly become an inferior and/or obsolete standard of OHS. Either Commonwealth bureaucracy and/or a need for simultaneous consensus from eight separate state & territory regimes could also inevitably stifle responsiveness to innovation and change. As a nation it is imperative that any economic benefits of the harmonisation process do not diminish the importance of OHS legislation and improve health and safety outcomes for all Australians (Business Council of Australia 2007, p. 7). CONCLUSIONS National and international research indicates that design is implicated as a causation factor in fatalities, diseases and injuries to construction workers, maintenance workers, end users and the public. The key to controlling injury and disease at work is to eliminate or minimise the risks or hazards during the design phase of a building or structure. The earlier intervention, the more effective it is to eliminate or reduce the hazards and risks. The design profession s statutory duty for designing a building and structure varies under the current OHS frameworks across all Australian jurisdictions and one Australian association claims that the varying OHS frameworks reduce the capability and the competence of stakeholders to understand their OHS obligations across the jurisdictions. Despite the commonality in the OHS legislation across jurisdictions, there remain differences as to the form, detail and substantive matters in relation to OHS legislation, particularly in regard to duty holders and statutory duties. Currently there is no consistent legal definition of duty of care in the OHS legislation implemented across the various jurisdictions. Most OHS Acts do not clarify what reasonably practicable means in relation to ensuring OHS. Furthermore, there is no definition of a designer in the OHS Acts in Queensland, South Australia, Tasmania, Victoria and Western Australia. The inconsistency of key definitions in each jurisdiction causes uncertainty and misunderstanding for duty holders that work across the different jurisdictions. The definition of duty of care, reasonably practicable and a designer should be contained within the National Model OHS Act to provide clarity and certainty to all stakeholders which is a fundamental requirement in OHS legislation and regulation. Designers need to be in a position to adequately understand and comply with their obligations under the Model OHS Act. In the United Kingdom there is one national set of Construction Design Management (CDM) Regulations that provides consistency and clarity to those designers and organisations operating in various parts of the country. Research suggests that since the introduction of the CDM Regulations in 1995 there has been a downward trend in the number of fatalities in the construction industry despite some unexpected fluctuations. 7

8 Although national harmonisation may reduce bureaucracy, cut the amount of paperwork, provide consistency and clarity to designers and all other stakeholders in Australia, the main focus must be and should always be on improving OHS performance and reducing fatalities, injuries and diseases in the workplace. DISCLAIMER The opinions expressed in this paper are the author s own. REFERENCES Association of Consulting Engineers Australia, (2008), National review into model cccupational health and safety laws: ACEA Issues paper submission, pp , viewed at Australian Department of Employment and Workplace Relations, (2005), Australia s decent work action plan background plan, viewed at Australian Government, (2008), National review into model OHS laws, terms of reference, viewed at Australian Government, (2008), National review into model OHS laws, first report to WRMC, p. 67; pp , viewed at Australian Safety and Compensation Council, (2005), Design issues in work-related serious injuries, Commonwealth of Australia, Canberra, p. 14. Australian Safety and Compensation Council, (2006), Guidance on principles of safe design, Commonwealth of Australia, Canberra, p. 8. Bellamy, A., National review of model OHS laws, viewed at Bluff, L., (2003), Regulating safe design and planning of construction works. A review of strategies for regulating OHS in the design and planning of buildings, structures and other construction projects, Working paper 19, National Research Centre for Occupational Health and Safety Regulations, Australian National University, Canberra, pp. 4-7, viewed at Bluff, L., (2009), The national review into model OHS laws: A paper examining the specified classes of duty Holders; reasonably practicable and risk management; and access to OHS advice, Working paper 67, National Research Centre for Occupational Health and Safety Regulations, Australian National University, Canberra, p.7, viewed at Breslin, P., (2007), Improving OHS standards in the building and construction industry through safe design. Journal of Occupational Health and Safety, 23(1), Brown, K. and Furneaux, C., (2007), Harmonising construction regulation in Australia: Potentials and problems, viewed at Business Council of Australia, (2007), Making work safe: Australia deserves the right approach: A business call for safety, p. 4; p. 7; p. 23, viewed at Churcher, D.W. and Alwani-Starr, G.M., (1996 ), Incorporating construction health and safety into the design process, Implementation of safety and health on construction sites, in Proceedings of the first international conference of CIB working commission W99, Lisbon, Portugal, 4-4 September, Rotterdam, Balkema, pp Commission of European Communities, (1993), Safety and health in the construction sector, Office for Official Publications of the European Communities, Luxembourg. Department of Consumer and Employment Protection (2008), Code of practice safe design of buildings and structures, viewed at Department of Employment and Workplace Relations, (2006). Guideline on the principles of safe design, Commonwealth of Australia, Canberra, p. 5, viewed at Department of Industrial Relations, (2006), New legislation boosts safety on construction sites, viewed at 8

9 Durham, B., Culvenor, J. and Rozen, P., (2002), Workplace health and safety in the building and construction industry, pp , viewed at European Agency for Health and Safety at Work, (2004), Better planning could save 300 lives and avoid up to 500,000 accidents in Europe s construction sector each year, European Agency for Health and Safety at Work, Bilbao, Spain, viewed at Franklin, P., (2005), Designer initiative 2005 report, p. 6, viewed at Heffernan, J., (2004), Irish health and safety authority recommends reform of Irish construction regulations to address concerns regarding the role of clients and designers, in Magazine of the European Union, 7, Office for Official Publications of European Communities, Luxembourg, pp National Occupational Health and Safety Commission, (2005), Regulation impact statement, National standard for construction work, p. 9, viewed at National Occupational Health and Safety Commission, (2005), National standard for construction work [NOHSC: 1016 (2005)], p. 1; p. 6; p. 11. National Occupational Health and Safety Commission, Why should you consider a safe design approach?, NOHSC, Canberra. Sommerville, P., (2003), Design: Make or break, in National Safety Council of Australia Magazine, viewed at Stensholt, B., (2007), A report on the Occupational Health and Safety Act 2004, pp , viewed at Trethewy, R., (2003), Enhanced safety, health and environment outcomes through improved design. Journal of Engineering, Design and Technology, Southern African Built Environment Research Center (SABERC), 1(2), Victorian Government, Response to: A report on the Occupational Health and Safety Act 2004 Administrative review, viewed at Workcover New South Wales, (2001), Priority issues for construction reform, Safely building, New South Wales report, p. 33, viewed at WorkCover New South Wales, (2006), Report on the review of Occupational Health and Safety Act 2000, p. 28; p. 46, viewed at WorkSafe Victoria, (2005), Designing safer buildings and structures, 1 st edition, Victorian Workcover Authority, Victoria, p.1. 9

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