The Occupational Health and Safety Act 2004 (Vic) provides for the ability of WorkSafe Victoria to create guidelines which give meaning to aspects of the legislation and provide certainty to duty-holders.
On 30 November 2007 WorkSafe Victoria released two new guidelines, one providing guidance in relation to determining what is ‘reasonably practicable', and the second setting out what the concept of identification and understanding of hazards and risks entails.
Put very simply, the test for what is reasonably practicable is an objective test; that is, 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; and
- Proactive in taking measures to protect the health and safety of people.
The Victorian Occupational Health and Safety Act 2004 sets down in relation to the concept of ensuring health and safety that:
"...regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety:
(a) The likelihood of the hazard or risk concerned eventuating;
(b) The degree of harm that would result if the hazard or risk eventuated;
(c) 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;
(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." (section 20(2))
In determining whether duty holders have done what is reasonable practicable in meeting their obligations, consideration will be given to the circumstances and facts in the case. The guideline does however set out that in weighing up circumstances and facts in a particular case there will be a clear presumption in favour of safety.
The guideline takes recent case law into account in giving further meaning to (a) and to (e) referred to above. Members who would like further information on this guideline are encouraged to read the WorkSafe position available to www.worksafe.vic.gov.au or contact ARA Employee Relations.
The second guideline outlines the steps WorkSafe considers should be taken by a duty holder to identify and understand hazards and risks. In summary, these steps entail:
- Proactively finding hazards before they cause an incident, injury, illness or disease;
- Understanding, within the available state of knowledge, the nature and degree of harm that a hazard or risk may cause, how the harm can eventuate and the likelihood of that harm occurring;
- Reviewing hazards and risks whenever the circumstances in which the hazards or risks exist change; and
- Reviewing hazards and risks whenever there is a change in the state of knowledge about the hazards or risks.
