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).
Four-step process
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 include:
- 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 test
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 same duty.
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 law.
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 new standard.
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.
