061-Master Builders Association

061 Master Builders Association

Master Builders Australia

Submission to Safe Work Australia

on

Work Health and Safety Harmonisation – fourth stage codes of practice

23 August 2012

Submission to Safe Work Australia – Fourth Stage Codes

© Master Builders Australia Limited 2012.

Master Builders Australia Limited
ABN 68 137 130 182
Level 1, 16 Bentham Street (PO Box 7170), YARRALUMLA ACT 2600
T: +61 2 6202 8888, F: +61 2 6202 8877, ,

This submission is copyright and all rights are reserved. No part of it may be reproduced, stored, transmitted or otherwise distributed, in any form or by any means without the prior written permission of the copyright holder. Images on the cover are winners of 2011 Master Builders National Excellence in Building and Construction Awards.

Submission to Safe Work Australia – Fourth Stage Codes

C O N T E N T S

1Introduction

2Purpose of Submission

3Background

4Code of Practice: Industrial Lift Trucks

5Code of Practice: Cranes

6Conclusion

Introduction

This submission is made by Master Builders Australia Ltd (Master Builders).

Master Builders is Australia’s peak building and construction industry association, federated on a national basis in 1890. Master Builders’ members are the nine Master Builder State and Territory associations.

Over the past 120 years the association has grown to represent over 33,000 businesses nationwide. Master Builders is the only industry body that represents all three building and construction sectors: residential, commercial and engineering.

Purpose of Submission

This submission provides comments on the codes of practiceon cranes and industrial lift trucks released for public comment on 8 June 2012.

Background

Master Builders supports the harmonisation of work health and safety laws inclusive of codes of practice provided that the process results in a regulatory framework which is fair and reasonable for the construction industry, and in particular for the vast majority of businesses in the construction industry which do not operate in more than one jurisdiction. It is with this test in mind that Master Builders provides substantial comment on the draft codes of practice.

Master Builders has been actively involved in the process to develop the harmonised legislation, regulations and codes of practice. Through this involvement Master Builders appreciates the enormous effort that has been required to reach a stage where there is a model Act, model Regulations and codes of practice.

While there has been some consultation with industry throughout the development of the fourth stage codes, Master Builders wishes to express its disappointment at the extremely tight time frames for the provision of feedback prior to the public release of the codes. This has significantly limited the opportunity for industry feedback on these codes.

Code of Practice: Industrial Lift Trucks

General comments

Master Builders notes that there is currently guidance material on industrial lift trucks at an individual jurisdiction level but no codes of practice. Master Builders therefore considers that a Regulation Impact Statement (RIS) should be prepared for the Code of Practice: Industrial Lift Trucksnoting that it is not within the scope of the Decision RIS developed for the Model WHS Regulations and Codes of Practice, which only covers the first stage codes of practice.

Specific comments

Page 13 – The Code states that safety features that should be incorporated into the design of an industrial lift truck include operative protective devices. This guidance does not appear to be entirely consistent with the WHS Regulations. Regulation 215(2) provides that a person with management or control of powered mobile plant at a workplace must ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices is provided, maintained and used. Master Builders therefore recommends that the Code be redrafted to provide clearer guidance about what is required to meet this regulation. Master Builders questions the guidance in the first dot point in the paragraph commencing “safety features” regarding retro-fitting as the WHS Act does not have retrospective effect. Also, this guidance uses “where possible” which is not the qualifier that applies to Regulation 215(2) – the qualifier should be “so far as is reasonably practicable”.

Page 13 – the drafting of the dot point “the need for the industrial lift truck to be flame and static proof if it is intended the industrial lift truck …..” appears to indicate that this is a requirement specified in the Model Regulations. Master Builders is not aware of such a requirement. In every submission on draft codes of practice Master Builders has raised concerns about the use of highly directive language such as “the need for”, “need to be” and “are to be” where there are no legislative requirements which mandate a particular course of action. Use of such language in the absence of a legislative requirement is inappropriate and these aspects of the Code should be redrafted.

Page 14 – there are further examples in section 3.2 of highly directive language where no legislative obligation applies. For example, “Paint bollards and guard rails with black and yellow diagonal stripes”. This should be amended so it is clear that this is recommended, not mandatory. Also, the dot points in this section use the terms “where practicable” and “where possible”. The qualifier used in the WHS Act and WHS Regulations is “so far as is reasonably practicable” and this should be used in the Code. Also, the reference to “regular engine tunning” should be replaced with “regular engine tuning”.

Page 15 –the box at the top of the page should make it clear that the obligation to provide information that is readily understandable is subject to the qualifier “so far as is reasonably practicable”.

Page 16 – the second last paragraph indicates that a traffic management plan can help manage risks and communicate information regarding control measures. In the construction industry the term traffic management plan generally applies to plans developed to meet the requirements of road traffic authorities for work on or near public roads. Master Builders therefore recommends the use of an alternative term such as vehicle movement plan.

