SFAIRP – What you are being told is probably wrong

I am targeting this article at my Australian audience, if you are reading this in the UK the content may still be relevant, but I have no recent examples to provide context.

Before you read this, think of all the times someone has told you what you need to do in relation to SFAIRP?? "You need to demonstrate this"; "you need to fill in a form a this way"; "we expect it done this way"; and so on. Most, if not all, of this will have been incorrect advice based on people’s own views and personal experience.? Let me explain.

For background, whenever we talk about managing safety, we are talking about the concept of Reasonably Practicable, which comes from a specific legal case “Edwards Vs The National Coal Board 1949” in the UK, find out more here.

The legal test of So Far As Is Reasonably Practicable (SFAIRP) was enshrined into UK legislation in the Health and Safety at Work Act (etc.) 1974 and later adopted across Australia including in the Work Health & Safety Act 2011.?

Both pieces of legislation use very similar working, but I will use the WHSA 2011 example “A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of….”. ?

That’s it, that’s the legal requirement, that is all that the law requires you to do. ?

SFAIRP is a legal test

The truth is that no-one can actually tell you what constitutes a SFAIRP position and what does not, it can only ever be determined retrospectively by a judge and jury as part of a legal proceeding.?

That being said, we do have a lot of case law to guide us—and this, along with established good practice and guidance from the regulators, gives us a very reliable basis for determining what is likely to be acceptable and what is not.

The point here though is that no-one outside of this legal context can actually say to you “it is not SFAIRP”.

There is no legal requirement to document anything

With the exception of some specific pieces of legislation (e.g., hazardous chemicals) and for some specific Duty Holders such as Rail Transport Operators (RTO) there is no legal requirement to document any of your decision making. It is certainly good practice to keep records and I would highly recommend that you do, but it’s not a legal requirement.

Now some of you are reading this and thinking “Andy, you are wrong, Rail Safety National Law (RSNL) requires you to…” but it doesn’t.

RSNL places a duty on Rail Transport Operators (RTOs) to have a management system that records risk assessments, but that duty only applies to RTOs, not designers or other suppliers.? If an RTO has specified a specific process in your contract, then you will have to follow that, but that becomes a contractual compliance issue. It is not a legal duty.

It is all about decision making.

Ensuring safety SFAIRP is a decision by a Duty Holder.? I cannot stress enough that it’s nothing to do with how much paperwork is or isn’t produced, it is the decision by the Duty Holder and the risk assessment process they undertook to inform the decision that is the important factor.?

The simple way to look at the legal test is this: Ask yourself "how did we decide that we had done enough?" If you have a robust answer to that question, then you’re probably meeting your duty.

The higher the risk, the more robust the answer needs to be. There may well be the need to seek specialist advice, undertake detailed risk analysis and options assessment, or even prepare safety cases to inform the Duty Holder’s determination, but these should be done on an ‘as needed’ basis to inform the decision.? They are not needed in every case, particularly for simple and straightforward decisions.

Keep records of your decisions

I always recommend that Duty Holder have a process for recording safety decisions.? These can be in formal governance bodies, workshop minutes, risk registers, or even emails.? If the decision outcomes and who made them is on a formal record that can be retrieved in the future, then you will be able to demonstrate the process by which you undertook your duty.

For higher risk or complex changes, you, or your client, may require that a detailed risk analysis is provided to support the decision.? The amount of effort to do this should be risk-based and reasonable to support the Duty Holder’s SFAIRP determination. Where a detailed risk analysis is done, it is generally documented in risk assessments or safety cases as deemed appropriate as part of the formal record.

“But I don’t like it that way!”

Some people will tell you that you have not “Demonstrated SFAIRP” because they don’t like the way in which you have done it; there is no basis for them to do this.? Ensuring safety SFAIRP is a Legal Test and for most Duty Holders there is no legal requirement to “demonstrate” how you got there.? If you do choose to document the process that informed your decision, then it is up to you how to do that.?

This may sound like semantics, but it is important to understand that when a Client or other party is saying to Duty Holders "you must do this to demonstrate SFAIRP" what they are actually doing is issuing a de-facto instruction to the Duty Holder to do things in a certain way. ?In doing so, they take on some or all of the risk liability for the instruction and more importantly are opening themselves up to claims for additional costs and extensions of time.? See my article on Duty Holders.

Common mistakes

Here are some of the common misconceptions I’ve heard over my ten years in Australia.

“SFARIP and ALARP are different” and “we don’t do ALARP in Australia”. – This is not Correct

The term As Low As Reasonably Practicable (ALARP) was coined by the UK Health and Safety Executive (HSE) and is used widely in Australia too.? Regulators in the UK and Australia have determined that they both require the same legal test and can be used interchangeably.

"We don’t do ‘broadly acceptable’ in Australia". – This is not Correct

This is not the case; however, this can be a very divisive issue largely due to people not fully understanding the context in which it is intended to be used or by not applying it correctly.? Simply put, when a risk is assessed as very low, the test of whether you’ve ‘done enough’ is much easier to meet.? I will re-visit it in detail in another Article.

Clients stating that "we have a different basis for SFAIRP in our organisation" – This is not Correct

Ensuring safety SFAIRP is a legal test, it does not vary between organisations.? If your organisation has a different risk tolerance then you can add that to the contracts with your suppliers, but you can’t use “we do SFAIRP differently” as a basis for getting things from your supplier for free.

Clients stating that "you haven’t demonstrated SFAIRP because of your documentation" – This is not Correct

I regularly see Client’s stating that they cannot accept something a Duty Holder has determined to be safe SFAIRP as it isn’t “Demonstrated” in a way that they like.? As noted above there is no legal requirement to document anything so unless there is a specific requirement in the contract then it’s up to the Duty Holder to determine how they manage it. Any requirement from the Client or Client’s Agent to do something in a way they prefer is a de-facto instruction and basis for a variation.

A Client saying “it can be more SFAIRP” or “achieve a better SFAIRP outcome”. – This is not correct

Safety is either managed SFAIRP or it is not. Requiring anything beyond this is just the Client trying to get things for free.? There are always ways that safety can be improved, but if you have engaged a supplier to provide a solution that manages safety SFAIRP, that’s all you should expect.? Any requirement to go beyond this needs to be paid for and requiring it of a supplier is an instruction and the basis for a variation.

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Key takeaways

Here are my five takeaways, get these right and you will be in a much better position when it comes to understanding the ensuring safety SFAIRP requirement in legislation really means:

1. It is a legal test and no one can actually make a determination outside of the legal framework.
2. It is not about paperwork; it is about the Duty Holder making the decision that there are no more reasonably practicable measures that could reduce the safety risk.
3. For most Duty Holders there is no legal requirement to document or demonstrate anything.? It is good practice to keep a record of decisions and any information used to inform them.
4. Clients can seek Assurance and undertake due diligence to gain justified confidence in their Suppliers’ decisions, but they can only enforce compliance for processes that are in the contract. So, if you want it done in a certain way, put it in the contract so it can be priced and scheduled up front.
5. Suppliers can use this guidance to push back on Clients that are using incorrect SFAIRP claims to instruct how they do things and to try and get things for free.

Both Clients and Suppliers need to be very clear on what is a legal duty and what is a contractual requirement, any requirement to do anything beyond these should be considered a time and cost variation. ?

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