Reasonably Practicable is more a hindrance than a help

Possible future OHS conversation between Person Conducting Business or Undertaking (PCBU) and an OHS Inspector or OHS professional looking at a piece of plant:

PCBU: “Look at this machine, it now complies with the work health and safety laws, as far as is reasonably practicable.”
OHS: “Terrific. How did you work out that the plant complies?”
PCBU: “Well we asked around and we reckon this is the best solution.”
OHS: “So did you assess whether anyone could get harmed using this machine?”
PCBU: “Yep”
OHS: “What sort of injury do you think could result from operating this plant?”
PCBU: “Not much”
OHS: “Who told you that the plant now meets all the requirements of the OHS legislation?”
PCBU: “Our workshop manager/neighbour/consultant….”
OHS: “Did they suggest ways for making the plant safe?”
PCBU: “Yep”
OHS: “So why isn’t there a guard around that pinch point?”
PCBU: “Ummmmm, I can’t afford the guard this month but the manager/neighbour/consultant said it’d be alright as long as we put this warning sign up in the meantime. But it’s reasonably practicable, I reckon.”

As the new Work Health and Safety laws become a reality in Australia from January 2012, the line of compliance will expand to create a grey band within which compliance is likely only to be determined by lawyers after an injury has occurred. The flexibility afforded by “as far as is reasonably practicable” (AFAIRP, as some call it) will, in itself, make it difficult for businesses to determine compliance without external help, countering one of the major reasons for the reforms, a reduction of compliance costs.
AFAIRP has a clear set of criteria that needs to be applied when determining compliance. These have been used, in order, in the hypothetical dialogue above.

  • the likelihood of the hazard or risk concerned eventuating;
  • the degree of harm that would result if the hazard or risk eventuated;
  • what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
  • the availability and suitability of ways to eliminate or reduce the  hazard or risk;
  • the cost of eliminating or reducing the hazard or risk.

The AFAIRP process that explains the definition is very useful but, in most States, will be a new and additional process to the well-established 5 (or 6) step Hierarchy of Controls.  In some workplaces all of this safety assessment process will be new and considerable effort will be required to guide PCBUs.

The risk with AFAIRP was always that it becomes the aim instead of a process and this has started to appear in some safety management plans.  PCBUs are reaching a point in their where they are unsure how to proceed, how to make the workplace safer, and are taking that directionless point as having reached AFAIRP.  The AFAIRP criteria listed above is then being retrofitted to justify the position reached.  This stops innovation and progress on hazard control measures.

The example above is a “traditional” plant and engineering one but with the growing need to address psychosocial issues as matters under OHS law, it is impossible to see how AFAIRP could be applied to bullying, for example, and yet this is what the new Work Health and Safety law allows.

The new laws will be challenging for some PCBUs in Australian States and one of the most challenging elements will be to provide PCBUs with the reassurance, the comfort, that their efforts have achieved compliance. “As far as is reasonably practicable” does not provide that reassurance and the uncertainty will taint occupational health and safety for many years to come.

Kevin Jones

Categories business, consultation, guidance, hazards, law, OHS, safety, small business, UncategorizedTags , ,

20 thoughts on “Reasonably Practicable is more a hindrance than a help”

  1. Maybe one of the \”luxuries\” (if you could call it that) of being an independent OHS advisor is that ya have the option of walking if the client is wanting to be a loony. Hasn\’t happened to me yet, but if a client asked me to recommend solutions that the client decided were exclusively practicable to the client – with no objective measure of reasonably practicable – well, I\’d be waving bye bye. No objectivity in working out reasonably practicable just doesn\’t happen if people are even remotely fair dinkum.

    Check out prosecution summaries. Time and time again businesses pinged following a serious injury or fatality almost invariably have discovered a reasonably practicable solution before they lob in court. Cynicism could lead to the conclusion that they will pull all stops to show the Court they aren\’t negligent and want the problem fixed. Another perspective is that the injury or death was the tragic slap in the head that brought them to their senses about what was reasonably practicable.

