WHS Act primary duty (section 19): what 'reasonably practicable' actually requires

What section 19 requires

Section 19 of the model Work Health and Safety Act outlines the primary duty placed on a person conducting a business or undertaking (PCBU). This duty requires the PCBU to ensure, so far as is reasonably practicable, the health and safety of workers and other persons. This obligation extends beyond employees to include workers engaged or caused to be engaged by the PCBU, those whose activities are influenced or directed by the PCBU, and other persons affected by the conduct of the business or undertaking. WHS notifiable incident timer

The concept of 'health' under this duty encompasses both physical and psychological wellbeing. Therefore, a PCBU’s obligations extend to preventing not only physical harm but also risks to mental health.

The requirement to ensure health and safety "so far as is reasonably practicable" is a key element of this duty and is explored in further detail elsewhere in this article.

What 'reasonably practicable' means

The model WHS Act defines ‘reasonably practicable’ in section 18. Determining what this means involves considering several factors. These include the probability of a hazard or risk occurring, the potential severity of harm, the PCBU’s knowledge and understanding of the hazard and available controls, and the suitability of those controls.

The availability and suitability of ways to eliminate or minimise a hazard are key considerations. While cost is a factor in assessing reasonably practicable, it is not the determining factor. A PCBU cannot refuse to implement a control measure solely on the basis of cost, unless that cost is grossly disproportionate to the risk.

Compliance with the WHS Act is assessed based on what was reasonably known and able to be done at the time the decision was made.

Officer due-diligence duty (section 27)

Section 27 of the model WHS Act places a distinct obligation on officers, such as board members and senior executives who satisfy the legal definition of an officer. This duty requires officers to exercise due diligence to ensure the Person Conducting a Business or Undertaking (PCBU) fulfils its WHS obligations. This is a separate responsibility from the PCBU’s primary duty.

The scope of due diligence for officers is broad. It includes maintaining current knowledge of WHS matters, understanding the nature of the business operations and the hazards and risks involved, and ensuring adequate resources and processes are in place. Officers are also expected to verify that information relating to incidents and risks is received and acted upon, and that processes exist to ensure legal compliance. workplace investigation timer

To satisfy this duty, officers should consider:

• Keeping informed about WHS matters.
• Understanding operational hazards and risks.
• Verifying the provision and use of resources and processes.

Practical implications

Demonstrating that action was ‘reasonably practicable’ involves a practical, step-by-step approach. Risk assessments, and the application of the hierarchy of controls, are key mechanisms for showing this. Employers must consider how to eliminate risks where possible, and if elimination is not reasonably practicable, consider substitution, isolation, engineering controls, and administration, with personal protective equipment as a last resort.

The existence of contemporaneous evidence is crucial. This evidence serves as a record of the assessment process and the controls implemented. Examples of this evidence include risk registers, documentation outlining control measures, records of incidents, training records, and documentation demonstrating consultation with workers.

It is important to recognise that outcomes do not dictate compliance. A workplace incident does not automatically mean a duty was breached, and the absence of incidents does not guarantee that ‘reasonably practicable’ steps have been taken. The focus is on the process of assessment and the actions taken, supported by the available evidence.