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New Safe Work Australia Guide

A new Safe Work Australia guide, designed to help PCBUs comply with their duty to do what is “reasonably practicable” to ensure health and safety, explains how much weight employers can place on costs when deciding whether or not to adopt a hazard control.

The 20-page guide includes a four-step process for complying with the duty to eliminate or minimise risks “so far as reasonably practicable” (see s17 of NSW’s mirror WHS Act, for example). The first three steps are:

 

  1. Identifying the circumstances, hazards and risks.
  2. Determining what can be done to eliminate or minimise risks through the hierarchy of controls.
  3. Determining what is reasonable to do.

Identifying the circumstances, hazards and risks: through workplace inspections, by consulting with workers and by obtaining and considering information about the work from, for example, Codes of Practice, OHS regulators, reputable technical standards (such as those published by Standards Australia), scientific and technical literature, and industry publications. PCBUs are required to consult with workers, HSRs and others who are or could be involved in the particular work, and to “consult, co-operate, and co-ordinate activities, so far as is reasonably practicable, with all other persons who have a work health and safety duty in relation to the same matter”, the guide says. “A PCBU must find out which duty holders are doing what and work with them in a co-operative and co-ordinated way so that risks are eliminated or minimised… When entering into contracts, a duty holder should review the job to be undertaken, and discuss any safety issues that may arise and how they will be dealt with”;

Determining what can be done to eliminate or minimise risks through the hierarchy of controls: For some risks the WHS Regulations require specific control measures, such as fall arrest systems, guarding on plant, the provision of respiratory equipment for emergency entry into confined spaces, and the removal of people from lead risk work; and

Determining what is reasonable to do: “Just because something can be done does not mean that it is reasonably practicable for the duty holder to do it. “The more likely the risk, the more that is required to be done to eliminate or minimise it… It may not be reasonable to require expensive and time consuming controls, for example engineering

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controls, to be applied to minimise or further minimise a low likelihood of minor harm.”

Cost Factors

Under s18 of the model WHS Act, a PCBU might not be required to implement an identified control measure if the cost of doing so “is grossly disproportionate to the risk”. However, costs can only be taken into account after assessing the “extent of the risk and the ways of eliminating or minimising it”, the guide says. “The more likely the hazard or risk, or the greater the harm that may result from it, the less weight should be given to the cost of eliminating the hazard or risk,” it says. If the risk of serious injury or death cannot be eliminated or minimised by any “affordable” control measure, then “it may be reasonable to expect and require a duty holder to eliminate the risk by ceasing the relevant activity”. If, on the other hand, the costs of modifying plant to eliminate the slight risk of minor sprains, for example, are high, then such engineering changes might not be reasonably required. “What may be required instead are detailed instructions on how to safely use the plant, provision of training and a higher level of supervision to ensure the system of work is followed.”

Objective Test

The “reasonably practicable” test is an objective one, where a particular PCBU’s “capacity to pay” is irrelevant, the guide says. “A PCBU cannot expose people to a lower level of protection simply because it is in a lesser financial position than another PCBU facing the same hazard or risk in similar circumstances,” it says. “If a PCBU cannot afford to implement a control measure that should be implemented after following the weighing up process set out in section 18 of the WHS Act, they should not engage in the activity that gives rise to that risk.”

When to review controls

The fourth step of Safe Work Australia’s process for eliminating or minimising risks is reviewing risk controls. “Circumstances can change over time and this may result in a change in the hazards and risks or in the ways in which they may be eliminated or minimised,” the guide says. “This may mean that what was reasonably practicable at an earlier time is no longer so and something more or different may need to be done to control the hazards and risks.” PCBUs should review risk controls when they’re no longer effective, before a change is made to the workplace, if a new hazard or risk is identified, or when an HSR requests a review, the guide says.

How to Determine what is Reasonably Practicable to meet a Health and Safety Duty: http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/774/Guide-Reasonably-Practicable.pdf