As discussed in previous News & Articles, the role “reasonably practicable” should play in Australia’s future Occupational Health and Safety legislation polarised the 242 written submissions on the “harmonised” Model Work Health and Safety Act. In fact, out of the 157 questions put to the public, whether “reasonably practicable” should be a qualifier of the duties (and therefore is part of the burden for the prosecution to prove) or whether it should be a defence (and therefore the responsibility of the defendant to prove) was one of the key points of contention1.
Reasonably Practicable is certainly not a new term within Australian OHS law, as can be seen in the following extracts:
Commonwealth: Occupational Health and Safety Act 1991, Section 16
“An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.”
ACT: Work Safety Act 2008, Section 14
“a person manages risk in relation to a duty by— (a) taking reasonably practicable steps…”
NT: Workplace Health and Safety Act 2007, Section 5
“An employer has a duty… to ensure, as far as reasonably practicable, that workers and others are not exposed to risks to health or safety arising from the conduct of the employer’s business.”
SA: Occupational Health, Safety and Welfare Act 1986, Section 19 and
Tasmania: Workplace Health and Safety Act 1995, Section 9
“An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health…”
WA: Occupational Safety and Health Act 1984, Section 19
“An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards…”
NSW & Qld
Within New South Wales (NSW) and Queensland (Qld), the obligations held by employers and others do not mention practicability but the defendent who has been charged with failing to meet their legal duty may argue that it was not reasonably practicable for them to meet their obligation (NSW) or that they took reasonable precautions (Qld).
Future State
Under the Model Work Health & Safety Act prosecutors (i.e. the OH&S regulator of the relevant state or territory) will have the obligation to prove that the duty holder failed to meet their obligation and that it was reasonably practicable for them to do so.
Definition of Reasonably Practicable
Under this model Act, reasonably practicable means doing what is, or was at the time, reasonably able to be done, taking into account and weighing up all relevant matters including:
a) the likelihood of the hazard concerned occurring,
b) the degree of harm that might result from the hazard, and
c) what the person concerned knows, or ought reasonably to know about:
i) the hazard or risk, and
ii) the ways of eliminating or minimising the risk, and
d) the availability and suitability of ways to eliminate or minimise the risk, and
e) after assessing the risk and ways of eliminating or minimising the risk, the cost associated and available ways of eliminating / minimising the risk, including whether the cost is grossly disproportionate to the risk.
Risk Assessment Required
As can be seen in points a) and b) risk is assessment is required under the future law and this risk assessment must consider likelihood and consequence. It is also important to note that this risk assessment is required before considering controls, costs etc.
Knowledge of Duty Holder
Point c), and sub-points i) and ii) consider the knowledge of the duty holder in regards to the risk methods of eliminating or controlling it. The key point here is that ignorance is not a defence. The point clear states “what the person concerned knows” but more importantly “or ought reasonably to know”. It is more than reasonably to consider that a manager would know what is common practice in their industry, or even what is best practice. A manager who has requested a risk assessment and consulted with the workforce would, in most cases, understand both the risk and options to manage it.
Availability of Controls
Point d) acknowledges that there may not be a method available to eliminate, or even control, a risk. However, more likely it considers the time to implement the control, as well as whether it is in fact the best option.
Cost to Eliminate or Control
Finally, after the risk assessment and control determination process has been undertaken the organisation is encouraged to consider the costs of identified actions. This final point makes it clear that only ’grossly’ disproportionate costs may make elimination or control impracticable. Clearly one would argue that a $100,000 spend would not be a reasonable spend if the hazard was very unlikely to hurt someone and could only result in light bruising.
It is likely that this point will be most relevant when considering total elimination of a hazard which is widely acknowledged to be both difficult and extremely costly in many industries, particularly those with long standing, well established safety standards, as the ’quick wins’ have long been had.
Not Exhaustive
One final point to make about this definition; it is not the sum total of all considerations to be made. The first sentence states that the duty holder must take into account and weight up “all relevant matters including” those in the list. In many circumstances other factors may need considering.
Next Steps
All organisations need to gain a better understanding of the proposed legislation. OSHEM Solutions is working with our clients to assist them to do this, including undertaking gap analysis of their current processes against the model. OSHEM Solutions will also continue to produce these types of articles over coming months.
If your organisation does not fully understand the implications of the changes or would like a gap analysis undertaken, call us on 1300 657 279 or click this link to Contact Us.