"Ensure" - One of the Most Important Words in WHS

Weekly WHS Article 3rd February 2022

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

Section17

“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.”

Section 19 says that a person conducting a business or undertaking (business, organisation, corporation)

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

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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