The purpose

• This document provides guidance on the health and safety standards HWH must meet under the Work Health and Safety (WHS) Act and Regulations. 
• In net terms, we must do what is reasonably practicable to ensure health and safety. 
• The ‘reasonably practicable’ standard is not new in Australian work health and safety law. 
  • The standard is intended to be a very high one. 
  • The WHS Act states that workers and other persons should be given the highest level of protection from hazards and risks arising from work, so far as is reasonably practicable. 

Our duties 

• S.17: A duty imposed on organisations to ensure health and safety requires them to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to do so, to minimise the risks so far as is reasonably practicable. 
• S.19-26 of the WHS Act require HWH so far as is reasonably practicable:
  • the health and safety of workers who are engaged or caused to be engaged be HWH, or whose work is directed or influenced us 
  • the health and safety of people who are not workers, such as members of the public, is not put at risk from work carried out as part of the conduct of the business or undertaking 
  • a workplace of which we have management or control is without risks to the health and safety of any person, including the means of entering and exiting the workplace 
  • the fixtures, fittings or plant at a workplace of which we have management or control are without risks to the health and safety of any person 
  • any item of plant, a substance or a structure we design, manufacture, import or supply is without risks to the health and safety of any person described in the sections
  • the way in which an item of plant or a structure is installed, constructed or commissioned by HWH ensures it is without risks to the health and safety of any person described in the sections.
• The WHS Regulations also contain requirements for meeting the standard of reasonably practicable: 
  • when managing health and safety risks generally under the regulations (Reg 35)
  • in relation to particular types of hazards and risks, for example:
    • ensuring specified aspects of the workplace environment are without risks to health and safety (Reg 40)
    • ensuring the provision and maintenance of welfare facilities, such as washing facilities and drinking water (Reg 41)
    • minimising the risk of falling objects (Reg 55)
    • minimising the need for hazardous manual tasks to be carried out when designing an item of plant or a structure (Reg 61)
    • eliminating or minimising the need for entry into a confined space when designing, manufacturing, importing, supplying, installing or constructing an item of plant or a structure (Reg 64)
    • ensuring a person does not enter a confined space before specific requirements of the regulations have been complied with (Reg 65)
    • ensuring no person, plant or thing at a workplace comes within an unsafe distance of an overhead or underground electric line (Reg 166).

• S.18: In this Act, reasonably practicable, in relation to our duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including:
  • the likelihood of the hazard or the risk concerned occurring; and
  • the degree of harm that might result from the hazard or the risk; and
  • what the person concerned knows, or ought reasonably to know, about the hazard or risk, and about the ways of eliminating or minimising the risk; and
  • the availability and suitability of ways to eliminate or minimise the risk; and
  • after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
• The process requires that all relevant matters, including those listed in the section, be considered and weighed when determining what is reasonably practicable in particular circumstances. 
• There are two elements to what is reasonably practicable. We must consider 
  1. what can be done—that is, what is possible in the circumstances for ensuring health and safety then 
  2. whether it is reasonable in the circumstances to do all that is possible.
• Some of the matters listed in S18 will be relevant to identifying what can be done, for example, if control measures that will eliminate or minimise the risk are available and suitable. 
• Other matters will be relevant to identifying whether what can be done is reasonable to do, for example, if the risk and degree of harm are grossly disproportionate to the cost of implementing the control measure. 
• To identify what would be reasonably practicable to do, all of the relevant matters must be taken into account and a balance achieved that will provide the highest level of protection that is both possible and reasonable in the circumstances. No single matter determines what is or was at a particular time reasonably practicable to be done to ensure health and safety.
• Although S18 sets out a number of relevant matters, they are not the only things that may be relevant. Other matters may also need to be considered. For example:
  • There may be other legislation that requires or prohibits certain activities and therefore limits what HWH can do. In that case, we must do what it is reasonably practicable for us to do while complying with other legislation.
  • HWH may or may not have the ability to control or influence a particular thing or another person’s actions.
• The WHS Act makes it clear that we avoid responsibility for our obligations under the WHS Act by contracting them out to someone else.