    1. Col, one of my major criticisms if the harmonization process is that a lot of the legislative detail has been left vague waiting for several years of prosecutions to clarify the legislation. Repeatedly, labor lawyers have said that clarification must wait for the Courts. This position is very unfair on every one who is prosecuted under the new laws for the next few years, and, I think, it is sloppy planing by the lawmakers.

  2. Kevin, I tend rather to agree with Neil (I\’ve been in OHS for over 18 years predominantly under NSW jurisdiction). I took a cycnical view when the new Liberal Governnent jumped so quickly on the \’watering down\’ for employers and removed certain powers of unions without any of the recommended modifications for employee involvement. And at the same time changed the jurisdictions of the courts with regard ot OHS laws.
    In my almost 20 years of experience in OHS, I have generally found that employers wanted the regulator to tell them what to do to fix any given hazard (as you identified – the regualor becomes responsible to establish the standard. This goes against the spirit of Robens (UK) and Williams (NSW) leading to the consultative approach replacing the prescriptive approach.
    They (the less proactive employers) didn\’t want the responsibility, and the associated costs, of working out for themselves what needed to be done – they wanted someone to stipulate it as under the pre-consultative legslative system.
    Now, when any incident happens under AFAIRP, they can sit back and wait until the regulator investigates and identifies what they didn\’t do. And given the limited resources of any regulator – how many reported incidents will go uninvestigated/unprosecuted – inferring that the employer had done enough at least not to get prosecuted.
    Also, I appreciate your sentiments around the WorkCover NSW webinars approach, which is a new development following for their previous roadshow approach – they are well done – if only more senior managers would attend them. But, again in my experience, employers that I have worked for have expected me to go to these things and come back to tell them what they need to do.
    I\’m sorry but I don\’t think I need to attend a roadshow because I keep on top of developments in the OHS law under my own steam. But neither do I get any real access to senior managers to tell them what they need to know about developments in the law – they want me to tell the middle and front line managers what they neeed to do to prevent the senior managers being prosecuted. Who\’s really accepting accountability?
    Every place I\’ve worked as an OHS professional – when I try to book time for education/training that is of a general nature and not directly linked to a specific issue, operation or job role I get told \”we can\’t afford that much time – can you do it in 25-35% of that time\”. Well \”No – it will take as long as I have asked for otherwise I would only have asked for 25-35% of that time.\” (I also have a Cert IV Assessor & Workplace Trainer qualilfication and have done significant hours of teaching and training at both TAFE and University levels).
    And then when I do get time on a specific matter, eg: with front line managers to discuss how to document SWPs using Task Risk Analysis approach, and the Q&A eventually develops to the point that they are realising how complex OHS really is then they cry \’If I knew all this before I wouldn\’t have taken the role\’.
    So all-in-all I can\’t agree with your statement that \”employers are likely to see this as recognition of “the need for increased flexibility to accommodate the safety demands of the modern workplace”, rather I think these employers will see at as a victory that they now won\’t be \’guilty until proven innocent.
    Cheers
    Les

  3. Kevin, you talk of webinars, tens of thousands of small or micro businesses who employ are barely past the abacus level of IT, so I doubt that they would be motivated to watch even if they knew how…………

    Your idea of \”town hall\” meetings has real merit, although knowing small and micro business as I do, I don\’t hold much hope for success in that area unless there is a significant incentive for them to be dragged away from the very very busy tasks of trying to keep their businesses in the black. Maybe if it was packaged with a whole range of business information from government at all levels including access to grants etc etc…………….. You just might get things happening. Include a reality based information kit on how to minimise costly work injuries at little cost to the employer, with the benefit of greater work efficiency and improved profits, that might get a few along. All you have to do is find someone who has written a tried and true information kit that is easily applied, not something based on theory and written by an academic, but something already in place and a real working and successful demonstration that covers the basics of all businesses. (let me know if you know of one)

