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Section 28 of the Occupational Health and Safety Act 2004 (the Act) which states: 'A person who designs a building or structure or part of a building or structure who knows, or ought reasonably to know, that the building or structure or the part of the building or structure is to be used as a workplace must ensure, so far as is reasonably practicable, that it is designed to be safe and without risks to the health of persons using it as a workplace for a purpose for which it was designed.'

What does the safe design duty for designers mean?
It means that people who design buildings or structures that are to be used as workplaces have a duty under the Occupational Health and Safety Act 2004 to design them to be safe for the people who will work in them. This includes designing parts of buildings or structures.

The duty of persons who design a building or structure or part thereof is limited by factors such as: their knowledge of the intended use of the building or structure; what is reasonably practicable for them to do; that the building or structure is designed to be safe for persons using it as a workplace for a purpose for which it was designed.

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What does 'reasonably practicable' mean?
Section 20 of the Act sets out what is meant by 'so far as is reasonably practicable'. It includes five matters which designers must take into account at the design stage when deciding what is reasonably practicable.

These matters require consideration of:

  • the likelihood of a person being exposed to harm;
  • the potential seriousness of that harm;
  • what is known, or ought to be known, about the risk;
  • how to eliminate the risk; and
  • the availability, suitability and the cost of eliminating or reducing the risk.

Designers are required to inform themselves of current and relevant information on risks relevant to the use of the building or structure as a workplace and any ways to control those risks including those that may be suitable to apply at the design stage. This information should be applied during the design process to eliminate or reduce risks.

The facts and circumstances in each individual case will be relevant, including the particular design project and related matters such as: scope of the design brief, which may be set out in contractual arrangements between the parties; other parties undertaking parts of the design work; the intended uses of the building or structure being designed; and the design process in each particular case.

Matters which are within the control of a designer or what can be reasonably expected of a designer should be considered in assessing what is reasonably practicable in the particular circumstances.

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What is a building?
There are a number of definitions of buildings, ranging from dictionary definitions to specific industry standards such as the Glossary of Building Terms.

Most of the definitions include elements such as: walls and a roof, affixed or intended to be affixed to the land, designed or intended for shelter or enclosure of persons, animals, chattels, or movable property.

In the majority of cases there will be no doubt that an object is a building or structure.

If you are uncertain if an object you are designing is a building or structure, please contact the WorkSafe Safe Design Project Team to discuss it.

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What is a structure?
A structure is a construction, not necessarily roofed, which performs a function or functions that requires rigidity. Examples of structures include: bridges, dams, silos, tunnels, pits and utilities or telecommunications towers. Structures covered by Section 28 must be intended to be used as a workplace. Structures that require maintenance and cleaning are workplaces.

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Does the safe design duty apply to all buildings and structures?
The duty applies to buildings or structures that are to be used as a workplace.

Generally, private residential dwellings which are not intended as workplaces are not included. Roads and footpaths are not included in Section 28.

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Does Section 28 apply to a residential dwelling with a home office?
Private residential dwellings which are not intended as workplaces do not fall within the scope of the Section 28 duty. However, residential-care buildings for persons who require care because of age or disability, dwellings where part of the building is intended to be used as a workplace and buildings designed for mixed use including commercial and/or retail, mixed with residential do fall within the scope of the Section 28 duty.

If part of the dwelling is intended to be used as a workplace, the Section 28 duty applies to the workplace component. For example the part of a dwelling that was designed to be an office.

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How is the new safe design duty different from the building or structure safe design duty in the Occupational Health and Safety Act 1985?
There was no specific duty on persons who designed buildings or structures in the 1985 OHS Act. However, duties for other duty holders under sections of the 1985 Act required that workplaces be safe and also that health and safety be considered when workplace changes were made.

The new duty provides a more focussed approach and, in keeping with the philosophy of prevention, places emphasises on controlling eliminating risks at the source (during the design stage).

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When does the duty start?
On 1 July 2006.

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I started to design the building I am working on before 1 July 2006; does the Section 28 duty apply to this building?
The duty does not apply to your design. However, if you redesign a design which was commenced before 1 July 2006 to the extent that it becomes a new design, the duty may apply.

