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?”
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?”
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.