Page 17 - In section 4.1, the first paragraph states that the operator should familiarise themselves with the controls before operating an industrial lift truck. This should only apply the first time that the operator uses a particular industrial lift truck, not every time that the operator uses the same industrial lift truck.

Page 18 – in the paragraph commencing “any loss of lateral stability”, the third dot point should be separated into two dot points, with the new dot point commencing with “carry loads”.

Page 21 – section 5.1 uses must in a number of locations (“the load chart must be revised”; “operators must be able to calculate”). These do not appear to be legislative requirements and “must” should therefore be replaced with “should”.

Page 23 – the last dot point before figure 2 suggests that the forklift operator should perform an initial trial lift without a person inside to ensure the cage has a clear path and will not make contact with overhead power lines or other overhead obstructions. Master Builders does not consider that this provides for a safe work method – even if the workbox is empty the lift should not be conducted in a manner that is contrary to Regulation 166, the proposed Code of Practice: Working in the Vicinity of Overhead and Underground ElectricalLinesor the regulatory requirements regarding approach distances, as this has the potential to place the operator at risk.

Page 24 – the section on tandem lifting states that it is only permitted when it is impracticable to lift the load with a single item of plant and there is no other reasonably practicable alternative. This does not accurately reflect Regulation 219(7). That Regulation is as follows:

The person must ensure, so far as is reasonably practicable, that no load is lifted simultaneously by more than 1 item of plant unless the method of lifting ensures that the load placed on each item of plant does not exceed the design capacity of the plant.

The Code should properly reflect the WHS regulations and not seek to impose additional requirements.

Page 26 – the first two paragraphs duplicate information in the Code of Practice: Working in the Vicinity of Overhead and Underground ElectricalLinesand could bedeleted.

Page 26 – section 5.9 indicates that use of certain personal protective equipment is mandatory. This does not appear to be entirely consistent with the WHS Regulations which require duty holders to adopt higher level controls, so far as is reasonably practicable.

Code of Practice: Cranes

Issues on which feedback sought

Master Builders’ policy is that the WHS legislation and Codes of Practice should not include references to Australian Standards for the reasons outlined on page 2 of the Code. Master Builders therefore does not consider that Australian Standards should be referenced in the Code.

Master Builders considers that the Code is too long and that it would be useful to separate it into two Codes – one covering crane operation and one covering inspection, testing and maintenance. This appears to be a more logical basis for separating the material than having separate Codes on specific types of cranes which Master Builders considers will result in considerable duplication of material.

General comments

Master Builders notes that the draft Code uses “must” in many places throughout the document. The use of “must” is intended to denote a legislative requirement. In many cases Master Builders has been unable to establish the legislative requirement that corresponds with the use of “must”. This submission identifies a number of cases where “must” has been used inappropriately. A thorough check of the Code needs to be undertaken to ensure that “must” is only used where there is a legislative requirement. In accordance with the drafting practice for other Codes, all legislative requirements should appear in a separate text box and include the relevant Act or regulation reference.

Master Builders also notes that there is frequent use of directive language (for example “are to be”) which appears to indicate that a particular course of action is mandatory when this is not the case. Master Builders has raised this as a concern in each of its submissions on draft Codes of Practice. It is disappointing that this inappropriate drafting still continues. The Code should be thoroughly reviewed to remove this language and replaced with “must” “should” or “may” as appropriate.

Specific comments

Master Builders recommends that all references to dogger/s should be changed to dogman/dogmen as these terms are more commonly used in the industry.

Page 7

The last sentence states that workers who operate certain types of cranes must have a relevant high risk work licence. Master Builders considers that this sentence would be more accurate if this was changed to “workers who operate certain types of cranes must have the corresponding high risk work licence”.

Page 9

In the dot point regarding cranes overturning in section 2.1, delete the dot point “poor ground conditions such as unstable ground” and replace it with “poor ground conditions such as unstable ground or inconsistent compaction”. Also in this section, insert an additional dot point “failure to use appropriate outrigger pads”.

Under the structural failure heading, the second line should read “… rope could suffer structural failure without warning.”

Page 10

In the paragraph regarding eliminating the hazard at the bottom of the page, the example of undertaking work at ground level is a poor one. Assembling components at ground level would in most cases increase the need to use a crane to move the assembled components into place due to their size and weight. This example should be deleted from the Code.

Page 12

The paragraph commencing “when deciding” states that high risk plant may need more frequent review. The term “high risk plant” is given a specific meaning by regulation 10.1(b) of the NSW WHS Regulations for the purposes of Schedule 1 of the WHS Act (which extends the application of the WHS Act to certain high risk plant that is not situated, operated or used at a workplace) and is as follows:

(a) boilerscategorised as hazard level A, B or C according to criteria in section 2.1 of AS:4343:2005 (Pressure equipment—Hazard levels),

(b) pressure vessels categorised as hazard level A, B or C according to the criteria in section 2.1 of AS:4343:2005 (Pressure equipment—Hazard levels), except:

(i) LP Gas fuel vessels for automotive use, and

(ii) serially produced vessels,

(c) lifts, including escalators and moving walkways,

(d) amusement devices covered by section 2.1 of AS:3533.1:2009 (Amusement rides and devices—Design and construction), except devices specified in subclause (1C),

(e) gas cylinders.

