Home' Work Health and Safety : Issue 1 Contents 13
Who is covered?
The duty is to ensure the safety of “workers” who are “at work”. The
relationship between the PCBU and the protected workers does not have
to be a direct contractual relationship, however, at minimum the worker
must have been “caused to be engaged” by the PCBU, or the worker’s work
activities must be “influenced or directed” by the PCBU. The duty extends to:
► contractors engaged by the PCBU and their employees;
► sub-contractors, sub-sub-contractors and their employees; and
The effect of the duty is that employees of contractors at the bottom of the
contract chains may be owed a primary duty by parties above in the chain.
► outworkers at the bottom of a supply chain in the clothing and textile
industry being owed the primary duty by the retailor at the head of the
► a labour hire agency and a host employer owing the primary duty to the
labour hire worker; and
► a franchisor owing a duty to the franchisee, and subsequently any
individuals employed by the franchisee.
So far as is reasonably practicable
The model WHS Act places a duty on those conducting a business
or undertaking to eliminate or minimise risk “so far as is reasonably
practicable”. Reasonably practicable means that which is, or at a particular
time was, reasonably able to be done to ensure health and safety, taking into
account and weighing up all the relevant matters. This includes:10
The likelihood of the hazard or the risk concerned occurring:
► the greater the likelihood of a risk eventuating, the greater the likelihood of
action taken to eliminate or minimise that risk being viewed as reasonably
The degree of harm that might result from the hazard or the risk:
► the greater the degree of harm that may result, the more onerous the
responsibility of the duty-holder to eliminate or minimise that particular
What the person concerned knows, or ought reasonably to know about
the hazard or the risk; and ways of eliminating or minimising the risk:
► a duty-holder can be expected to take reasonable steps to identify
hazards or risks in the workplace by, for example, consulting their workers
and others in the industry, undertaking risk assessments, analysing
previous incidents and considering relevant regulations and Codes of
► the court may have regard to control measures contained in Codes of
Practice as evidence of what is known about a hazard or risk, risk
assessment or risk control, and rely on this to determine what is
reasonably practicable in the circumstances.
► a duty-holder can introduce evidence of compliance with the WHS Act in a
manner that is different from the code but provides a standard of WHS
that is equivalent to or higher than the standard required in the code.
► more generally, organisations should identify as many methods for
minimising risk as possible so the most appropriate can be considered
and applied to the particular circumstances.
The availability and suitability of ways to eliminate or minimise the risk:
► equipment will generally be regarded as available it is provided in the
open market or can be manufactured.
► a method for eliminating a risk will generally be considered to be suitable
if it is effective in eliminating or minimising the likelihood or degree of harm
emanating from a risk, does not introduce new risks and is practical to
implement in the circumstances.
After assessing the extent of the risk and the available ways of
eliminating or minimising the risk, the cost associated with available
ways of eliminating or minimising the risk, including whether the cost
is grossly disproportionate to the risk.
The cost of a method will be relevant when considering the reasonableness
of implementing it. The duty-holder must balance safety and cost, however
only after assessing the extent of the risk and the available ways of
It is not enough to simply declare that a control measure is too expensive.
There is a clear presumption in favour of safety. A more significant cost will
be reasonable to be incurred where there is a higher likelihood and degree
of harm, and the particular method employed in mitigating that risk is highly
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