• The process for determining what is reasonably practicable is consistent with the risk management process described in the Code of Practice: How to manage work health and safety risks. 
• Risk management involves a systematic process to:
  • identify hazards associated with the activity or environment
  • if necessary, assess the risks associated with the hazards
  • identify and implement available and suitable control measures to eliminate or minimise the risks
  • review the effectiveness of the control measures.
• Reg 36 sets out a hierarchy of control measures that apply if it is not reasonably practicable for us to eliminate risks to health and safety, in the following order:
  • substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk
  • isolating the hazard
  • implementing engineering controls
  • implementing administrative controls
  • ensuring the provision and use of suitable personal protective equipment.
• By identifying particular types of control measures in terms of their effectiveness and reliability, Reg 36 requires a duty holder to step through a process by which risks can be minimised so far as is reasonably practicable.  

• The courts have on numerous occasions noted that what is ‘reasonably practicable’ is to be determined objectively. 
• This means that we must meet the standard of behaviour expected of a reasonable person in our position and who is required to comply with the same duty.
• This objective test is demonstrated by the requirement in S18 to take into account what we ought reasonably to know.
• As part of the objective test, the courts will look at what was reasonably foreseeable by someone in our position at the particular time.

• Control is not explicitly stated in the model WHS Act’s definition of what is reasonably practicable. The capacity to exercise influence and control over a relevant matter is, however, something that is taken into account when determining what is reasonably practicable.
• We may be found to have control over a relevant matter if we have the capacity to do so, whether that capacity is exercised or not. 
• Control may arise from the legal ability to take control of the work activity, for example, under the terms of a contract, or from the practical ability to do so, for example, by being able to direct people on site and have those directions followed. That is, what we do and what we can do will determine if we have control.
• S.16(3)(b): If more than one person has a duty for the same matter, each person must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
• This clearly shows that HWH is expected to comply with our duties only so far as we can influence and control relevant matters. 
• The more control or influence over the work, the greater the steps that HWH needs to take to discharge our duty. It may not be reasonable to require HWH to do things that are beyond our control or to require us to acquire the necessary control. 
• An inability to control relevant matters must necessarily imply that it is either:
  • not possible for HWH to do anything, or 
  • it is not reasonable to expect us to do so. 
• Control is, therefore, an implied element in determining what is reasonably practicable.

• The intention that control is implicit in identifying what is reasonably practicable is consistent with the decisions of courts in Australia. 
• Most of these decisions have assumed the relevance of control and have dealt with questions about whether, in the particular circumstances, the duty holder had control or whether the duty holder should have exercised the control they had.

• What is reasonably practicable to do will depend on a number of factors present at the particular time in question, for example:
  • the physical environment in which the activity occurs as this can affect:
    • how activities may be carried out
    • the hazards and risks that may arise
    • the availability of things necessary to minimise risk, e.g. energy sources or communication systems
  • the suitability of particular control measures, e.g., whether using different manual handling equipment can remove a potential for inappropriate lifting.
  • the people involved in the activity, including whether there are multiple parties
  • the processes that are already in place or need to be in place
  • legislation that limits or directs how an activity may be carried out, (e.g. conditions on licences or requirements to comply with regulations or by-laws relevant to the particular activity or place)
  • the time allowed for the activity to be carried out.

• A hazard is a situation or thing that can potentially harm a person. Hazards at work can include noisy machinery, chemicals, electricity, manual handling, bullying or violence at the workplace.
• HWH must identify each hazard that is associated with particular work, the work environment and things used to carry out the work. Hazards can be identified through various means, including:
  • client visits
  • consulting with carers
  • obtaining and considering information about the work, including from:
    • relevant codes of practice
    • the regulator
    • reputable technical standards, e.g. those published by Standards Australia
    • industry publications, and
    • published scientific and technical literature.
• The Code of Practice: How to manage work health and safety risks provides further guidance on hazard identification. Other codes of practice, such as the Code of Practice: Hazardous manual tasks, also provide guidance on identifying specific hazards.

