Obligations for Engineers under WHS/OHS legislation

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss the obligations for engineers under the WHS legislation (OHS Act in Victoria) and understanding the importance of their role if things go wrong.

They discuss the fact that Work Health and Safety (WHS) legislation is the overarching legislation in Australia that must guide engineering design and decision-making, and their surprise at this lack of awareness and how many still (wrongly) use Standards as a design basis.

They emphasise that engineers are central to upholding WHS requirements, as they are the designers responsible when things go wrong and that the engineering design process needs to be a top-down, holistic approach that considers all relevant stakeholders and objectives, not a bottom-up siloed approach. 

Find out more about Richard and Gaye’s consulting work at https://www.r2a.com.au.  

Transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the obligations for engineers under the WHS legislation, which is the OHS Act in Victoria, and understanding the importance of their role.

(00:21):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favorite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

Gaye Francis (00:40):

Good morning, Richard, and welcome to another podcast session.

Richard Robinson (00:43):

Good morning, Gaye.

Gaye Francis (00:44):

We just had a discussion about what we're actually going to talk about today and we thought we've done some interesting courses and you've been involved in some discussion groups the last couple of weeks and there's been some really interesting topics and I guess themes and observations that we've made during these. So what we thought we'd talk today about is just some of those things and how they're all sort of being integrated together, or not integrated together as the case may be.

(01:11):

So the first one was we gave a chartered assessors course last week for Engineering Education Australia. So these are the people that go around and assess members to become chartered status. And there's obviously a requirement in that that they need to know about risk. We were very kindly given the praise that they were just given a master class in risk management and in risk over a three hour period. So that was rather nice. And then Richard, you gave a discussion? Were you involved in a discussion group or a round table?

Richard Robinson (01:43):

Well, no, there was this fellow doing a PhD and he was trying to work out what the integration and what the practical integration between security and fire was. I mean, the classic case is the fire doors in a nightclub being locked to keep people out, but when the fire occurs, people can't get out, and that sort of thing. And it was an interesting discussion because the fellow doing PhD was Richard Kathagh and he had me as a fire engineer, long-term member of Society of Fire Protection Engineers, and a fellow called Damien Rogers who was a security guy, ex-military fellow. So from (R2A's) point of view, very much like Bob Browning. And one of the sort of diagrams he came up with that he had, he said, because we sort of observed that both the security and the fire protection was sort of increasingly going into silos, which is something that we thought has always been an error and which we never did and have always said they were an integrated thing.

(02:33):

And one of the little diagrams that Richard was testing on us was three circles. One was sort of security, one was fire and then one was design. And both Damien and I both instantly felt, because at the end we were sort of having a discussion, we, Damien and I were looking saying, well, we pretty seriously agree about all this, don't we? And then what were basically saying, well, what you need to do was push security and the fire and the design circles together and where they overlapped, you had to write in WHS. And so far as I could tell, the fact that we were quite so vehement about it, I mean I think the matter had been raised previously because Richard had been talking to other people trying to work out what was going on. But the fact that Damian and I said the overarching legislation is WHS. And if you're on the fire business, you need to know about WHS. And if you're on the security business, you need to know about WHS. And we both agreed that if things had gone into silos and people weren't coming top down, they were coming bottom up within their silo. Now if you want to have confusion in the design process, come bottom up within your silos and you will achieve a magnificent confusion.

Gaye Francis (03:33):

That sort of position was almost supported in the chartered assessors course that we did last week when they sort of said, there's actually not many candidates that understand that the WHS legislation is the overarching legislation for engineers.

Richard Robinson (03:47):

Well, yes, because it hammers design. It's got all these duties and designers have their own little category, their own level of responsibility. Now they've got a design so it's fit for purpose and without risk and you've got to test it to confirm that it's good and you've got to provide the right information to the user. And that is just focused exclusively at designers. And what do engineers do? They design!

Gaye Francis (04:09):

They do, and we have covered this in a number of our other podcasts, so we won't go on too much about it today, but I thought that was really interesting that they didn't think that they had this responsibility even if you didn't have the title of a designer, engineering design...

Richard Robinson (04:23):

Correct.

Gaye Francis (04:24):

You still had the obligations under the WHS legislation and that was the overarching legislation that should be pushing everything. And the feedback from the assessors was there was a lack of understanding amongst engineers and young engineers going for chartered status, that that was the case.

Richard Robinson (04:41):

But it also flowed on too, because we were just talking about it before the session. I mean we keep doing this expert witness things and what we observe is the only expert witness there are engineers. I have not seen, it's very rare. Sometimes you've got a town planner, but even then when it comes to technical stuff, it's the engineers doing it.

