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Under the Work, Health and Safety Act 2020 (WHS Act) a PCBU has as duty of care to ensure the health and safety of all workers and other PCBUs ‘so far as is reasonably practicable’.
The obligation to ensure safety under the Occupational Safety and Health Act 1984 was expressed as a requirement that persons such as employers, main contractors, self employed persons, or persons having control of the workplace ensure the health and safety of their:
Under the new laws the PCBU must ensure, so far as reasonably practicable, the health and safety of workers:
The new laws expand the duties of those on construction sites, particularly in relation to contractors.
There are two elements to what is ‘reasonably practicable’. First consider what can be done - that is, what is possible in the circumstances for ensuring health and safety. Then consider whether it is reasonable, in the circumstances to do all that is possible.
This means that what can be done should be done unless it is reasonable in the circumstances for the duty-holder to do something less.
When trying to determine what is reasonably practicable you must take into account and weigh up the following factors:
1. What is the likelihood of the hazard or the risk concerned occurring?
The greater the likelihood of a risk eventuating, the greater the significance this will play when weighing up all matters and determining what is reasonably practicable. If harm is more likely to occur, then it may be reasonable to expect more to be done to eliminate or minimise the risk.
2. What is the degree of harm that might result from the hazard or the risk?
The greater the degree of harm that could result the more that may reasonably be expected to eliminate or minimise the risk.
3. What should you know or should you reasonably know about:
In answering this question consider:
For example, information contained in a code of practice could be considered as evidence of what is known about a hazard or risk, the risk assessment(s) or risk control(s).
4. Are there any available and suitable ways to eliminate or minimise the risk, if so what are they?
Ways to eliminate or minimise a hazard or risk are generally regarded as available and suitable if they can be obtained on the open market or if it is feasible to manufacture a way to eliminate or minimise the hazard.
A new work process or changing an existing process to eliminate or control a hazard or risk is regarded as being available if it is feasible to implement such a work process.
5. After assessing the extent of the risk and the available ways of eliminating or minimising the risk, you need to consider the cost associated with eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Please note the words underlined. The consideration of whether the cost is grossly disproportionate to the risk is regardless of the duty holder’s capacity to pay.
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