For jurisdictions such as NSW and Queensland the concept of
"reasonably practicable" is a foreign one in work health
and safety laws. Introduced as part of the
"harmonisation" of WHS across Australia, Safe Work
Australia has recently released guidelines on how to interpret and
put into place the concept of "reasonably practicable" in
the workplace (Guide).
Although varying standards of compliance exist under WHS laws,
for example officers' due diligence, persons conducting a
business or undertaking (PCBU, which includes employers) have
health and safety duties subject to the concept of "so far as
is reasonably practicable".
This concept is set out in the new WHS legislation (for example,
the Work Health and Safety Act 2011 (NSW) (WHS
Act)) as essentially comprising 5 main elements, including
likelihood of hazards/risks occurring, degree of harm, knowledge,
how to eliminate or minimise and finally costs. These set of
criteria are not an exhaustive list, as indicated in the Guide
other relevant factors to consider when determining what is
reasonably practicable may include the impact of competing
legislative duties and the extent of control over a particular
matter (contractual or actual).
As noted by the Guide there are two elements for what is
"reasonably practicable" to do:
What can be done in the circumstances?
What is reasonable in the circumstances?
Essentially these two elements require a balancing act whereby
the highest level of protection must be implemented which is
reasonable in the circumstances. Costs should not factor in until
the end, and even then it would be risky to solely rely on costs as
the reason for not implementing a safety mechanism which could
prevent injury and perhaps save a life.
One way of simplifying the process is set out in the Guide
– PCBUs can follow four steps to determine what is reasonably
practicable to ensure they meet their WHS obligations. These steps
Identifying the circumstances, hazards and risks.
Determine what you can do.
Determine what you are reasonably able to do.
Reviewing risk controls.
What is 'reasonably practicable' is an objective
The Guide specifies that what is 'reasonably
practicable' is to be determined objectively, such that the
standard of behaviour is that of a reasonable person in the
duty-holder's position and who is required to comply with the
Importantly the Guide emphasises that Courts will look at what
is "reasonable foreseeable" which includes what a PCBU
ought reasonably to know. Such a requirement would necessitate
PCBU's keeping up to date with WHS laws, industry guidelines
and technological changes which may have an impact on what is
reasonable in all the circumstances.
WHS Policies – Update if you haven't done so
Given the change from the former strict liability standard for
WHS in NSW and Queensland to this concept of reasonably
practicable, employers should ensure that they review their WHS
policies where they haven't yet done so in order to avoid
taking on a higher contractual liability than otherwise required at
As part of this review associated policies such as bullying,
harassment, discrimination and social media (often contained within
IT policies) should also be reviewed to ensure they reflect this
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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