One factor which may determine whether a redesign becomes a new design is if the design is changed to the extent that the risks to people using the building or structure as a workplace are substantially changed.

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Who is a designer for the purposes of Section 28?
The section 28 duty applies to any person who designs a building or structure or part of a building or structure that is to be used as a workplace. This includes all people who design buildings or structures in the course of undertaking their profession, trade or business.

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I am not in charge of the building design, do I have a duty?

If you know, or ought reasonably to know, that the building or part of the building or structure is to be used as a workplace and you are making decisions about the design by contributing to the technical work of designing, you have a duty.

This duty would apply to the design decisions you make. Your decisions should consider the known workplace hazards and measures to control those hazards to ensure that the building is safe and without risks to the health of persons using it as a workplace.

The Designing Safer Buildings and Structures guide provides more information on who has a duty under Section 28.

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I am a client who has commissioned a building design; do I have occupational health and safety (OHS) duties?
People who design buildings or structures in the course of undertaking their profession, trade or business will be the duty holders for Section 28. However, the extent of this duty may be affected by the relationship with their clients and the fact that these clients may also have duties under other sections of the OHS Act.

Some of the possible relationships are covered in Section 6 of the Designing Safer Buildings and Structures guide.

Good communication between client and designer is important. It is good practice for designers to inform their clients of any risks in client design requirements that may affect the health and safety of people who will be using the building or structure as a workplace. As good practice, designers would also recommend appropriate alternatives, including any design modifications which would eliminate or reduce risks arising from the design.

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Do I have to engage an occupational health and safety consultant to advise me on safe design?
Designers do not have to engage occupational health and safety consultants. Any decision to engage consultants would be made by individual designers and would depend on their own state of knowledge of OHS, their access to information and advice, the range and complexity of hazards and risks associated with the intended use of the building or structure and the characteristics of the design of the buildings or structures required by the client.

Considerable knowledge is freely available on workplace hazards and risks and ways of eliminating or reducing those hazards or risks, some of this knowledge can be applied during design. There are persons available who have OHS knowledge and can be consulted; and these include OHS consultants with the appropriate experience.

WorkSafe's Designing Safer Buildings and Structures guide and Supplementary Guidance for Designers provides more information on how to get OHS information.

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Who should I talk with to learn about health and safety issues?
Section 9 of WorkSafe's Designing Safer Buildings and Structures guide provides information on a process and types of persons to consult to obtain information on OHS issues.

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Do employee health and safety representatives have a role in the Section 28 duty?
Health and safety representatives do not have a role under Section 28. However, it will be useful for a designer to consult with health and safety representatives when clients already have control of similar workplaces to those intended for the building or structure being designed.

This also applies where employees will be affected by the changes to the existing work to be carried out in the new building or structure. Designers will be greatly assisted in the preliminary hazard analysis process and in developing design solutions if clients involve their employees and any health and safety representatives in discussions or workshops conducted during that process.

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How do I find out what safety matters should be taken into account when designing a building or structure?
The safety matters to be considered will depend on the characteristics of the workplaces for which the building or structure being designed will be used. Matters to be considered will be determined by the state of knowledge of the identified workplace hazards and risks and on ways of controlling the risks.

For particular types of work, or hazards and risks, there are occupational health and safety Regulations, and Compliance Codes. There is also advisory material available including codes of practice, guides and alerts that advise on hazards and risks and in some cases also on design issues relevant to those hazards and risks. These can be obtained through the WorkSafe Victoria website and other occupational health and safety websites.

Section 9 of WorkSafe's Designing Safer Buildings and Structures guide and its supplementary guidance provides more information on a process and types of persons who can provide information on OHS issues.

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Do I have to take all possible uses of the building into account?
The Section 28 design duty is limited to what is 'reasonably practicable' and also by 'for a purpose for which it was designed'. When designing a building or structure, consideration should be given to the range of work activities associated with the intended use of the building or structure as a workplace.