  4. Hi everybody. Just thought I\’d mention, in case it passed others by, that the Occupational Health and Safety Amendment Act 2011 (No 11 of 2011) received the Royal Assent on Tuesday 7 June 2011 (and commenced on that day.) This means that all the \”general duties\” in NSW are now qualified by the words \”so far as is reasonably practicable\”, and the defence under s 28 which dealt with reasonable practicability has been repealed. This is in effect an \”advance\” on the national uniform legislation (the Work Health and Safety Act 2011) which has also now received the Royal Assent but will not commence until 1 Jan 2012.
    Legalese apart, I think this new change is a \”watering down\” of obligations which, as I mentioned above, sends completely the wrong message to employers.
    Regards
    Neil

    1. Neil, I agree with the \”watering down\” however the employers are likely to see this as recognition of \”the need for increased flexibility to accommodate the safety demands of the modern workplace\”. Either way, the new laws require much greater clarification from the State OHS regulators, particularly the States in which \”reasonably practicable\” is a new or more overt consideration.

      Codes of practice are insufficient to affect the necessary change and it is heartening to see at least one regulator, WorkCover NSW (I think), embarking on a fresh approach with a series of webinars about the new laws.

      With such a regulatory change though, one communication strategy will be insufficient and I think in this circumstance the changes need to be explained with a large number of small roadshows, or what I remember from the olden days as town hall meetings – low tech conversations in a fairly casual atmosphere where safety changes are explained and regulators listen. This can be a risky proposition when politics is involved, as has been seen in the USA, but the benefits of having someone explain safety in the real world context of farming, small business, food manufacturing or any other industry sector can have enormous benefits in not only explaining safety but, more importantly, demystifying safety.

  5. Hi Dave,

    I really belive you have successfully reduced the discussion to a succint statement of the true situation out there. Well done – I agree entirley with your analysis.
    Cheers
    Les

  6. One reader has emailed through this alternative, and cynical, hypothetical dialogue:

    PCBU: Picks up mobile phone and rings a number….
    A Wife: \”Hello, Mrs Smith speaking.\”
    PCBU: \”That\’s Mrs Smith is it? Wife of John Smith at the Morgue.\”
    A Widow: \”No, Wife of John Smith who works at the Ded-Lee Foundry Pty Ltd, and has so for the last 27 years.\”
    PCBU: \”Oh, he did work here. I\’m sorry, but I have to inform you Mrs Smith that this morning John was unfortunately killed in a workshop mishap.\”
    A Widow: \”What do you mean killed in a workshop mishap. My John was always led to believe it was a safe place to work, and John told me he was always given the best protection.\”
    PCBU: \”Ah, yes, well basically that\’s true to an extent. It it is a safe place to work, but sometimes mishaps at work happen. Sometimes with tragic outcomes.\”
    A Widow: \”Well, that\’s not a good enough reason. John\’s workplace has just killed him. How safe is that? How can you be so dismissive?\”
    PCBU: \”Look. We did everything that OHS law requires of us, that was reasonable and practicable. The sad fact is John died in a mishap whilst working.\”
    A Widow: \”No, you allowed him to die at work. You allowed my husband to be taken away from me. You allowed your workplace to be dangerous.\”
    PCBU: \”Well, if that\’s your attitude Mrs Smith then maybe we can sort it out in court between our experts.\”

  7. Leaving aside the reductionist and simplistic comment on what courts will accept as reasonably practicable made in the Kevin\’s original post, the whole issue of compliance only becomes a factor after something has gone wrong and someone\’s in the dock trying to justify what they did or didn\’t do to prevent whatever went wrong from going wrong.

    In normal day to day business those firms that are unaware or ignore legislation will continue to do so, those who see compliance as a target to be achieved will continue to do so and continue to fail, those who seek to make their workplaces as safe as possible will continue to do irrespective of legislated requirements. Unfortunately I think there are far, far fewer in the latter category than in the other categories.

    Legislation begets compliance. Compliance, though, does not beget safer workplaces.

