Work and Health Safety Law

Question

Lift and Shift is a designer and manufacturer of cranes and lifts. It is headquartered in Utrecht, The Netherlands.

ReachLiftX44

Lift and Shift has recently designed a portable twin-mast tower work platform unit called the ReachLiftX44 (the ReachLift). The ReachLift contains a horizontal platform that can reach up to 23 metres. Below is a schematic diagram of the ReachLift.

The platform on the ReachLift is raised and lowered by two motors which operate simultaneously. The motors operate by ‘climbing’ on each of the towers of the unit. The controls of the unit are located on the platform.

During testing, Lift and Shift discovered that when platform is raised above 20 metres, the entire unit becomes unstable and has the potential to topple over. This is because the unit becomes too ‘top heavy’. The designers acknowledge that this was a fault in the design of the base. However, the risk can be mitigated significantly by ensuring that the Tower Motor Base platform does not exceed 20 metres in height. Accordingly, each of the units include the following sign near the operator’s controls:

The instruction manual for the unit also provides:

To avoid the ReachLift unit becoming unstable and falling, do not elevate the platform above 20 metres in height.

Helpfully, the controls contain an instrument which enables the operator of the ReachLift to determine the height of the platform during operation.

Australian Operations

Lift and Shift has recently established an Australian subsidiary, Lift and Shift (Australia) Pty Limited (Lift and Shift AU), which will be importing ReachLift into Australia and supplying it to construction companies. At this stage, supplies will be limited to Sydney.

All testing and quality checking of each ReachLift unit is conducted at Lift and Shift’s manufacturing facility in Utrecht.

Advice

Kim Jennings is the general counsel of Lift and Shift AU and is seeking advice regarding Lift and Shift AU’s obligations under work health and safety legislation. In particular, she has asked you to advise Lift and Shift AU on the following matters:

1. Will the signage and information in the instruction manual satisfy Lift and Shift AU’s duty under sections 24 and 25 of the Work Health and Safety Act 2011 (NSW) (the WHS Act)?

2. If Lift and Shift AU satisfies its obligations under Part 5.1 of the Work Health and Safety Regulation 2017 (NSW) (the WHS Regulation), will that mean that it also satisfies its duties under sections 24 and 25 of the WHS Act?

3. An Australian Standard provides that mast tower climbing platforms should be able to reach their maximum height without toppling over. Does it matter that the ReachLift does not comply with the Standard?

4. Does Lift and Shift AU need to register the ReachLift under the WHS Regulation? Draft a letter of advice to Kim providing your advice in relation to her questions. Kim has a board meeting on Saturday, 7 May 2022. The board is meeting to discuss what steps it should take in relation to the ReachLift. Accordingly, Kim needs your written advice by no later than 10pm the night before as she needs to consider it ahead of the meeting. Your letter will form part of the board papers.

LETTER OF ADVICE

Greetings!

I hope everything is well. Firstly, I want to thank Lift and Shift AU and Ms Kim Jennings for trusting and reaching out to me regarding the clarifications and advice on four specific matters relating to work, health, and safety legislation prevalent in Utrecht, Australia. As mentioned to me before, Lift and Shift AU is a designer and manufacturer of cranes and lifts who has designed a portable twin-mast tower work platform unit called the ReachLiftX44 (ReachLift), whose horizontal platform can reach up to 23 metres. But, raising the platform above 20 metres makes the whole unit unstable, which creates the potential to topple over. Lift and Shift AU has mentioned this defect in both the precautionary signs attached to the units and the instruction manual of those units. Here, I would like to shortly provide my conclusion on the matters enquired and subsequently explain the reasoning behind:

Matter 1: Lift and Shift AU satisfies Sections 24 and 25 of the Work Health and Safety Act 2011.

Matter 2: Lift and Shift AU satisfies its obligations under Part 5.1 of the Work Health and Safety Regulation 2017 (NSW) as well as its duties under sections 24 and 25 of the WHS Act 2011.

Matter 3: The ReachLift does not need to conform to the said Australian Standard.

