Ensure - Continued

Weekly WHS Article 7th February 2022

This article is a continuation of last week’s article, Ensure – One of the Most Important Words in WHS. It provides more examples from the WHS Act where the word ‘ensure’ is used and then goes on to consider and provide examples where ‘ensure’ is used in the WHS Regulation.


The word ‘ensure’ occurs 38 times in the WHS Act and occurs over 300 times in the WHS Regulation (we stopped counting). The WHS Regulation covers all industries and activities and that is why the ‘ensure’ occurrence is so high. (If you do a word search for ‘ensure’ in a PDF of the WHS Regulation you could identify what parts of the Regulation have an ‘ensure’ that applies to your workplace.)


More Examples of ‘ensure’ in the WHS Act


Example 3

Section 19(3) of the WHS Act (a) to (g)


“A person conducting a business or undertaking must ensure, so far as is reasonably practicable” to;

  • provide and maintain their work environment without risks to health and safety, and

  • provide and maintain safe plant and structures, and

  • provide and maintain safe systems of work, and

  • provide for the safe use, handling, and storage of plant, structures and substances, and

  • provide adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

  • provide any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

  • monitor that the health of workers and the conditions at the workplace monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

Example 4

Section 27 (5) (c), (d), and (e) of the WHS Act says that an Officer of a person conducting a business or undertaking has to take reasonable steps to ensure that the person conducting the business or undertaking;


“c)…. has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and”


“(d).... has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and”


“(e),,..has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act,”


Examples of ‘ensure’ in the WHS Regulation

Example 1

Clause 69 - Communication and safety monitoring


“A person conducting a business or undertaking must ensure that a worker does not enter a confined space to carry out work unless the person provides a system of work that includes—


(a) continuous communication with the worker from outside the space, and


(b) monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out”.


Example 2

Clause 37 - Maintenance of control measures


“A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains—


(a) fit for purpose, and (b) suitable for the nature and duration of the work, and

(c) installed, set up and used correctly.”


Ensure (guaranteeing, securing, or making certain)

As covered in a legal action before the NSW Industrial Commission (ref 1), the word 'ensure' is used in the ordinary meaning of the word, guaranteeing, securing or making certain.


In a separate court case regarding ensuring the safety of others the Judge stated that, the “obligation cast on relevant persons to ‘ensure’ the safety of others is indeed strict and necessarily of a high standard” (ref 2).



Ensure – Continued
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References

1. Carrington Slipways Pty Ltd v Callaghan (1985)11 IR 467 at 469

2. McMillan, Brittan & Kell Pty Ltd v WorkCover Authority of NSW (1999) 89IR 464 at 480




7th February 2022

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