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WTR

Breaking down the HSW Act: The Primary Duty of Care and What is Reasonably Practicable.

26 October 2016

Breaking down the HSW Act: The Primary Duty of Care and What is Reasonably Practicable.

A Persons Conducting a Business or Undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of:

  • Workers in the PCBU
  • Workers whose work is influenced or directed by the PCBU
  • Other persons affected by the work being performed.


This requires PCBU's, so far as is reasonably practicable to:

  • Provide and maintain a work environment, plant and systems of work that are without risks to health and safety
  • Ensure the safe use, handling and storage of plant, structures and substances
  • Provide adequate facilities at work for the welfare of workers, including ensuring access to those facilities
  • Provide information, training, instruction or supervision necessary to protect workers and others from risks to their health and safety
  • Monitor the health of workers and the conditions at the workplace for the purpose of preventing illness or injury.

A PCBU who manages or controls:

Specific duties

a workplace

must ensure, so far as is reasonably practicable, that the workplace, the entry and exit to the workplace and anything arising from the workplace do not put anyone's health and safety at risk

the fixtures, fittings or plant at workplaces

must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant do not put anyone's health and safety at risk

A PCBU who provides accommodation (for the purposes of the job, which is owned or under the control of the PCBU, and where no other accommodation is reasonably available)

must ensure that accommodation is maintained so that it won't expose the worker to any health and safety risks 

 

A PCBU who provides accommodation (for the purposes of the job, which is owned or under the control of the PCBU, and where no other accommodation is reasonably available) must ensure that accommodation is maintained so that it won't expose the worker to any health and safety risks.

A PCBU who is a self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

The Act is clear the PCBU owes no duties to anyone at the workplace for an unlawful purpose, e.g. to trespassers.

But what does reasonably practicable mean?

According to the HSW Act 2015 s.22, unless the context otherwise requires, reasonably practicable, in relation to a duty of a PCBU set out in subpart 2 of Part 2, 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-
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or risk; and
(c) what the person concerned knows, or ought reasonably to know, about-
(i) the hazard or risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) 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.

PCBUs must do what is reasonably practicable to meet their duties to ensure health and safety taking into account and weighing up all relevant matters. These matters include the likelihood of the hazard or risk occurring, the degree of harm that might result from the risk or hazard, and what is known or would be reasonably expected to be known about a risk or hazard, and how to eliminate or minimise the risk. In doing this, you should think about the extent of the risk and the available ways of eliminating or minimising the risk, and finally, weigh up the cost of this and whether the cost is grossly disproportionate to the risk.

The list of priorities suggests costs and resourcing are less acceptable, or practicable, reasons for not controlling a hazard and its risks. 

Managing risk 
The duties to ensure health and safety require the duty holder to manage risk through eliminating or minimising the risk, so far as is reasonably practicable in the circumstances. Some of the PCBU duties require the PCBU to ensure something is without risk, or that health and safety is not put at risk.
These duties should be looked at together with the duty to manage risk.
This doesn't mean that the duty of care requires that all risks must always be eliminated. In some cases it will be reasonably practicable to eliminate risk, but in others it will not. If that's the case, then the risk must be minimised, so far as reasonably practicable.
Depending on the circumstances and the risk, minimisation may include isolating the risk, coming up with engineering solutions, adapting work methods and procedures, or providing personal protective equipment.

The HSW Act is clear that a duty holder's obligations to manage risk are limited to doing what is in their ability to control and manage, along with what is reasonably practicable for them to do to manage the risk.