Health and Safety Committee Refresher Course
Topic 3 What is Reasonably Practicable and Other Legal Principles.
Below you will see a list of the various acts and regulations in each state and territory.
| OHS Act 2004 | VIC |
| WHS Act 2011 | NSW |
| WHS Act 2011 | ACT |
| WHS Act 2011 | NT |
| WHS Act 2011 | QLD |
| WHS Act 2012 | SA |
| WHS Act 2012 | TAS |
| WHS Act 2020 | WA |
So it might seem that there is quite a jungle of safety law out there, but the good news is that principally these laws are all very similar and in some cases they are even the same.
There are certain principles that underpin all Safety Acts. Below are some of the key principles:
First, there is the principle that all workers and other persons are given the highest level of protection against harm from hazards and risks arising from work,
“so far as is reasonably practicable”
So what does this reasonably practicable mean?
Well, the law actually gives us a definition with regards to its meaning as follows:
Reasonably Practicable means taking into account and weighing up all relevant matters including:
| One | The likelihood of the hazard or the risk concerned occurring and |
| Two | The degree of harm that might result from the hazard or the risk, and |
| Three | What the person concerned knows, or ought reasonably to know, about
(i) the hazard or the risk, and |
| Four | The availability and suitability of ways to eliminate or minimise the risk, and |
| Five | 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. |
As far as cost is concerned though, yes cost should not be disproportionate to the risk, but on the other hand, cost will never be a valid excuse to do nothing or not enough.
So if an incident happens, as a minimum, the employer must be able to show that each of these criteria have been addressed to the satisfaction of the regulator or court to prove that they have done everything reasonable and practicable under the circumstances.
Another important principle in the safety law is that duties under the law can not be transferred to another person.
So for instance, a director of an organization has a duty to ensure the organization meets its duties and obligations under the law. So now, lets say, the director hires a safety manager to manage safety. In this case the level of that director’s liability and his/her safety duty continues to be the same compared to the level of liability and duties this director had before before hiring the safety manager. And this applies to any level within the organization.
A person’s safety duty can not be transferred to anyone else either up or downstream.
The next principle is about that multiple persons in the workplace can have a legal duty for, what is called, the same matter.
So for instance, you hire a contractor to do a job for you, that contractor then has a duty to ensure the job is carried out safely. But the organization that has hired the contractor also has that same duty in relation to the job you hired the contractor for.
So in this case, both parties retain responsibility that the job is carried out in a safe manner to the extent that each party has the capacity to influence or control that activity.