Gaye Francis (04:57):

I was going to say, town planners typically don't give technical advice.

Richard Robinson (05:03):

Advice.

Gaye Francis (05:05):

That's correct. They're mainly giving planning legislation or a planning guideline advice. And it's all about a compliance audit rather than dealing with the laws of nature.

Richard Robinson (05:16):

Correct.

Gaye Francis (05:17):

And so the engineers have to understand that they're central and important to this. And I dunno that we've been making ourselves that important.

Richard Robinson (05:24):

Well, it's like that, I mean, well before your time, but Ralph Nader's little thing unsafe at any speed with the Ford Pinter, remember when people crashed in to the back of that, the petrol tank blew up and burnt the occupants of the car. And Ford had made the decision based on a cost benefit analysis that it wasn't worth doing anything about because there were so few accidents and killing these people in these fireballs was not seen to be particularly relevant. Well, the courts pretty quickly, the American courts pretty quickly disabuse them of that theory! And if you just think for a moment about the Chris Maxwell QCs review of the 2004 OHS Act in Victoria, which kinda kicked all this WHS legislation off in Australia, he had two things. He said, to the extent you have control, you have the duty and the engineers during design sure have the control. And the other thing was everybody's entitled to an equal level of protection. You can't go around saying and say, just because it's cost effective, we've going to leave these people at risk. You just can't do it. And Nader went on to say, he said, it's all very fine to sort of blame the engineers for letting this happen. But he said, you can't get rid of the engineers. They are central to this process. They're unavoidable. The engineers have to be there.

Gaye Francis (06:25):

They have to be involved in the fix. So yes, they've been part of the problem to start with, but they're there as part of the fix as well.

Richard Robinson (06:31):

Well, except they probably listened to the finance people rather than actually sticking to their guns. And as we've commented before, the only way out of that hole for the engineers is to get the lawyers involved.

Gaye Francis (06:41):

And put that up. So I think there's been a couple of observations there. There's been the siloing of things that you sort of experienced in the security and fire.

Richard Robinson (06:52):

It's a bit more than that though. I remember Frank Stocks, our New Zealand associate, has just been calling up talking about the expert witness he's doing with regards to somebody who got killed on the foreshore in Auckland Harbor. Now for years he's been giving advice to the council. Councils want to have an open foreshore, so you get the view and you don't have barriers that are unattractive. On the other hand, having an open foreshore means that people can fall over the edge. Now there's a balance here and Frank's observation, which is what came out of that discussion with the balance between the two for that PhD candidate, the only way to solve it so far as he could tell was if you want to make a place safe, but you also want to keep all the amenity, you can't just do it in isolation. You've got to get the parties in the room who actually talk through the issues. Because it's not that you're going to do necessarily one or the other, it's that it's on the balance you've got to get it right. And the only way to do it with all the domain experts working together.

Gaye Francis (07:46):

But that means you're looking at a solution that looks at all of those issues together.

Richard Robinson (07:51):

In a holistic top down way.

Gaye Francis (07:53):

Correct. So you're saying based on the balance of significance of the risk versus the effort required to reduce it, can we achieve safe outcomes? Can we achieve city amenity? Can we achieve safety?

Richard Robinson (08:05):

Well, you might recall this is the advice we're just giving to the Hobart. Well, for Tasport at the Hobart City Council, gave the same reason.

Gaye Francis (08:11):

Yes. They have an open foreshore as well. And so they have to get together with the council and all of the stakeholders involved in that and have a look at what you can do when there's a working port in the center of a town basically.

Richard Robinson (08:24):

And they want to keep it an open point because otherwise the Sydney to Hobart (Yacht Race) is not quite as exciting as everybody can have when you all just cluster around the docks.

Gaye Francis (08:33):

That's true. They do put additional measures in place when they've got those sort of things there.

Richard Robinson (08:37):

Yeah, I know. But that's the point. It's appropriate to the circumstances.

Gaye Francis (08:43):

So I guess what we're saying is the engineering design process has almost gone to a bottom up process.

Richard Robinson (08:50):

Correct.

Gaye Francis (08:51):

Instead of a top down process. And we've always said, you've got to get those high level objectives in mind first, what you can do and then come top down.

Richard Robinson (09:01):

It's a design options analysis. What are we trying to achieve? And in the circumstance, what are the options that are available to us and in the circumstances, which is the best and most appropriate, the diligent decision-making process. I don't fully understand why that's been missed, particularly when you talk about chartered engineer status because the whole point of chartered engineer status, I mean they sort of supplanted the old corporate membership, but the idea was you demonstrated capability and you were just formally advising somebody that you'd got there.