• Having identified the hazards that may cause harm, it may be necessary to identify and assess the risks associated with each hazard to determine what control measures should be used.
• Each hazard may cause different types of harm, each of which may be more or less likely. 
• S18 of the WHS Act requires weighing the likelihood and degree of harm when identifying what is reasonably practicable. This is commonly known as assessing the risk. 
• The higher the risk, the more likely the harm is to occur or the greater the degree of harm that may occur. The higher the risk the more a duty holder should do to eliminate or minimise the risk.

• Keeping cash on premises provides the potential for a robbery to occur (a hazard) and this may cause physical harm (e.g. being shot) or psychological harm (e.g. post-traumatic stress disorder). The work environment, including physical barriers, may mean the likelihood of death or serious injury from being shot is low. The likelihood of psychological trauma may be much higher. 
• Each type of harm and the likelihood of it occurring should be considered when identifying what should be done to control the risks.  
• Eliminating or minimising the potential for exposure to the hazard will lower the likelihood of harm. Implementing control measures may lower the degree of harm that might result. 

• Using manual handling equipment will reduce or eliminate the risk of back injury
• A risk assessment may not be necessary for all risks, but it will be necessary in most cases to allow the duty holder to consider what steps may reasonably be required to eliminate or minimise the risk.
• A risk assessment should be done when:
  • there is uncertainty about how a hazard may result in injury or illness
  • the work activity involves a number of different hazards and there is a lack of understanding about how the hazards may interact with each other to produce new or greater risks, and 
  • Changes in the workplace may impact the effectiveness of control measures.

• Consultation with workers and others who are or may be involved in a particular work or workplace is an important means of obtaining relevant information. This is one reason why consultation is a requirement under the WHS Act.
• S47 of the WHS Act requires HWH to consult, so far as is reasonably practicable, with workers who carry out work for the business or undertaking and who are, or are likely to be, directly affected by a matter relating to work health and safety. HWH must consult with a health and safety representative if the workers are represented by one and should also consult with any health and safety committee established for the workplace.
• S46 of the WHS Act requires HWH 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. 
• It should never be assumed that someone else is taking care of a health and safety matter. We must find out which duty holders are doing what and work with them in a cooperative and coordinated way so that risks are eliminated or minimised so far as is reasonably practicable.
• When entering into contracts, we should review the service to be carried out, discuss any safety issues that may arise and how they will be dealt with and communicate their safety requirements and policies. Remember we cannot transfer our responsibilities to another person.
• Further guidance on consultation is available in the Code of Practice: Work health and safety consultation, co-operation and co-ordination.

STEP 2 – DETERMINE WHAT YOU CAN DO

• Once HWH understands the hazards and risks, the next step is to ask what can be done to eliminate or minimise the risks.
• S18 requires us to consider the ways of eliminating or minimising risks. There may be a number of different ways to minimise a risk, each of which may reduce the likelihood or severity of harm to a different degree. Some of these control measures may operate effectively independently, while others may need to be combined.
• It is, therefore, necessary to identify options for eliminating or minimising risk in order to determine what can reasonably be done in the circumstances. We should identify as many control measures as possible to give them the greatest scope to choose and apply the most appropriate means to eliminate or minimise risk in particular circumstances.

• The hierarchy of risk controls identifies the various types of control measures that should be used and is set out in the following diagram:

• Reg 36 requires HWH to start at the top of the hierarchy and move down through it, considering at each stage whether any risk remains and whether further control measures will minimise the risk.
• The hierarchy commences with the Level 1 control measures. They are the measures most likely to eliminate the risk or hazard. Each subsequent level in the hierarchy refers to control measures that are less likely to minimise the likelihood, or the degree, of harm.
• WHS Regulations require specific control measures for some types of risks. These include removal of people from lead risk work, fall arrest systems, guarding on equipment, and instruction and training.
• Codes of practice also include detailed information about control measures that may be applied to specific hazards. While we are not obliged to comply with codes of practice, we are expected to identify and consider this information. A court may have regard to a code of practice approved under the WHS Act as evidence of what is known about a hazard or risk, associated risk assessments and control measures. They may rely on the code to determine what is reasonably practicable in circumstances to which the code relates.
• There are numerous other sources from which HWH may obtain information on control measures, for example:
  • the regulator
  • reputable technical standards, such as those published by Standards Australia
  • industry publications, and
  • published scientific and technical literature.

