‘Reasonably Practicable’ Put to the Test in Recent WHS Case

A case heard in a NSW District Court has highlighted the importance of having documented safe work practices in place in order to prevent the risk of harm. In the case Safework NSW v JBS Australia Pty Ltd [2023] NSWDC 382 the Employer was found guilty of not meeting its duty to ensure the safety of its workers after two hay bales, weighing 700kg each, fell on a worker while they were conducting moisture testing on the newly delivered bales.

The Employer pleaded not guilty to the charge of noncompliance and argued that their duty had been met due to the implementation of a company wide ‘safety system’ and ‘safety induction program’ which was in operation across all their Australian sites. However, when the Court reviewed this evidence, they deemed the broad safety systems insufficient in meeting their duty of compliance under the relevant work health and safety legislation. The implementation of these systems failed to show that the Employer had taken all reasonably practicable steps and measures to prevent identifiable risks.

What is considered reasonably practicable may differ from case to case. Section 18 of Work Health and Safety Act 2011 (ACT) provides what relevant matters will be considered in determining what is reasonably practicable. It includes –

• determining the likelihood of the hazard or risk
• degree of harm as a result of the hazard or risk
• what is known about the risk and ways to eliminate; and
• potential costs associated in available ways to eliminate to minimize the risk.

In the above case the Court found the Employer failed to meet the reasonable test by –

• not undertaking an adequate risk assessment on the specific task being conducted by the employee
• failure to develop, implement and enforce a safe work procedure for the specific task; and
• failure to provide any information, training and instruction to staff who were tasked to perform this task.

It was found by the Court that had the Employer taken the above-mentioned steps, injury to the employee would have been prevented.

The reminder here is to ensure health and safety risks are adequately identified and control measures are developed and implemented which effectively address these risks with training provided to employees on what procedures should be followed. Relying on broad safety inductions or policies will not, as found here, be seen as meeting the reasonably practicable test.

Should you require more information on your obligations under the work health and safety legislation, the Workplace Relations and Legal Team are here to assist you. Please call the team on (02) 6175 5900.