NSW Work Health & Safety Act

Module 6: Reasonably Practicable

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About this Module

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Purpose: To outline how the tem reasonably practicable is used in the

WHS Act and how this differs from existing requirements

• Senior Managers, Middle Managers , Business Owners, WHS Coordinators. HSRs Target Audience

• One presentation and one workshop Structure

• Essentials 20 mins, with optional slides 35 minutes Duration

• Definition and Accountabilities of PCBU Prerequisite Modules

• Examples

• Workshop Examples/ Case Studies/Checklist Customisation

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

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What we currently have to do

What is the current use of the term “reasonably practicable” in the NSW legislation?

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OHS Act 2000

Current NSW OHS Act includes reasonably practicable as a “defence” to any alleged breach

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It was not reasonably practicable for the person to comply with the provision

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

DEFENCE TO ANY PROCEEDINGS

OR

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

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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

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Reasonably practicable includes:

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Cost

Reasonably Practicable

Factors to assess reasonably practicable

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?

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Likelihood

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?

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Level of harm

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?

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State of knowledge

Factors to assess reasonably practicable

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?

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Availability Suitability

Factors to assess reasonably practicable

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?

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Cost

Reasonably practicable: Getting the balance

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Reasonably practicable is the balance between risk and time,

effort and cost

Likelihood, degree of harm, knowledge etc

Time, effort and cost to eliminate or minimise risk

Reasonably practicable: Getting the balance

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? Level of time, effort and cost way out of proportion with benefits

in risk minimisation

E.G little likelihood of risk occurring risk/minimal harm

High level of time, effort and cost to eliminate or minimise risk

Reasonably practicable in the workplace

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• For common 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 approach can 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.

Reasonably practicable: the Hierarchy of Control

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• 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 engineering down to personal protection measures.

Reasonably practicable: The hierarchy of control

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STOP OR CHANGE THE ACTIVITY, PRACTICE OR PROCEDURE

ELIMINATE RISKS (so far as is reasonably practicable)

MINIMISE RISKS (so far as is reasonably practicable)

SUBSTITUTE WITH SAFER ALTERNATIVE

REDESIGN TO REDUCE RISK

ISOLATE PEOPLE FROM RISK

STOP USING OR CHANGE THE PRODUCT, PROCESS, PLANT OR SUBSTANCE

USE ENGINEERING CONTROLS

USE ADMINISTRATIVE PROCEDURES

USE PROTECTIVE CLOTHING / EQUIPMENT

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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

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What is the likely impact of these changes?

• Major change is the replacement of an absolute duty of care with a duty qualified by what is reasonably practicable

• The reverse onus of proof has been removed and the prosecution has to make the case that an offence has been committed

• Workplaces currently 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

Worksheet 3A.1

GROUP EXERCISE

Establishing what is reasonably practicable

WHS Act

Establishing what is reasonably practicable

What is the nature of risk? What is the level of risk?

Overall assessment

Falling while accessing products from shelving. o Items are accessed by

ladder.

o Items are bulky.

o Shelving not stable enough for storage demands.

o Mechanical aids not used.

o Shelving accessed at least twenty times a day by four different workers.

o Current controls are not adequate to control risk.

o During peak times products accessed much more regularly

o Workers spend 25% of their time accessing product from shelves

How would you assess the likelihood of a fall from height?

WHS Act

What is the nature of risk? What is the degree of harm?

Overall assessment

Falling while accessing products from shelving. o Items are accessed by

ladder.

o Items are bulky.

o Shelving not stable enough for storage demands.

o Mechanical aids not used.

o Industry statistics show falls the major cause of serious injury

o At highest point of access worker could fall two metres- a fall from this height would result in serious injury.

o Bulky items can fall to floor below if worker loses control

How would you assess the degree of harm of a fall from height?

Establishing what is reasonably practicable

WHS Act

What is the nature of risk? What is the state of knowledge?

Overall assessment

Falling while accessing products from shelving. o Items are accessed by

ladder.

o Items are bulky.

o Shelving not stable enough for storage demands.

o Mechanical aids not used.

o There is a specific regulation on Falls

o There is a code on Fall Prevention

o WorkCover has published a guide on Warehousing

o There is an industry association website with information on storage hazards and practices

Do you think there is information the PBCU should be aware of and be able to apply in the situation?

Establishing what is reasonably practicable

WHS Act

What are the risk control options?

What are reasonably practicable risk controls?

Falling while accessing products from shelving. Design Redesign shelving and working heights Engineer Use mechanical aids

o Reduce shelving to a height where people can access product from ground level or from solid platform.

o If physically possible install more shelving to avoid need for storage at height.

o If storage still at height, particularly if above 2 metres use an elevated work platform (mobile, temporary or fixed).

o Use manual or mechanical aids to lower or raise items (e.g. order picking forklift).

o If assessed as suitable and three point contact can be maintained, use a ladder.

Establishing what is reasonably practicable

WHS Act

Assessment questions

1. Reasonably practicable means that if a risk control is costly it does not have to be used?

2. Knowing what is reasonably practicable means that some form of risk assessment has to be done for every WHS issue that arises?

3. If something was reasonably practicable ten years ago there is no need to change how the risk is controlled?

4. If reasonably practicable is not a defence any more how will a PCBU demonstrate that they have done all they can to comply?

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