Further WorkSafe Technical Errors – application of reg 13.41

We respond to WKS-17 (attached) published by WorkSafe on its website during August 2025.  It is a strange technical update on its face – concluding on flawed grounds that regulation 16.41 does not apply to transportable containers, yet recommending that similar controls ought to be adopted nonetheless.  On WorkSafe’s view of the law, a PCBU would be required to comply with, for example, separation distance requirements for 500 litres of class 8 in 20-litre containers stored inside a warehouse, but would have no such requirements were a 1000-litre transportable container to hold the same substance.  WorkSafe then goes on to advocate compliance with AS 3780 which includes separation distances.  Thus, we have both flawed legal analysis and some confusion created for PCBUs – what exactly are the consequences of not adopting the recommendation, especially in light of the general HSWA duties and reg 3.2.

WKS-17-separation-distances-transportable-containers-classes-6-8-regulatory-clarification .

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We find the common-sense, orthodox approach to statutory interpretation in the attached legal opinion prepared by Chat GPT more persuasive, and the outcome is aligned with the objectives of HSWA.  On a purposive effect approach, therefore, the conclusion reached that the separation distances apply regardless of the type of container holding them is sound.

13.41 opinion_ChatGPT.pdf

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This is one of many flawed technical decisions by WorkSafe that it has published, pointing to problems in relation to how it arrives at its conclusions.  We urge an overhaul of the people and processes with increased consultation before error-ridden theories are published.  There have been far too many of such examples from WorkSafe during the last 5 years for there not to be structural problem. WorkSafe cannot hope to be technically proficient with a management group sorely lacking in technical skills and relevant experience.