As this definition does not include cranes, Master Builders recommends that the term “high risk plant” not be used in the Code.

Page 13

In the paragraph commencing “effective planning”, the second dot point which begins with “directly involved in the lifting operation, such as crane the operator,” should be redrafted to relocate the word ‘the’ before the word ‘crane’.

In the paragraph commencing “some of the issues”, add an additional dot point “considering the weather conditions” as weather conditions can affect the safe operation of cranes.

Page 17

In the first paragraph under the text box in section 3.5 delete the dot point “the method for inspection and maintenance of cranes” and insert in its place “the method for, and the type and frequency of, inspection and maintenance of cranes”.

Page 18

The second paragraph indicates that familiarisation training may involve a representative from the crane supplier or manufacturer and if so the representative should be endorsed by the crane supplier or manufacturer. Master Builders does not consider that it is always reasonably practicable for familiarisation training to be provided by such a representative and recommends that the Code provide for other options, including familiarisation training being provided by a competent person.

Page 19

The drafting of the first paragraph, which discusses installing and commissioning cranes, appears to indicate that all of the dot points listed are mandatory. As they are not legislative requirements, the words “It also involves ensuring that” should be changed to “Installing and commissioning cranes should include”. Master Builders does not support references to Australian Standards in Codes of Practice. The last dot point in this paragraph should therefore be redrafted to delete the reference to AS/NZS 3000: Electrical Installations.

The section on falling objects makes no mention of the requirements imposed by Regulations 54 and 55 which require a PCBU to manage risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person. Regulation 54 imposes specific obligations if it is not possible to eliminate this risk. The section should be redrafted sothat it properly reflects those regulations.

Section 3.7 states that adequate public safety must be maintained in areas adjoining the workplace. As well as being subjective, the term “adequate” is inconsistent with the duty of care in respect of other persons at the workplace (section 19(2) of the WHS Act). That duty is also subject to the qualifier “so far as is reasonably practicable”. The section should be redrafted to rectify these matters. Also, the final version of the Code of Practice: Construction Work does not provide guidance on securing a construction workplace. The last sentence of section 3.7 should therefore be deleted.

Pages 19-20

Section 3.8 does not properly distinguish between aspects of the emergency procedures that are mandated by regulation 43 and recommended procedures specific to emergencies in relation to cranes. For example, the first paragraph on page 20 does not make it clear that effective communication between the person authorised to coordinate the emergency response and all persons at the workplace is in fact mandated by Regulation 43(1)(v). Similarly, the last paragraph on page 20 does not make it clear that emergency plans must contain evacuation procedures. This section should be redrafted so that the legislative requirements are clear.

Page 21

Section 4.1 uses “must” in a number of locations. Two of these (regarding accessibility of the charts and conditions that must be complied with on load charts) do not appear to be legislative requirements. In accordance with Code drafting conventions, “must” should be replaced with “should”.

In section 4.2, the second sentence should include the qualifier “so far as is reasonably practicable”.

Page 22

The second paragraph states that a crane operator may only supervise a trainee in performing the work of a dogman if the crane operator also holds a dogman’s licence. The requirement to comply with Regulation 82 needs to be made clearer – i.e. that the only circumstances in which a trainee can undertake dogging work is if the work is carried out in the course of training towards certification and is under the supervision of a person who is licensed to carry out the high risk work.

The section on driver’s licence requirements needs to make it clear that holding a drivers’ licence is not a requirement of either the WHS Act or the WHS Regulations.

Page 23

In the first paragraph under the text box, the Code indicates that the siting of the crane should consider hazards such as the vicinity of airports and aircraft flight paths for ‘high’ cranes. The Code does not provide any guidance as to what is considered to be a ‘high’ crane. Given that the Code recommends that where cranes are set up near flight paths the local airport operator should be contacted, the use of the term ‘high’cranes is not required and should be deleted.

In the second paragraph after the grey box, the second line should read “and other plant” rather than “and other plan”.

Pages 23-24

Section 4.4 uses “must” in a number of paragraphs. Some of these relate to WHS regulatory requirements but others do not appear to (e.g. the second paragraph on page 23 regarding the size and design of tower crane bases; the second paragraph on page 24 regarding contacting the local airport operator and complying with the traffic control procedures of the road authority). This is not to say that these procedures are not important but rather that the Code should be consistent with the drafting conventions of all of the other codes, including citing of the relevant provision of the WHS Act or WHS Regulations where “must” is used. The section should be reviewed so that “must” is only used where it reflects a WHS legislative requirement.