Ensure - One of the Most Important Words in WHS

Weekly WHS Article 3rd February 2022

You may not be surprised to know that the word “ensure” is an important and

significant word in WHS law. It is used 38 times in the WHS Act and has a major role

in making safe and healthy workplaces.


What does the word ‘ensure’ mean in a legal context?

‘Ensure’ is not defined in the WHS Act because it is recognised that it is used in the

ordinary meaning of the word. 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).


Examples of the word ‘ensure’ in the WHS Act

Example 1

Section17 of the WHS Act says that;


“A duty imposed on a person to ensure health and safety requires the person—

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to

minimise those risks so far as is reasonably practicable.”


Example 2

‘Ensure’ is often teamed up in the WHS Act with ‘must’, and the result is ‘must

ensure’.


Section 19 of the WHS Act says that a person conducting a business or undertaking

must ensure so far as is reasonably practicable the health and safety of workers.


So, the actions that the employer takes to satisfy section 19 must ensure

(guarantee, secure and make certain) so far as is reasonably practicable, the

health and safety of the workers. Any actions that are not strict and of high

standards could result in an accident that injures one or more workers.


The examples above cover just 2 of the 38 times that the word ‘ensure’ is used in the

WHS Act. How about the other 36 times? Some of them may not be applicable to

your workplace but most of them probably do apply.


You would probably feel very comfortable if you knew for certain that your workplace

does comply with every section of the WHS Act that does apply to your workplace.


‘Ensure’ – One of the Most Important Words in WHS
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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




3rd February 2022

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