Reasonably Practicable?

admin • March 25, 2025

The Victorian Occupational Health and Safety Act 2004 requires that the employer has a duty to ensure a healthy and safe workplace. This duty must be met as far as reasonably practicable.


But what does this actually mean?


The following must be considered when determining what is reasonably practicable: (according to section 20(2) of The Act):

(a)  The likelihood the hazard or risk concerned eventuating;

(b)  The degree of harm that would result if the hazard eventuated;

(c)  What the person concerned knows, or ought to reasonably know, about the hazard or risk;

(d)  The availability and suitability of ways to eliminate or reduce the hazard or risk;

(e)  The cost of eliminating or reducing the hazard or risk.


This is often an area of confusion – primarily because the test for what is ‘reasonably practicable’ is in fact objective. When we consider this, it is best to look to WorkSafe for guidance.


WorkSafe Victoria provides some clarification in their Position Statement on the matter:

‘a person is to be judged by the standard of behaviour expected of a reasonable person in the duty-holder’s position who is required to comply with the same duty and is:

• Committed to providing the highest level of protection for people against risks to their health and safety.

• Proactive in taking measures to protect the health and safety of people.’

-         WorkSafe position statement - reasonably practicable

 

There must be a weighing up of each of the 5 points listed under section 20(2) of The Act (above), but with a clear presumption in favour of safety. This means that the likelihood of harm occurring, and the seriousness of the potential outcome, must be the most important factor. The cost must be considered to be the least important factor when deciding what is reasonably practicable.


‘If the degree of harm is significant, e.g. death or serious injury is highly likely, then it is extremely unlikely that the cost of eliminating or reducing the risk would ever be so disproportionate to the risk to justify a decision not to implement an available and suitable control measure.’

-          WorkSafe position statement - reasonably practicable

 

When considering what the person concerned should reasonably know about eliminating the hazard, the state of knowledge regarding hazards and controls must be considered and this must be applied in line with the ranking under the hierarchy of control.


The definition of what is ‘reasonably practicable’ is often one which causes some contention. It is important to go back to the WorkSafe position statement to make sure that you are making decisions in line with the intentions of The Act. Of course, it is always required that the highest level of protection from a hazard is provided in order to ensure a safe workplace.


To read more about this:

How WorkSafe applies the law in relation to Reasonably Practicable | WorkSafe Victoria

OHS Prosecution on Pure Risk

By admin • June 17, 2025
The Victorian Occupational Health and Safety Act 2004 is primarily a risk-based law. That is, it requires the prevention of harm. The objects of the Act require that health and safety be secured and that risks to health and safety be eliminated at the source, with the highest level of protection against risks being provided. The employer is legally required to eliminate (as far as reasonably practicable) any risk to health and safety. It follows that the majority of offences under the Act are indeed risk-based offences. This means that a prosecution can occur whether or not the risk has resulted in death or injury. It is enough to have simply exposed a person to the risk of harm. The argument for this is that the OHS Act aims to prevent injury, disease and death at work. So why do we see many prosecutions occurring after the harm has in fact materialised into an injury or death? Perhaps it is due to a public expectation that these horrific incidents should result in some punishment of those responsible? Perhaps it is that the ultimate evidence of the safety failure is now present – providing a compelling argument as to the egregious nature of the risk that was posed by the breach? Perhaps there is motivation to provide general deterrence as a result of these tragic events? It is important to note that the death or injury does not form part of the offence in these prosecutions, rather it forms part of the evidence. But, we do see pure risk prosecutions. The regulator can and does charge on the basis of risk only, before the safety failure has resulted in harm to anyone. This is the ultimate outcome – to prevent . Prosecuting on the basis of risk may be for the purpose of primary prevention, or as the ultimate escalation in a hierarchy of sanctions. It may serve as specific deterrence, to effect change in an individual’s or company’s behaviour. General deterrence is often seen as very important – reinforcing to all duty holders that they are required by law to take a pro-active approach to safety. Here are a few examples of cases of pure-risk prosecutions: $7.5K FINE IN PURE RISK FALLS CASE - OHS Reps $25K FINE IN AHWAZ ROOFING PURE RISK CASE - OHS Reps CONSTRUCTION COMPANY FINED $12K IN ‘PURE RISK’ PROSECUTION - OHS Reps The following Melbourne Law School presentation also makes for some interesting reading on this topic: CELRL-Seminar-21-May.pdf Proceeding to prosecution on the basis of risk represents an alignment between prosecution strategies and the principles of the OHS Act . Certainly, it serves as a reminder that duty holders have a legal requirement to provide the highest level of protection and to prevent harm in the workplace.

Working Alone on Farms

By admin • June 10, 2025
Farm workers are often working alone and in an isolated location where there is no assistance from others and often limited or no communication. Remote or isolated work often includes working alone and outdoors and it may be difficult to get help in an emergency. Access can be long and difficult and there may be limited access to resources. On top of this, there is less access to support networks and communication and technology may be unreliable or absent. All these factors can add to the risk of the work. These unique challenges should all form part of the thinking when working to create a safer workplace for those working on farms. The duty to provide a safe workplace sits with the employer, who has a legal requirement to provide a safe workplace for the workers on the farm. Often the employer may also work on the farm themselves, and the same hazards will pose a risk to them too. Implementing some controls to help reduce the risk of working alone on farms can help ensure that everyone gets home alive and well, including the employer/ farm owner. The control measures will depend on the exact type of work being conducted on the farm, but things to think about may include: Monitoring weather conditions and emergency warnings Ensuring some form of communication is available Providing personal distress beacons Ensuring all personnel have a first aid kit and are trained in how to use it Implementing a buddy system to reduce the time spent working alone Additional training provided to reduce the impact of isolated work Mental health support Farming will usually involve work which is dangerous, including machinery, powerlines, heights, animals, chemicals, and the list goes on. All these risks need to be controlled to a level which is reasonably practicable, but they become more dangerous when the worker is working alone or in an isolated location. Often even the most basic issue is not adequately dealt with – how to call for help? One of the most important issues is to consider is: Is there are reliable means of emergency communication? You must consider how you will know if something has gone wrong and how to locate the person in the case of an emergency. You may like to think about: Is there a check in procedure? Do you have a location system? Do you have a satellite communication or radio if there is no phone signal? Do you have an Emergency Locator Beacon with GPS for use in case of an emergency? If you have mobile coverage, have you considered using Emergency Phone Apps?  For more information on this topic, including on how to develop emergency procedures, take a look at: Working alone on farms | WorkSafe Victoria and Working alone or in remote areas | Safe Work Australia It really is important to take the time to consider the risk of working on farms, especially when alone and in isolation. Not only do we need to do this to fulfil the legal duties under the OHS Act - but most of all, to make sure we all make it home at the end of the day.