• Our investigations and inquiries may identify many ways to eliminate or minimise a particular type of risk. Some of these may, however, not be available to HWH or may not be suitable in the circumstances. eg
  • A device may not have been introduced into the Australian market or may be incompatible with Australian operating conditions.
  • Radio communication to minimise risks from people working in isolation or in remote locations may not be suitable in areas where there is no signal or a poor one.
  • Mechanical lifting aids may not be able to operate in areas where there is insufficient room to move them around.
  • Equipment may not be able to be used in areas where the necessary energy source, such as electricity or gas, is unavailable.
  • Particular processes may not be able to be used if they rely on circumstances, including the behaviour of others, over which the duty holder has no control.
• HWH is only required to do what we can reasonably do at the time and under the circumstances. In determining whether a person has breached a duty, a court will consider the control measures available at the particular time of the activity or event, not those that may have become available.
• It is also important to ensure that a particular risk control system will work before relying on it. In some cases, additional control measures may be needed to minimise the risk so far as is reasonably practicable.

STEP 3 – DETERMINE WHAT WE ARE REASONABLY ABLE TO DO

• The WHS Act requires a PCBU first to eliminate the risk if reasonably practicable. If not, the risk must be minimised as reasonably practicable. The hierarchy of controls in Regulation 36 demonstrates how this process should be managed, as covered earlier in this Guide. 
• After identifying available and suitable control measures, the duty holder should consider whether the control measure that is most likely to eliminate the risk, or minimise it the most, is able to be applied.
• If the control measure that will provide the highest level of protection is possible, a duty holder should implement that control measure, unless it is not reasonably practicable to do so in the particular circumstances.

• Just because something can be done does not mean it is reasonably practicable for us. What is required is an assessment of what a reasonable person in our position would do in the circumstances, taking a careful approach and erring on the side of caution.
• As indicated above, to determine what is reasonably practicable HWH must take into account all relevant matters, including those in S18. Other matters which might be relevant are:
  • our ability to rely on the skill and expertise of others and what is required for that reliance
  • the extent to which each possible control measure or combination of control measures lowers the likelihood or degree of harm
  • the capacity to influence and control a particular activity.
• The aim must be to keep trying to lower the likelihood and degree of harm until further steps are not reasonable. Questions we should ask to identify if we are doing enough are:
  • Is there more we can do to either
    • minimise the risk ourselves, or
    • ensure another party with the relevant skills and expertise can properly implement health and safety measures and minimise risks?
  • If the answer is yes to either of the above, is it reasonable for me not to do so?
• The more likely the risk, the more that is required to be done to eliminate or minimise it. The greater the degree of harm, the more that is required to be done to eliminate or minimise it. If there is at least a moderate likelihood of death or serious injury, then the highest level of protection should be provided. If there is a high likelihood of repeated or multiple injury (even of a low degree such as strains and infections) then a high level of the risk controls should be applied.
• It may not be reasonable to require expensive and time-consuming controls, such as engineering controls, to be applied to minimise or further minimise a low likelihood of minor harm. However, it may be reasonable to apply less expensive controls, such as training and supervision, to further lower the likelihood of the risk.
• When considering each control or combination of controls, we must take into account the likelihood of a particular control is effective. Guards may be removed, systems of work may not be understood and followed, and PPE may not always be worn. Further controls such as signs or supervision, may be needed to make a control more likely to be effective.