  8. Thanks Les,

    Dogmatic is the correct label, given that I meant an identified and documented hazard that has been left in the too hard basket for what ever reason. It\’s a bit like the road accident scenario of blame, just being being involved provides some percentage of fault., but that I will leave well alone.

    Fear of unemployment I categorise as being afraid to stand up to the employer when confronted with an unsafe environment where the employer is not interested in fixing the hazard and insists the worker continue in the hazardous environment at great risk to the worker and possibly others and of course his/her job (everyday occurrence in thousands of work places)

    You talk about consultation in the work place, which is a wonderful thing where it is practiced. By far the larger number of employers do not carry out that practice. I think you give far too many employers credit for being proactive in safety in their work places, the work injury numbers do not indicate any significant improvement over the decades even when we take into account the significant changes in types of employment (e.g demise of manufacturing).

    As far as employee responsibility for their approach to safety in the workplace, one needs to look at awareness and the need to consider others, attributes not in abundance in general life let alone work life so vigilance by employers who are responsible for providing a safe workplace is paramount along with training signage and all the other things required to try and eliminate idiocy..

    Tens of thousands of small employers see OHSW as an impost and on that basis, consultation is seen as something to left alone unless absolutely forced into doing something -particularly if it is at a cost, sad but true.

    We have far too many shades of Grey in this environment and I am happy to keep the cauldron bubbling away. If I provoke ire and angst all to the good, because we are missing the mark of injury prevention by an immense margin as it stands today and I am happy to rev up comment and discussion at all times.

    Must be \”grumpier old man syndrome\”

  9. I reckon analysis of AFAIRP can be overworked. Stand back and mentally squint at it, and it looks to me like it\’s describing exactly the sort of deliberative process you apply to lots of OHS problems, not because the law says ya have to, but because it\’s logical to include those processes.

    Tony talking about the OHS laws being taken away was a reminder about a clever fella I worked with used to invite people to think about what you would do if there was no OHS law; he\’d do that when faced with strident complaints about OHS law grief. Given the assumption that, in the absence of any OHS laws, people would be suing their employers to oblivion – given that assumption – you would expect there to be at least some motivation to keep stuff safe.

    In the absence of any OHS law, and with bosses keen to avoid getting sued constantly, I don\’t see why we wouldn\’t make sure we have a good understanding of what could or is causing a safety problem, what is gunna be the effects (consequence) if everything goes horribly wrong, what does an objective hunt around for info tell us about solutions that will work in the given situation, and how much is this bugger going to cost to sort out? Sounds pretty close to AFAIRP to me.

    col@finiohs.com

  10. Hi Tony,
    I can\’t say that I agree with your comment on \’find a hazard – fix it\’ in the dogmatic sense that you present it.
    We all know that we live with risk in every aspect of our lives every day. Where we struggle is in our various capacities to correctly assess the LEVEL of risk. This capacity will always be based on knowledge, skill and experience – from crossing the road, needing to judge speed and distance of oncoming traffic to buying takeaway food , needing to recognise poor food storage and handling practices.
    This is the one excellent aspect of Australian OHS legislation – requiring consultation so that we can share knowledge, skill and experience when assessing any given risk. It\’s just a pity that so few PCBUs manage consultation well enough across all the risks they need to assess. It\’s also sad that so few workers bother to consult on a risk assessment before taking shortcuts or omitting to use PPE where it should be used.
    Maybe the move to prosecution following any injury should be based on the details of the consultation – who was involved, what factors were identified and what information was sought/found in relation to existing knowledge – hang on I\’m getting into the reasonably practicable approach here aren\’t I? – and that, to me, makes a lot of sense.
    As to using \’cost\’ as a reason not to proceed, for my money there should be a documented cost benefit analysis attached to the docuemnted risk assessment as grounds for any decision about go or no go. A PCBU would be negligent in their BUSINESS management decisions if they didn;t do that in the first place – whether the risk is rated as a first aid level or a death/permanent impairment level hazard.
    I appreciate your support with the PCBU/Worker accountability but I\’m not sure if you misread my comment re \’fear of unemployment\” – I was intending that it SHOULDN\’T be a barrier OR an excuse for a worker to act in an usafe manner.
    I strongly agree with your comments, re whistleblowing, to idenitfy PCBUs that attempt to force workers to act unsafely or to work in unsafe environments. WorkCover NSW has a compaints line that doesn\’t require idenification of the caller and they claim they investigate all complaints. I\’m just not sure that workers are aware of it, or in some cases would use due to the obvious deduction a PCBU would make as to the origin of the complaint.
    One way to reduce vexacious complaints is for the Regulator to require evidence that the worker has raised the issue with the PCBU in question first – ie evidence of attempt at consultation such as a hazard report or minutes of a committee meeting.

