Sections 22–26: WHS Upstream Duties

Regulatory citation: Model Work Health and Safety Act, Sections 22–26, Duties of designers, manufacturers, importers, suppliers, and installers, constructors and commissioners

What Are the Upstream Duties?

Sections 22 to 26 of the model WHS Act place duties on businesses that design, manufacture, import, supply, install, construct or commission plant, substances or structures that are used, or could reasonably be expected to be used, at a workplace. These are often called upstream duties because they apply before the item reaches the people who use it.

Why Upstream Duties Matter

Many workplace risks are built in at the design or supply stage. A guard that was never designed, a missing hazard warning or a poorly installed structure can create risks that end users cannot easily fix. Upstream duties put responsibility where the risk can be controlled most effectively.

Core Obligations

1. Designers Must Design Out Risk (s22(1)–(2))

A designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to people who use it for its designed purpose, handle or store it, construct the structure, or carry out reasonably foreseeable activities with it. Those activities include manufacture, assembly, use, storage, decommissioning, dismantling, disposal and demolition. The Act gives inspection, operation, cleaning, maintenance or repair of plant as examples. People at or near the workplace who are exposed are also protected.

2. Manufacturers Must Build It Safely (s23)

A manufacturer must ensure, so far as is reasonably practicable, that the item is manufactured to be without risks to the same groups of people across its lifecycle.

3. Importers Carry the Same Duty (s24)

A business that imports plant, substances or structures for use at a workplace must ensure, so far as is reasonably practicable, that the item is without risks to users, handlers, people who store or construct it, people carrying out reasonably foreseeable activities, and people nearby.

4. Suppliers Carry the Same Duty (s25)

A business that supplies plant, substances or structures for use at a workplace has a matching duty. Supply is a separate role, so a distributor or retailer cannot rely on the manufacturer alone.

5. Test, Analyse and Examine (ss22(3), 23(3), 24(3), 25(3))

Designers, manufacturers, importers and suppliers must carry out, or arrange, any calculations, analysis, testing or examination needed to meet their duty.

6. Pass On Adequate Information (ss22(4)–(5), 23(4)–(5), 24(4)–(5), 25(4)–(5))

Each must give adequate information to the person they provide the item or design to. This covers the purpose for which it was designed or made, the results of tests, including any hazardous properties of a substance, and the conditions needed to use it without risk. On request, they must also take reasonably practicable steps to give current relevant information to people who use or work with the item.

7. Install, Construct and Commission Safely (s26)

A business that installs, constructs or commissions plant or structures must ensure, so far as is reasonably practicable, that the way it does so leaves the item without risks to people who install or construct it, use it, carry out reasonably foreseeable activities such as decommissioning or dismantling, or are nearby.

Common Compliance Approaches

Safe Design Reviews

Review designs against the full lifecycle, including maintenance access, cleaning and eventual demolition.

Supplier Verification

Importers and suppliers check test reports and documentation before goods enter the market, rather than assuming the overseas maker has done so.

Information Packs

Provide manuals, safety data sheets and installation instructions with each item, and keep a process for answering later requests.

Example: Upstream Duties in Practice

A small business imports conveyor systems for food factories. Before its first shipment, it asks the overseas maker for guarding drawings and test results, and has an engineer check that guards allow safe cleaning without reaching moving parts. It writes an English operating and maintenance manual and supplies it with each unit. When a customer asks about a modification, the business replies with updated information.

Related regulations: WHS plant and structures, WHS plant design and item registration, WHS hazardous chemicals.

Note: This summary is based on the model WHS Act published by Safe Work Australia. Model laws only take effect once a jurisdiction enacts them, and each jurisdiction's WHS Act can differ in wording, section numbers and penalties. Victoria has not adopted the model WHS laws and has its own OHS Act. Always check the legislation and regulator guidance that apply where you work.

Frequently Asked Questions

Do upstream duties apply to a business that only resells products?

Yes. Section 25 applies to any business that supplies plant, substances or structures for use at a workplace.

Does an installer have to provide test results?

Section 26 sets a duty about the way the item is installed, constructed or commissioned. The testing and information duties in sections 22 to 25 apply to designers, manufacturers, importers and suppliers.

Are these duties limited to the point of sale?

No. They cover reasonably foreseeable activities across the item's life, including use, maintenance, decommissioning, dismantling and disposal.