Matter 4: Registration of ReachLift is mandatory under the WHS Regulation.

In the upcoming sections, I have elaborated on the respective explanations.

Satisfying Sections 24 and 25 of the Work Health and Safety Act 2011 (NSW)

Section 24 and 25 of the Work Health and Safety Act, 2011 deal with the duties of importers and suppliers of plants, substances or structures and, therefore, cover our case. Here, broadly three duties are enlisted on the supplier and importer of the structures:

Duty to ensure safety and health in the workplace: Here, the importer or the supplier needs to ensure that all the activities related to that structure can be safely and reasonably practised without putting the workers' health and safety at risk. Now, Lift and Shift AU has detected the defect and identified its root cause. But because that defect hinders the safe and reasonable usage of the structure to a limited extent, this duty is partly compromised. But because workers can still use the platform to a large extent, Lift and Shift AU not wholly fulfilling this duty will not hinder its establishment in Australia.
Duty to test: This duty obliges the supplier and importer to carry out the needed tests and examinations to identify the defect of the structure. As Lift and Shift AU has successfully pointed out the root cause behind the defect, it has passed this threshold without any hindrance.
Duty to provide information: This duty emphasizes providing necessary and relevant information to the workers responsible for using the said structure regarding the result of the tests or examinations conducted on the structure to make them aware of any defect if found. Because Lift and Shift AU has been rational by putting up the necessary precautionary information in pertinent and practical places, this duty is also fulfilled. But to be in a safe space, Lift and Shift AU can organize small workshops for the workers from time to time and ensure they are being adequately communicated to and ensure that the workers understand the risk attached to operating the ReachLift.

As Lift and Shift AU substantially fulfilled all the duties, it does not breach Section 24 and 25 of the Work Health and Safety Act 2011.

Satisfying obligations under Part 5.1 of the Work Health and Safety Regulation 2017 (NSW) and its relation to Section 24 and 25 of the Work Health and Safety Act 2011

We focus on the reasoning behind the enactment of the Work Health and Safety Regulation 2017, and we will see that it came into effect by replacing the Work Health and Safety Act 2011, where the latter ceased to exist on 1^st September 2017. This change was done to bring more uniformity among all the regulations and Standards prevalent in Australia. Hence, most of the provisions present in the 2011 Act were included in the 2017 Regulations. The amended parts in the 2017 Regulations do not fall under the scope of the case at hand.

Part 5.1 of the 2017 Regulations attach duties to persons conducting a Business or Undertaking that install, construct, or commission structures. It also deals with some General duties mentioned in Part 3.1 of the 2017 Regulation, where the latter deals with the management of risks. In Part 3.1, the duty holder has to eliminate as much risk as possible or minimize them as reasonably practicable. Since Lift and Shift AU has adhered to this duty by giving out necessary precautions, it fulfils Part 3.1 and Part 5.1 of the Work Health and Safety Regulations 2017, as Part 3.1 is based on Sections 24 and 25 of the Work Health and Safety Act 2011.

Violating Australian Standards

Australian and other international standards ensure industry safety, reliability, and performance. Hence, primarily specific regulators and professional industry associations develop them through the specifications of goods, services, and systems.

According to the general rule, standards are not binding as they are not laws. But if regulations incorporate them or make them mandatory, the said Standards become imperative, and if breached, it would be a violation of the law.

When Work Health and Safety Regulations 2017 have required conformance to only a few Australian Standards, which does not include the Standard in question, i.e., the Standard that makes it mandatory for mast tower climbing platforms to reach their maximum height without toppling over.

Hence, the ReachLift not conforming to the said Standard would not be violative of the WHS Regulations.

Registration under WHS Regulations

Schedule 5 of the 2017 Regulation lists down items of Plants requiring registration. These items are hoists with a platform movement exceeding 2.4 meters designed to lift people. Hence, this Schedule makes it mandatory for ReachLift to be registered under the WHS Regulations of 2017.

I hope the information mentioned above was helpful at the board meeting scheduled for Saturday. Please feel free to call my office at [phone number] if you require any further assistance.

Very truly yours,