  11. Hazard identified! fix it instantly or disable it. In cases where there is an identified risk to be resolved the \”reasonably practical\” mantra does not wash under any circumstances. More to the point, should the risk not be resolved after identification and a worker is exposed to that risk with injury being the outcome, then the PCBU needs to be called to account by the authorities and severely punished. Commonly called \”assault on the person\” by knowingly allowing a person to injure themselves regardless of signage, which is only a minor mitigation.

    It is my understanding and should be the understanding of all who call themselves safety professionals, that rigorous hazard identification is a requirement in every work place (forlorn hope), on that basis there will be a document trail that has exposed all obvious hazards (more forlorn hope).

    Is there a trade off between cost of remedying a potential hazard and the welfare of a worker where that trade off is contemplated?. Surely if this is the case, then we should not bother with safety law and leave it to the good conscience of the employer to look after the OHSW of his workforce, and throw the whole thing back to the civil and criminal systems to handle. The unions would see their membership sky rocket, The insurance companies would see a huge rise in income protection business, the medical funds would see a massive growth in membership and injured workers just might see some real justice and of course the lawyers, medico legal, safety consultants would all be well rewarded as a consequence.

    I\’m with Les on this argument, workers and employers must accept responsibility for their respective share of the OHSW conundrum, although I do disagree with the concept of fear of unemployment if a worker makes a reasonable approach to an employer after identifying a safety hazard. Surely this is where an entirely safe \”whistle blower\” hot-line hosted by Safework SA and its equivalents elsewhere will be most helpful, by assisting in removing a hazard and targeting Safework\’s inspections where they matter, given they are so under resourced. I should add that any such system requires the identity of the complainant before action is taken to ensure that vexatious claims are avoided.

  12. I think this article once again demonstrates what a misleading and nebulous concept compliance is. The new model act may have exacerbated this problem but it has always been there.

    Consider an organisation that meets all its audit and compliance requirements. Perhaps it is AS4801 or OHSAS 18001 certified meeting all the standards required for an effective Safety Management System. If the employer is self-insured, they will also have to pass the National Audit Standard which imposes an even more onerous set of prescriptions to achieve \”compliance\”.

    Now here\’s the rub.

    Whenever an incident or accident occurs, it is prima facie evidence to a regulator that:
    – the employer failed to provide a safe system of work
    – the employer failed to foresee a preventable risk, and
    – the employer failed to provide adequate training and supervision.

    What will distinguish whether a prosecution proceeds may include:
    – the resources available to the regulator at the time (of 40,000 workers\’ compensation claims occurring in Victoria last year, only 200 resulted in prosecutions)
    – whether the prosecution is in the public interest,
    – whether the prosecution is likely to serve as a warning for others

    So the point is, chasing compliance as an end in itself will do little to protect employers from prosecution.

    The only foolproof method is to focus on not having any injuries at all. Somehow we need to mature away from our obsession with compliance (policies, procedures, paper trails and audits that do little to actually prevent injury) and become more outcomes focused utilising leadership, culture and employee engagement as the primary vehicles for success. The sooner we can move on from harmonisation, the better!!

