Safe Work Australia (SWA) has issued guidance on the standard it expects a Person Conducting a Business or Undertaking (PCBU) to apply when determining what is reasonably practicable to meet its obligation to ensure the health and safety of its workers in: How to determine what is reasonably practicable to meet a health and safety duty (the Guide).
Duty of care and reasonably practicable
Under s 19 of the Work Health and Safety Act 2011 (WHS Act) a PCBU must ensure, so far as is reasonably practicable, the health and safety of its workers. To comply with this duty, a PCBU must eliminate or minimise risks to health and safety "so far as is reasonably practicable" (s 17 of the WHS Act).
Section 18 of the WHS Act defines "reasonably practicable" as the measures that are, or were at a particular time, reasonably able to be done by the PCBU to ensure health and safety, considering all relevant matters including:
- the likelihood of the hazard or risk occurring
- the degree of harm that might result from the hazard or risk
- what the person concerned knew or ought to have known about the hazard or risk and ways to eliminate or minimise the risk
- the availability and suitability of ways to eliminate or minimise the risk, and
- after making this assessment, the costs associated with eliminating or minimising the risk, including if it was grossly disproportionate to the risk.
The Guide includes a four-step approach for PCBUs to follow to comply with the duty to eliminate or minimise risks so far as is reasonably practicable.
Step 1 — Identifying the circumstances, hazards and risks
Identifying what is reasonably practicable in the circumstances will depend on a number of factors present at the time in question, including:
- physical environment in which the activity will occur
- suitability of particular control measures
- people involved in the activity (including if there are multiple parties involved)
- processes that are already, or need to be, in place
- legislation that limits or directs how an activity may need to be carried out, and
- time allowed for the activity to be undertaken.
As such, SWA may consider it reasonable for a person conducting a risk assessment to have gone through these processes and considered a range of sources when identifying hazards. Once the hazards have been identified, it may be necessary to identify and assess the risks associated with each hazard to determine the appropriate control measure to use.
Step 2 — Determining what you can do
Identifying and adopting the appropriate control measures
In determining appropriate control measures to eliminate or minimise the identified risks, the Guide considers it a reasonably practicable measure to "identify as many control measures as possible".
In determining the appropriate control to implement, PCBUs are required to apply the hierarchy of controls beginning with hazard elimination, then substitution, isolation, engineering controls and, finally, administrative action and personal protective equipment.
The control measure that provides the highest level of protection should be used unless it is not reasonably practicable.
Step 3 — Determine what is reasonably practicable to do
The Guide advises that just because a hazard control exists does not mean it is reasonably practicable to implement it. To determine what is reasonably practicable requires "an assessment of what a reasonable person in the position of the duty holder would do in the circumstances, taking a careful and prudent approach and erring on the side of caution".
Where it has been assessed that the likelihood of the risk and/or the degree of harm is high, it would be deemed to be reasonably practicable for a PCBU to implement a high level of control.
Step 4 — Reviewing risk controls
The control measures that a PCBU has in place need to be reviewed and revised when circumstances change. Relevant changes include a change in a work process, the physical environment or the introduction of new personnel with different skills. It also includes when new hazards are identified or new controls are invented through advances in science or experience.
Cost is only to be considered after the risk and control measures have been assessed. When calculating cost, the Guide provides that the cost of purchase, installation, maintenance and operation of the control measure and any impact on productivity should be considered. However, savings incurred through reduction in incidents, injuries, illnesses, staff turnover and productivity improvements should also be considered. Although not suggested in the Guide, the cost of training on the new control measure is also relevant.
When assessing the cost impact of the control, the PCBU must consider the likelihood and/or degree of harm of the risk, as well as the reduction in the likelihood and degree of harm if the control is implemented. The higher the likelihood and degree of harm, the less weight should be given to the cost.
Where the cost of implementing the control is grossly disproportionate to the risk, it will not be deemed reasonably practicable for the PCBU to implement it. The Guide states that if a PCBU cannot afford to implement the appropriate control it should cease performing the activity.
Capacity to influence or control
The capacity to influence or control is relevant in determining what is reasonably practicable. A PCBU is only expected to ensure the health and safety of its workers to the extent that it has the capacity to influence or control the particular activity. The PCBU is entitled to rely on the skill and expertise of a specialist or technical expert it has engaged to perform the activity.
Implications for agencies
Agencies and individual PCBUs should familiarise themselves with the four-step approach outlined in the Guide and review their policies and processes to meet their obligations to ensure the health and safety of workers.
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.