reasonably practicable

12 August 2020 posted by Recovery Partners

When it comes to Work Health and Safety (WHS), the legal terminology around the rules and requirements can be confusing. But never fear, we’re here to help! In this article, we’ll unpack the term ‘reasonably practicable,’ how it is applied in a legal situation and the processes surrounding it, so you can feel assured your business is doing all the right things.

What does reasonably practicable mean?

Put simply, reasonably practicable is an Australian legal requirement that all Persons Conducting a Business or Undertaking (a formal term for the person in charge of a business) must meet under the Work Health and Safety Act. To act in a reasonably practicable manner, the person declared by the business as responsible (known as a duty holder) must demonstrate that they are doing everything they possibly can to ensure the health and safety of their organisation’s workers, volunteers or visitors. Another way to look at this is that it’s the responsibility of the duty holder to do whatever is realistically within their power to minimise or completely remove any health and safety risks – nothing more and nothing less.

When would you need to test whether a PCBU has acted in a reasonably practicable manner or not? And how do you do that?

Unfortunately, the term reasonably practicable is more commonly used when a breach of health and safety has occurred. However, it is incredibly important for all Persons Conducting a Business or Undertaking (PCBU) and in fact any other types of duty holders, such as manufacturers, suppliers or installers, to recognise that determining what is reasonably practicable is something that needs to be considered at every point in the business process, not just retrospectively after an incident. To figure out exactly what is reasonably practicable in any given situation, duty holders must consider all the possible foreseeable hazards and risks associated with their product, service and workplace. Then, they need to assess what can be done to minimise the risk and what is actually achievable in a common-sense scenario. According to Safe Work Australia, the matters that must always be considered are:

1. The likelihood of the hazard or the risk concerned occurring.

This is pretty simple. The more likely it is that the risk will occur, the more important it becomes when determining what is reasonably practicable. Aliens coming down from outer space and abducting your workers? Not a very likely risk, so consequently, in this instance, protecting your workers from alien attacks is unlikely to be found reasonably practicable. A worker getting injured due to faulty equipment being overdue for a service? Probably quite likely and would certainly be considered a breach of what is reasonably practicable.

2. Degree of harm that may result if the hazard or risk eventuated.

If things go awry, how bad is it going to be? The greater harm caused by a potential hazard or risk will significantly impact whether it is considered reasonably practicable to eliminate it. So, a small papercut probably isn’t going to qualify, but the realistic possibility of serious injury or worse will definitely impact this criterion.

3. What the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or minimising the risk.

The more knowledge the duty holders have or should have about the potential problem, the more they will be held to account. It’s important to emphasize that ignorance is not a reasonable defence if, as a duty holder, it is reasonable for you to have acquainted yourself with the details of the potential risk or hazard through consultations with staff, risk assessments and knowledge of the relevant Codes of Practice. A fair way to determine this would be to test whether the duty holder’s counterparts in the same industry would be across the issues known as ‘the state of knowledge.’ This criterion also serves to protect duty holders from being held accountable for failing to predict freak accidents or genuinely unlucky situations.

4. Availability and suitability of ways to eliminate or minimise risks.

Okay, so your duty holder has identified a potential risk or hazard. Then they need to figure out what they can do to minimise or ideally eliminate that risk. This criterion tests whether the duty holder has considered all the resources available to achieve this, balanced with what would ideally be the most suitable course of action. More often than not, these factors are specific to an individual workplace because each workplace is unique. Common factors could include whether the ideal equipment to minimise the risk actually exists and whether the PBCU can get access to it. Basically, it needs to be a practical solution to actually implement in the current environment.

5. Cost of eliminating or minimising the risk.

You know what they say, safety first. And to be honest, most of the time, this rings true, which is why the cost of eliminating or minimising the risk is the last consideration to be taken into account when determining what is reasonably practicable. Cost should only ever be considered once the previous four criteria have been thoroughly satisfied. If you do get to the point where cost is a factor, don’t think you can fudge the numbers! Aside from calculating the cost of eliminating the risk or hazard, you’ll also need to factor in potential savings you could have from fewer incidents, reduce staff turnover and even potentially improve productivity when your workers feel more confident in your ability to prioritise their health and wellbeing. This doesn’t mean that a duty holder has to choose the most expensive option to keep people safe, but they have to demonstrate that a cheaper alternative will be just as effective.   So, there you have it — a quick guide to determining what is reasonably practicable in a WHS setting. For more information, make sure you familiarise yourself with the full set of regulations in the Work Health and Safety Act and take action to ensure everyone in your business stays as safe and well as possible.  

 

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Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at www.workcover.nsw.au