NSW Work Health & Safety Act

NSWWork Health & Safety Act Module: Reasonably Practicable WHS Act

About this Module Purpose: To outline how the tem reasonably practicable is used in the WHS Act and how this differs from existing requirements WHS Act

Learning Outcomes The key learning outcomes of this module are: • An understanding of the concept of reasonably practicable in qualifying responsibilities • An understanding of the changes from the current NSW legislation • The capacity to establish what is reasonably practicable WHS Act

What we currently have to do What is the current use of the term “reasonably practicable” in the NSW legislation? WHS Act

OHS Act 2000 CurrentNSW OHS Act includes reasonably practicable as a “defence” to any alleged breach DEFENCE TO ANY PROCEEDINGS It was not reasonably practicable for the person to comply with the provision OR The commission of the offence was due to causes over which the person had no control and against which it was impracticable for the person to make provision WHS Act

What is different in WHS Act in the use of reasonably practicable? • Until recently NSW OHS Act includes reasonably practicable as a defence in any proceedings against a person for an offence • Reverse onus of proof now removed • Under the WHS Act the prosecution will have to prove the case • Under the WHS Act the obligations of the PCBU will be qualified by reasonably practicable WHS Act

Overview of what WHS Act says about reasonably practicable The PCBU has a duty to ensure, so far as is reasonably practicable, the health & safety of workers: • Who are engaged to carry out work for their business or undertaking; and • Whose activities in carrying out their work are influenced or directed by the person, while the workers are at work in the business or undertaking WHS Act

Reasonably practicable includes: Likelihood Degree of harm Reasonably Practicable Availability & suitability of controls State of knowledge Cost WHS Act

Factors to assess reasonably practicable Likelihood Estimating likelihood can be based on what we know about a risk (e.g. how often particular risks result in injury). It must also be based on the actual circumstances of the workplace and the way work is done. We can ask the following questions to help work out the likelihood • How often does the risk situation occur? • How long might people be exposed to the risk? • How might operating conditions increase risk? • How are effective current controls in minimising risk? WHS Act

Factors to assess reasonably practicable Accounting for the degree of harm or the likely consequences of a risk resulting in injury means looking at what injuries or incidents could result from the hazard, how many people might be affected and how widespread could the effects be. We can ask the following questions to understand likely consequences • Is there available information on consequences? • What factors could influence the severity of an injury? • How many people could be injured? • Are there circumstances that could magnify the severity of an injury or incident? Level of harm WHS Act

Factors to assess reasonably practicable Accounting for what a person knows or ought reasonably know is sometimes referred to as the state of knowledge about a hazard or risk and ways of controlling it. We can ask the following questions to find out about the hazard or risk • Are there specific regulations that apply? • Are there approved codes of practice that apply? • Are there reputable technical standards that apply? • Are there published guidelines from regulators or industry associations that apply? • What industry practices are currently used? • What expert advice is available? State of knowledge WHS Act

Factors to assess reasonably practicable Availability Suitability Identifying ways to eliminate or minimise the risk that are available means that ways of eliminating or reducing risk are available to purchase or apply in your workplace. Risk controls are suitable if they are feasible to apply in your workplace and have been shown to be effective in similar circumstances. We can ask the following questions to find out about availability and suitability • Is an available product or process feasible to use ? • Is an available product or process suitable to use? • Is there an effective way of eliminating the risk? • Is there an effective way of minimising the risk? WHS Act

Factors to assess reasonably practicable Cost Only after all the other factors have been taken into account does cost get taken into account. Risk controls should be implemented unless the cost of doing so is so disproportionate to the benefit (in terms of reduction in the level of the risk) that it would be clearly unreasonable to require the expenditure. We can ask the following questions to consider cost • Will the control significantly reduce the risk? • Will the control significantly reduce the degree of harm? • Are their cost effective alternatives to eliminate or minimise risk? • Should the activity be discontinued? WHS Act

Time, effort and cost to eliminate or minimise risk Likelihood, degree of harm, knowledge etc Reasonably practicable is the balance between risk and time, effort and cost Reasonably practicable: Getting the balance WHS Act

High level of time, effort and cost to eliminate or minimise risk E.G little likelihood of risk occurring risk/minimal harm Level of time, effort and cost way out of proportion with benefits in risk minimisation Reasonably practicable: Getting the balance ? WHS Act

Reasonably practicable in the workplace • Forcommon hazards such as noise, falls and manual handling there are regulations that define what has to be done to control risks. These common hazards also have supporting codes of practice to provide guidance on how to control risks. • For more complex or workplace specific risks a risk management approachcan be used to establish what is reasonably practicable • The most common decisions about reasonably practicable relate to the type of risk control to be used (the hierarchy of control).In other words what is the highest level of protection that is reasonably practicable. WHS Act

Reasonably practicable: the Hierarchy of Control • The WHS Act advocates the highest level of protection as is reasonably practicable and the model regulations in some cases mandate a set of preferred controls consistent with the hierarchy of control • Consequently the level at which controls are applied is subject to decisions about reasonably practicable. For example, falls from height are regulated with a preferred set of controls from design and engineeringdown to personal protection measures. WHS Act

ELIMINATE RISKS (so far as is reasonably practicable) STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE MINIMISE RISKS (so far as is reasonably practicable) SUBSTITUTE WITH SAFER ALTERNATIVE MOST RELIABLE LEAST RELIABLE Highest LEVEL OF PROTECTION Lowest USE ENGINEERING CONTROLS REDESIGN TO REDUCE RISK ISOLATE PEOPLE FROM RISK USE ADMINISTRATIVE PROCEDURES USE PROTECTIVE CLOTHING / EQUIPMENT Reasonably practicable: The hierarchy of control WHS Act

What NSW OHS Regulation 2001 says about reasonably practicable NSW regulation sets out a requirement that an employer must eliminate any reasonably foreseeable risk to health and safety. If not reasonably practicable to eliminate then control to the lowest level reasonably A hierarchy of control is used similar to that in the model regulations WHS Act

What NSW OHS Regulation 2001 says about reasonably practicable The example of noise shows that there is ample guidance on what the control options are as illustrated in this construction guide WHS Act

What is the likely impact of these changes? • Major change is the replacement of anabsoluteduty of care with a duty qualified by what is reasonably practicable • Thereverse onus of proof has been removed and the prosecution has to make the case that an offence has been committed • Workplacescurrently complying with NSW legislation will be well placed for the new laws • Workplaces with a form of risk management to tailor their control measures to their particular circumstances will be well placed for the new laws WHS Act

Worksheet 3A.1 GROUP EXERCISE Establishing what is reasonably practicable WHS Act

Establishing what is reasonably practicable WHS Act

Assessment questions • Reasonably practicable means that if a risk control is costly it does not have to be used? • Knowing what is reasonably practicable means that some form of risk assessment has to be done for every WHS issue that arises? • If something was reasonably practicable ten years ago there is no need to change how the risk is controlled? • If reasonably practicable is not a defence any more how will a PCBU demonstrate that they have done all they can to comply? WHS Act

NSW Work Health & Safety Act