"Reasonably practicable": what is the WHS bottom line?
Queensland Teachers' Journal, Vol 126 No 2, 12 March 2021, page no. 21
The first time I read the phrase “reasonably practicable”, I was seriously disheartened. It seemed to function as a “get out of jail” card, allowing an employer to avoid attending to a matter simply “because it is not reasonably practicable to do so”. However, in reality the opposite is true.
Under the Work Health and Safety Act 2011 (Qld) an employer (or “person conducting a business undertaking” as the act describe them) must do what is “reasonably practicable” (i.e. everything in their power) to make a workplace or a system of work, safe.
Safe Work Australia’s “How to determine what is reasonably practicable to meet a health and safety duty” (May 2013) puts it like this: “The standard is intended to be a very high one. This is reflected in one of the objects of the nationally harmonised legislation, where the model legislation 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.”
Section 18 of the WHS Act reiterates this, and states: “In this act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
- the likelihood of the hazard or the risk concerned occurring
- the degree of harm that might result from the hazard or the risk
- what the person concerned knows, or ought reasonably to know, about:
- the hazard or the risk
- ways of eliminating or minimising the risk
- the availability and suitability of ways to eliminate or minimise the risk
- 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 the risk, including whether the cost is grossly disproportionate to the risk.
Note that only after assessing the other matters is cost considered. When determining whether the cost to eliminate or minimise risk is “worth it”, the act states that the cost would need to be “grossly disproportionate to the risk”. When addressing a risk, under the hierarchy of controls it is imperative that active consideration is given to elimination, before moving to less effective controls.
So, when assessing what is reasonably practicable, those assessing the risk must weigh up all relevant matters, with cost to be considered last.
For example, when managing hazards that students and teachers may be exposed to on an excursion, the key consideration would be the qualifications and experience of the teachers. Other considerations would be the activities being engaged in; the number, maturity and other attributes of the cohort, and of particular students (what is known and ought to be known). Such considerations are crucial to informed decision making regarding supervision ratios. Decision-making based on a custom and practice culture of sending x number of teachers to supervise x number of students would not meet the very high “reasonably practicable” standard. While rostering an additional teacher is a cost, the cost for the schools/the department cannot be seen as “grossly disproportionate to the risk”.
COVID-19 demonstrated how the concept of reasonably practicable is applied in the “real world”. Schools were stripped to skeleton face-to-face operations. Money was spent on cleaning common areas/surfaces more frequently. Vulnerable workers were supported to work at home. The employer acted to meet its obligation to provide the “highest level of protection against harm . . . as is reasonably practicable”. The goal was to manage the virus’s spread and its risk to the community. Saying the cost was substantial is an understatement, but in terms of WHS, the actions taken show that the cost was assessed as not “grossly disproportionate to the risk”.
Reasonably practicable has a very high standard, that applies in law, to making judgements when eliminating or minimising risk. The decisions must be informed by s18. Importantly, unless the expenditure is “grossly disproportionate to the risk”, the money should be spent. This can mean rejigging school or central office budgets. A common example is the provision of fencing to ensure schools are separated from the hazards of roads, railway lines or water.