FAQ's
SAFETY IN DESIGN
Why do I have to prepare a Safe Design Report ?
As part of meeting your obligations under the WHS Act and Regulations you’re required to prepare a Safe Design Report and provide it to your client if they’re a Person Conducting a Business or Undertaking (PCBU).
The report’s goal isto prevent future injuries or deaths by identifying, assessing and eliminating hazards or potential risks at the design stage. This is a legal obligation under regulation 295 of the WHS Regulation.
Under section 22 of the WHS Act, you must also provide anyone issued with a copy of the design with information explaining how the structure has been designed to minimise health and safety risks during construction, maintenance, use and demolition.
This information can be incorporated into the Safe Design Report required under the WHS Regulation.
Why does the WHS legislation focus on designers ?
National and international research indicates that design is implicated as a major causation factor in fatalities, diseases and injuries to construction workers, maintenance workers, end users and the public (Breslin, 2009). Designers are considered ‘upstream duty holders’ and as such their decisions can greatly affect the health and safety of people who use their designs downstream in the lifecycle of these structures.
Early consideration of safety at the design stage is one of the most effective ways of eliminating or reducing hazards and risks.
Who receives my Safe Design Report ?
Regulation 295 of the WHS Regulation requires designers to provide a Safe Design Report to the Person Conducting a Business or Undertaking (PCBU) who commissions the work (e.g. the client).
In addition, section 22(4) of the WHS Act requires Safe Design information to be provided to anyone who receives a copy of the design.
Under this section, it’s advised that you issue your Safe Design Report with your plans to relevant parties, such as the client, certifier or council, and builder.
When should I issue Safe Design information for my design ?
Under the WHS Act, the Safe Design information must to be issued to anybody who is issued with a copy of the design. At a minimum, we would recommend issuing this information at the development application (DA) stage, again at the construction documentation (CD) stage, at the tender stage, and with the final design. The designer must also provide this information on request.
Does Safe Design legislation apply to residential projects ?
Yes. The WHS legislation applies to residential projects to the extent that at some stages in their lifecycle residences are workplaces (e.g. such as during construction, maintenance or repair by workers, or demolition at end of life).
If the residence contains a workplace such as an office or workshop, or the owner employs staff that will be working at the residence, additional considerations would apply relating to the use of the residence as a workplace for that purpose.
Other examples of residential projects that are a workplace during their use include aged care or managed apartments.
Do I include ALL potential hazards in my SID Report ?
Only hazards within the designer’s control that aren’t adequately covered by a recognised standard (e.g. Australian Standard, Code of Practice, NCC or other guideline) need to be included in the risk assessment.
Safe Design Australia focuses on three categories of risk:
Unique or unusual risks: Those arising from construction methods, materials, site conditions, special user requirements or unusual building uses.
Conflicting or inadequate standards: Where existing standards don’t adequately address the risk or requirements conflict.
Significant residual risks: Risks that remain after design controls have been considered.
Any residual risks from the design stage that need to be managed by those responsible for the structure throughout its lifecycle should also be documented.
For more detail, see Section 2: Risk Management in our free to download Safe Design eBook.
For practical guidance, see our Safe Design Reports Made Simple online course.
Do I have to provide Safety in Design information for a structure I designed in the past ?
Yes. There is a specific requirement under s22(5) of the WHS Act to provide current relevant information, on request, on how the designer has designed the structure to be without risk to health and safety to persons carrying out any activity relating to the construction, use, operation, maintenance, manufacture, demolition or disposal of that structure.
Do I have to prepare my own Safe Design Reports or can I engage a consultant ?
Designers can seek the advice of experts to assist them in discharging their duties and to prepare their Safe Design reports and risk assessments. It’s important to ensure you are receiving good advice: ensure the WHS consultant you engage is experienced in the types of structures being assessed and holds professional indemnity insurance.
Important to note: designers cannot transfer their duties to another person and will remain the duty holder. They must design the structure to be without risk to health and safety as far as is reasonably practicable.
Do Safety in Design requirements depend on project size or budget ?