For example if you are designing an office building, you would consider the full range of workplace activities reasonably expected to be carried out in an office building. Maintenance, repair, service and cleaning activities should also be considered. These functions are considered because it is foreseeable that the use of a building or structure as a workplace will require these activities. These activities would be integral to use of the building or structure as a workplace.

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What sort of approach should I take to considering safety in design?
There is no mandatory approach to meeting the duty in Section 28.

WorkSafe, in the Designing Safer Buildings and Structures guide and its supplementary guidance, recommends that a Preliminary Hazard Analysis and a Systematic Risk management process should be carried out.

It is important to make sure that the approach is robust enough to consider and make decisions on all the hazards, risks and health and safety issues relevant to the type of industry and work falling within the intended use of the building or structure as a workplace.

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What do I do about risks that I can't design out of the building or structure?
The design risk control measures for the identified workplace risks should be evaluated against what is reasonably practicable as defined in Section 20 of the Act.

If there are risks which cannot be eliminated or the they must be rereduced so far as is reasonably practicable. Designers should make a record of these 'residual' risks. The information about these remaining risks to health and safety should be provided to the client, who should provide them to end users of the building or structure.

Employers who will use the workplaces in the completed building or structure can use the residual risk information to develop their risk controls and systems of work, in consultation with their employees and employee health and safety representatives.

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What does 'what is known, or ought to be known' mean?
This means what is currently known about a specific topic, with reference to section 28 this means what is known or ought to be known about the hazards and risks associated with the workplaces in the building or structure to be designed, and about the ways of eliminating those hazards and risks. This will obviously change over time, especially as superior knowledge is gained about particular hazards.

People responsible for health and safety are required to inform themselves of current and relevant information and how to eliminate it;

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If I am designing a building that I know will become a workplace, do I have to consider issues like sick building syndrome?
Section 20 of the Act covers the status of knowledge about OHS. Since knowledge exists about sick building syndrome and its causes, this and other known health issues must be considered as part of the section 28 duty.

This applies also to issues like forklift trucks and pedestrian separation, selection of building maintenance units or any other OHS issue about which there is an existing state of knowledge.

WorkSafe's Designing Safer Buildings and Structures guide and its supplementary guidance provides more information on how to access information on many known hazards.

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How do I know whether solutions found in Standards adequately control the risks identified in the design or the interaction of the design and the intended use of the building or structure?
Health and safety performance can be assessed by determining if the requirements of Section 20 of the Act are achieved by the design solution. Section 20 requires elimination of risks to health and safety and if this cannot be achieved then reduction of risks. Both these requirements are limited to 'so far as is reasonably practicable' – the meaning of this phrase is explained in the Act and also in the Designing Safer Buildings and Structures guide.

This question is covered in more detail in Designing Safer Buildings and Structures guide and its supplementary guidance.

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What is a designer's liability if a client insists on a design feature that will create risks or fail to control risks to persons likely to use a building or structure as a workplace?

Section 28 places a duty of care on designers to design a safe building for the known workplace uses. These uses would be defined by the intentions stated in the brief or instructions provided by the client. The designer should bring to the attention of the client the risks or hazards which would be created or increased by the client's requirements and alternative design options which would eliminate or reduce the hazards or risks. The obligation of the designer is to ensure, so far as is reasonably practicable, that the building or structure is designed to be safe.

Clients who insisted on a design choice, knowing it to be inherently unsafe could be found to be in breach of their duty under other Sections of the Act and may also be negligent under common law. A designer who completes a design including such a design option may be liable for a contravention of section 28 of the Act.

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How can I find out more about the safe design of buildings and structures?

Some suggestions to obtain further information are:

WorkSafe has established a special email address for designers to seek answers to specific questions. The Safe Design Project Team can be contacted by email at: design_safe_buildings@worksafe.vic.gov.au

To obtain further guidance material on the Act and particular design issues, view forms & publications, or contact the advisory service.

Practice Notes prepared by Industry associations and Professional Institutes are available from:

Building Design Professions (BDP)

Royal Australian Institute of Architects (RAIA)

Building Designers Association of Victoria (BDAV)