  13. Thanks for this post, Kevin, in my view it hones in on a very serious issue. Technically under the current NSW law (at least until the Royal Assent is given to the recent amendments) the issue of \”reasonably practicable\” is already relevant as a defence under s 28. But once the onus of proof is shifted, even though it would not make that much legal difference at the end of the trial, as a matter of perception it strikes me that employers are going to adopt the view that sees \”reasonably practicable\” mean \”when I get around to it, if I feel like it, so long as I don\’t have to spend anything\”!
    As a legal issue, under the new WHSA 2011 (when it commences) s 18(e) allows cost to be taken into account but only at the end of the process of considering the risk and ways of dealing with it, and even then the way it is worded implies that cost should only be a factor where \”the cost is grossly disproportionate to the risk\”. The word \”grossly\” means that, as Brett said above, it will be a very rare case where someone\’s life is at stake from a foreseeable hazard, that cost could play any significant role in an ultimate legal determination of whether or not it was \”reasonably\” practicable to deal with the risk.

  14. The concept of reasonabley practicable does apply to life threatening risks, and can be used to demonstrate that a PCBU has discharged it\’s safety obligations even where there have been fatalities – the recent prosecutions in Western Australia following the cyclone George fatalities being a case in point.

  15. Point 5 \”the cost of eliminating or reducing the hazard or risk.\” as far as I know only applies to non life threatening risks. In fact some advice I have heard is that the usual legal calculus does not really apply in this case and the whole \”i can\’t afford it\” argument won\’t fly very well. The argument is that if you can\’t afford to do it safely you can\’t afford to do it.

    If the hazard was only likely to cause a minor first aid injury and the control cost $10,000, and the employer had put it in a plan to have it installed 3 months from now when the budget was approved then it may stand up. If the hazard is likely to cause someone to lose their arm then operating budgets and costs don\’t even come into it.

    Reasonably practicable seems to only be a problem when the regulator asks why you didn\’t repave the entire yard in playground soft foam, buy autonomous robots from Japan and put foam pits at the bottom of every possible fall hazard. These are not reasonably practicable.

  16. Hi Kevin,
    There we have it again – in your last paragraph \”that their efforts have achieved compliance\”.
    Surely we need to move away from the concept of \’achieving compliance\’ (a concept of minimum standard) and move towards making workplaces \’as safe as possible\’ – a step further even than \’as safe as practicable\’.
    My biggest concern with all of the laws and regulations, even in NSW – supposedly the most stringent and onerous on employers (until now), is that those with the power over resources are given \’permission\’ to do the minimum (AFAIRP) to achieve compliance rather than being required to achieve the safest standard possible.
    I know, I\’ve written elsewhere in this blog site, that we live in a commercial reality not a utopia – but surely the commercial reality should recognise that there is both an intangible cost to the community for poor workplace safety along with the actual dollar costs of injuries and illnesses.
    At the same time I also believe it is time for us to start holding EVERYONE accountable for their actions and omissions – workers as well as PCBUs. Workers MUST learn that they MAY NOT undertake a task or use a plant or substance that they have no, or minimal, knowledge of or experience with, and they MAY NOT use a short cut and take unnecessary risks to achieve personal gain in the performance of their work for that cost then to be laid at the door of the PCBU.
    The AFAIRP principle can be applied to both sides of the fence – PCBUs and workers – just as easily to determine level of accountability for an adverse outcome. Yes, I agree PCBUs have more power to expend resources – but until we hold workers accountable for their actions and omissions as well they will continue to be injured or made ill in the face of PCBU shortfalls.
    And now I hear the cries of those who \’fear they will lose their jobs\’ if they refuse to cooperate with a PCBU who directs them to work unsafely – surely it is better to be unemployed in good health and body than to be employed and dead or maimed?
    If we hold workers accountable and every worker starts saying \’no\’ to unsafe directions then PCBUs will be forced to find the safer way forward in order to retain a workforce and stay in business. And if they can\’t afford the safer way they shouldn\’t be allowed to stay in business anyway – why should workers, and the community, continue to pay the costs of \’cowboy\’ PCBUs?

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