• While cost is specified in S18 as a matter to be taken into account and weighed up with other relevant matters to identify what is reasonably practicable, this must only be done after assessing the extent of the risk and the ways of eliminating or minimising it.
• The cost of implementing a particular measure may include the cost of purchase, installation, maintenance and operation of the control measure and any impact on productivity as a result of the introduction of the control measure. 
• A calculation of the cost of implementing a control measure should also take into account any savings it will yield in reductions in incidents, injuries, illnesses and staff turnover, as well as improvements in staff productivity.
• Before determining whether expenditure to eliminate or minimise a risk is reasonably practicable in the circumstances, HWH must consider:
  • the likelihood and degree of harm of the hazard or risk, and
  • the reduction in the likelihood or degree of harm that will result if the control measure is adopted.
• 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.
• If there are several available options for eliminating or minimising a risk and they would achieve the same level of reduction in the likelihood or degree of harm, a duty holder may choose to apply one or more of the least costly options. Using more expensive control measures may not be required to minimise a risk that is low in likelihood or severity of harm.
• It may not be reasonable to require control measures that are expensive to apply in terms of time or money, such as engineering controls, to minimise or further minimise a risk that has a low likelihood of occurring and would cause minor harm. 
• It may however be reasonable to apply less expensive controls, such as training and supervision, to further lower the likelihood of the risk.
• Choosing a low-cost option that provides less protection, simply because it is cheaper, is unlikely to be considered a reasonably practicable means of eliminating or minimising risk.
• Where the cost of implementing control measures is grossly disproportionate to the risk, it may be that implementing them is not reasonably practicable and therefore not required. This does not mean however that the duty holder is excused from doing anything to minimise the risk so far as is reasonably practicable. A less expensive way of minimising the likelihood or degree of harm must instead be used. Example:
  • The cost of engineering changes to equipment will be high and there is only a slight risk of minor sprains. The engineering changes may therefore 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. Each of these measures will lower the likelihood of the risk occurring and may lower the degree of harm that may be suffered.
  • If the degree of harm is significant, for example where death or serious injury is at least moderately likely­­­— then it is unlikely the cost of implementing available and suitable control measures to eliminate or minimise the risk would ever be so disproportionate as to justify not doing so. In these circumstances, it may be reasonable to expect and require a duty holder to eliminate the risk by ceasing the relevant activity if, after all ‘affordable’ control measures have been considered, there remains a significant risk of serious injury or illness.

• What is reasonably practicable is determined objectively, not by reference to HWH's capacity to pay or other circumstances. HWH cannot expose people to a lower level of protection simply because we are in a lesser financial position than another organisation facing the same hazard or risk in similar circumstances. 
• If we cannot afford to implement a control measure that should be implemented after following the weighing up process set out in S18 of the WHS Act, we should not engage in the activity that gives rise to that risk.

• While the duties prescribed by the WHS Act require HWH to ensure certain health and safety outcomes, they do not necessarily require us to provide everything necessary to achieve these outcomes. For example, HWH must ensure the provision of safe equipment but does not need to provide safe equipment itself if someone else is doing so.
• It is common practice for us to engage a specialist or technical expert to carry out work. In these situations, HWH is entitled to rely on the expert's expertise. 
• However, HWH still carries some responsibility for ensuring the requirements of the WHS Act are met. For example, it is still incumbent on us to ensure, so far as they are reasonably able, the specialist or technical expert:
  • does in fact have the required expertise to ensure the work can be carried out safely
  • has in place the systems, processes and procedures to ensure the work can be carried out safely
  • is carrying out the work in a manner that does not create a health and safety risk for our own workers or others at the workplace.
• There may be situations where we have no option other than to rely on someone else.

STEP 4 - REVIEWING RISK CONTROLS

• The duties in the WHS Act and Regulations are ongoing and must be complied with at all times. 
• 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. 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.
• Relevant changes include:
  • a change in a work process
  • a change in the physical environment
  • different people undertaking the work with different skills or means of co-ordination of activities
  • new hazards are identified through advances in science or through experience and
  • new ways to eliminate or minimise risks are identified or invented.
• Therefore, the control measures a duty holder implements must be reviewed regularly to ensure they continue to meet the standard of what is reasonably practicable.

• There are certain times when HWH must review control measures and revise them if necessary. Reviewing a control measure is required under the WHS Regulations:
  • when the control measure is not effective in controlling the risk
  • before a change at the workplace that is likely to give rise to a new or different risk that the control measure may not effectively control
  • if a new hazard or risk is identified
  • if the results of consultation indicate a review is necessary, and
  • if a health and safety representative requests a review.