“Reasonably Practicable” and Control

Weekly WHS Article 29nd September 2022

Sections 19 to 26 of the WHS Act 2011 require a PCBU to ensure “so far as is reasonably practicable” the health and safety of its workers, customers, visitors, and themselves if they are a self-employed person. Responsibility extends beyond people at the place of work to the physical workplace itself. A PCBU cannot contract out or transfer these responsibilities to others. WHS duties are not transferable.

The WHS Regulation 2017 also has requirements for meeting the standard of “reasonably practicable.” The Regulation addresses specific hazards and risk possibilities such as the facilities in the workplace, people performing hazardous manual tasks, working in confined spaces, working at heights, and electrical hazards, to name a few.

“Relevant Matters”

Section 18 of the WHS Act establishes how “reasonably practicable” is determined and lists 5 “relevant matters” “that must always be taken into account and weighed up” (see ref 1).

Ahead of these a WHS duty holder has two governing principles to consider: what can be done about the matter, and whether what can be done is reasonable in the circumstances. The descriptions of the relevant matters listed in Section 18 of the WHS Act relate to both, or either of these two principles. Additional industry-specific legislation may add to or limit what a PCBU can do.

Implications of Control

The definition of “reasonably practicable” does not explicitly cover to what degree a PCBU had control over people, actions, and events. This would be a matter for investigation.

In health and safety legal proceedings the Courts want to determine whether the actions or inactions of the duty holder were “reasonably practicable”, and whether they had capacity to exercise influence and control over a “relevant matter” (see ref 2).

It may be that the person had the capacity to exercise control over a matter for which they were duty-bound under WHS law yet did not exercise that control. It may have been possible for a person to take over or redirect an operation or project from a sub-contractor or manager who was putting people at risk or not following the control measures of the WHS management system, yet they did not do so. A WHS duty holder is expected to comply with their duties. Their control over the work is an implied element that courts consider when determining what is “reasonably practicable.”

In a situation where there was an inability to control relevant matters it may be that the duty holder did not actually have the authority or control as expected. Lack of control may be attributed to the WHS management system having deficiencies in the first place and therefore an absence of robust systems, procedures, communications, or control measures therefore reducing the duty holder’s capacity to influence and control relevant matters. The person may not have had enough authority to intervene.

If a duty holder maintains that they were unable to control relevant matters it would imply that it was not possible for the duty holder to do something, or it was not reasonable to expect them to do something.

Court Cases

Court cases in Australia take into consideration that control is implicit in identifying what is reasonably practicable. Did the duty holder have control? Did the duty holder have control but not exercise it? Was control not possible? Was control not reasonable?

The judge needs to hear a case fully before making a judgment or decision. To what degree the person responsible had control of the incident or matter is one of the factors the court must consider to determine whether what was done or not done was “reasonably practicable (ref 3).”

Note:

Ref 1: page 2, Interpretive Guideline – The Meaning of ‘Reasonably Practicable’, Safe Work Australia

Ref 2. page 7, 2.5 The relevance of control, How to Determine What is Reasonably Practicable to Meet a Health and Safety Duty, Safe Work Australia

Ref 3: page 7, 2.4 What is ‘reasonably practicable’ is an objective test, and page 8, Control has been considered by the courts as a relevant factor, How to Determine What is Reasonably Practicable to Meet a Health and Safety Duty, Safe Work Australia