No. The duties under s22 of the WHS Act apply to the design of all structures that could be reasonably be expected to be used as a workplace at any stage in their lifecycle, regardless of size or budget.
Does the designer’s information need to be provided in writing?
Yes. There are specific circumstances where a written safety report is a requirement (WHS Regulation reg.295). Under the WHS Act, designers must provide information on Safe Design through the lifecycle as a workplace to anyone who is issued with the design in order to give effect to it.
The Code of Practice: Safe Design of Structures states that this information can be incorporated into the report required under the regulation.
Additional information can be provided through other means e.g. meetings, notes on plans or a work health and safety file. This information will then be clearly available to people using that structure as, or at, a workplace during later phases in its lifecycle.
Do designer duties extend to project supervision or contract administration during construction ?
If the designer is still under contract and can influence the design during construction, their duties extend to this stage. They must also provide information on request about the design’s safety to those constructing the structure during this period.
Legal Questions
Does there need to be a direct link to negligence causing injury on the part of the designer in order to be prosecuted ?
For a prosecution under the WHS Act, negligence is not necessary. The test is whether the designer did everything reasonably practicable to ensure the structure is safe and without risks to health and safety.
Under the WHS Act, there doesn’t need to be an incident for a breach of WHS legislation – it’s enough that there is just a risk to health and safety, although in practice, most prosecutions arise after an incident.
The penalty isn’t determined by the harm caused, but rather the risk of harm, and the penalty is based on the harm that could have occurred, e.g. a faulty design results in person breaking an arm, or if a design flaw could have caused the person’s death.
What happens if a designer has followed a systematic process and just misses something?
For the WHS Act, it depends on whether it was something the designer should have foreseen. A blanket systematic process, while a good start, will usually not be enough – the designer should always look at each design individually and try to think of all the foreseeable risks for that design. Consultation is also essential in identifying risks.
If a client overrides your safer material specification (e.g. replaces non-slip tiles with slippery porcelain tiles), are you still responsible? Have you fulfilled your legal duties by advising them of the risks?
Both designers and clients have WHS responsibilities. A client overriding safety advice doesn’t automatically remove the designer’s obligation to eliminate or minimise risks so far as reasonably practicable.
If a client insists on a less safe option, you should explain the risks, recommend safer alternatives and document:
- Your recommendation and reasons.
- The risks associated with the client’s preferred option.
- The advice provided and the client’s decision.
Documenting the disagreement alone doesn’t discharge your WHS duties. Further action may be required depending on the circumstances.
Client vs Designer – who’s responsible for design safety if the client controls the budget, and designer has done all they can to offer safer choices ?
Responsibility isn’t determined solely by who controls the budget or whether the designer has tried to persuade the client. Both clients and designers have duties, and both – as well as others – can be prosecuted over the same issue.
A duty to ensure health and safety requires a person to:
- Eliminate risks so far as is reasonably practicable.
- If elimination isn’t reasonably practicable, minimise risks so far as is reasonably practicable (s17).
What’s reasonably practicable depends on what can reasonably be done at the time, taking into account:
- The likelihood of the hazard or risk occurring
- The degree of harm it could cause
- What the person knows, or ought reasonably to know, about the hazard or risk and ways to eliminate or minimise it
- The availability and suitability of those measures
- After assessing the risk and available measures, their cost – including whether it’s grossly disproportionate to the risk (s18)
Designers should consider all these factors when making recommendations. Both the client and designer also have consultation duties. The client may have additional duties under the legislation, potentially including the same duties as the designer.
Who is responsible if a designer works for a company?
If the designer is a company, it would be reasonable to expect the company would be prosecuted under the WHS Act. However, officers such as managing directors, designers, and individuals can also be prosecuted in addition to the company. Also note: individual workers have duties under the WHS Act and can also be prosecuted.
How long do designers have to keep information ?
It’s advisable for designers to keep Safe Design information for the life of a structure. While there’s a time limit on WHS prosecutions being commenced, other legal claims may or may not be subject to a statute of limitations.