Gaye Francis (09:31):

You almost got the skillset available.

Richard Robinson (09:34):

Yeah, that's correct.

Gaye Francis (09:36):

I think when I was coming through the ranks and you're going for chartered status, they were sort of saying 10 years plus experience. And I think now they're sort of aiming at that three to eight years experience. So there's a lot of experience that can be gained in that time. And I guess it depends on what sort of jobs you do and all of that sort of thing. But I don't think the value of engineers is being recognised.

Richard Robinson (10:05):

Well, I think in many ways, I mean, we look at some of the post-grad courses that we've been delivering, and you're sort of look at some of the candidates you've got. I mean, the ones that are brilliant are absolutely brilliant, and they can do the job as well as we can. But then we've observed this, and I sort of did my back in last week and I was talking to the physio and he was talking about the students that he has to deal with. He said, look, the brilliant ones are still brilliant. That hasn't changed. So I said, one of the problems we've got now though is with the system, and that's the way we've set it up, is that when a candidate's not so good, the difficulty you have in failing them, the amount of paperwork required to fail somebody now is so much more than the paperwork of saying somebody is brilliant. It's easy to let them through. And well, as we do as part-time lecturers, you don't want to fail anybody.

Gaye Francis (10:49):

No. So you give 'em as much help as you can, but some of them just don't get over the line. And then it's sort of like, oh, they've sort of achieved what we need to. We'll give them a bare pass.

Richard Robinson (10:59):

Correct. Because it's easier to do that and you rely on the system to fix it up a bit later. Now, whether that's actually achieved or not, we're not in a position to comment, but unless somebody just fails to submit or something like that, the capacity to fail people has become very difficult.

Gaye Francis (11:14):

Well, that's with everything isn't now. I've got two young kids and telling them that they're not good at something is not the right thing to do anymore. <laughs> And there's some things that they're not so good at.

(11:27):

How do we wrap this up from there? I guess it was just an interesting conversation. I think there was some common themes throughout those two things that we did last week that things are being done in silos. The importance of the WHS legislation and how it hangs everything together, combines everything together, I don't think was well understood.

Richard Robinson (11:51):

It's not understood. Actually, there's not even an awareness that it could be so.

Gaye Francis (11:57):

That's true, probably, that there's not even an awareness around it. So I don't know how you elevate it. I mean, this is what we do for a living.

Richard Robinson (12:05):

It's like I gave the paper to that fire engineer conference back in middle of the last decade, the Society of Fire Protection when it was in Sydney. I explained the fire engineering design brief and if the fire engineers in Australia was inconsistent with the WHS legislation. I think only two or three people got it. So as far as I know, the old process is still going and that has all sorts of consequences for designers.

Gaye Francis (12:26):

I think one of the interesting comments, and this a little bit on the side, there was an ex regulator at one of the courses last week.

Richard Robinson (12:33):

There was a lawyer there too. Keep going.

Gaye Francis (12:35):

He didn't put his hand up until the end. But the regulator was saying that it does call up standards and things like that sometimes.

Richard Robinson (12:43):

You mean the WHS regulator?

Gaye Francis (12:44):

Yes. But there's a requirement under the WHS legislation that is not well understood, but people are still complying with Standards and things like that to get their license to trade.

Richard Robinson (12:57):

Correct.

Gaye Francis (12:57):

So there's almost two processes that are competing.

Richard Robinson (13:01):

Well, people are still using Standards as a design basis. Which for an engineer absolutely makes no sense. I mean, I was obviously making past remarks how Engineers Australia is encouraging engineers to give their IP free to Standards Australia, which makes no sense whatsoever. None of the American societies do it - if you want some advice, you're going to buy it.

Gaye Francis (13:27):

So I guess engineers have to understand their obligations under the WHS legislation and it's essential to all the work that engineers do.

Richard Robinson (13:36):

Correct.

Gaye Francis (13:37):

It has to be done top down.

Richard Robinson (13:38):

Correct.

Gaye Francis (13:39):

And we have to not do it in silos. It has to be an integrated process and approach to it that considers all of the things that need to be considered.

Richard Robinson (13:48):

The engineers are absolutely essential to this. They cannot abdicate, they can't walk away. They are the designers when it all goes wrong. And they will be the ones in court.

Gaye Francis (13:58):

I guess engineers understanding how important they are is the first thing. And then yeah, and understanding the requirements on WHS legislation. So thanks for joining us today, and we hope to see you next time.

Richard Robinson (14:11):

Thanks.