In Short
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As a PCBU, you have a primary duty to ensure the health and safety of workers.
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A risk management process helps determine what is reasonably practicable to reduce workplace hazards.
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A workplace is any location where work is carried out, including offices, homes, and construction sites.
Tips for Businesses
Ensure your business complies with WHS laws by implementing a risk management process to identify hazards, assess risks, and put control measures in place. Regularly review these measures to maintain a safe workplace and avoid legal consequences. Also, consider the practical aspects of managing risks, such as cost, environment, and staff needs.
A PCBU is a ‘person conducting a business or undertaking’, whether alone or with others, and whether or not it is for profit or gain. If you are a PCBU, you have a primary duty under Australia’s work health and safety (WHS) laws to do what is reasonably practicable to ensure the health and safety of workers and others in the workplace.
Examples of a PCBU include a(n):
- sole trader;
- self-employed person;
- partner in an unincorporated partnership;
- company; or
- unincorporated body or association.
To help understand your obligations as a PCBU, this article explains:
- your primary duty;
- how to determine what is reasonably practicable; and
- the definition of a workplace.
What Is the Primary Duty?
You have the primary duty of care to protect the health and safety of workers and others in the workplace.
Indeed, the model WHS laws require you to ensure, so far as is reasonably practicable, the:
- provision and maintenance of a safe workplace (including safe plant and structures and systems of work);
- safe use, handling and storage of plants, structures and substances;
- provision of adequate and accessible facilities for the welfare of workers;
- provision of information, training, instruction and supervision necessary to maintain a healthy and safe workplace; and
- monitoring of the health of workers and conditions at the workplace.
Furthermore, the model WHS regulations provide more detailed requirements regarding your primary duty of care. This includes:
- providing and maintaining adequate and accessible facilities (e.g. toilets, drinking water, washing and eating facilities);
- providing first aid equipment and facilities;
- preparing, maintaining and implementing emergency plans;
- complying with requirements for the use of personal protective equipment;
- managing risks associated with remote or isolated work; and
- managing risks from airborne contaminants, hazardous atmospheres, falling objects and storage of dangerous substances.
What Is Reasonably Practicable?
A PCBU’s duty to do what is ‘reasonably practicable’ means that a small business would need to take different steps to a large corporation to ensure a safe working environment.
A risk management process involves:
- identifying hazards;
- assessing risks associated with the hazards;
- implementing and maintaining effective control measures to eliminate or minimise the risks; and
- reviewing the effectiveness of the control measures.
The following section explores relevant factors to determine what is reasonably practicable in the circumstances. Safe Work Australia provides explanations of the relevant factors.
Likelihood of the Risk Occurring
The greater the likelihood of a risk occurring, the greater the significance this will play when weighing up all matters. From there, you can better determine what is reasonably practicable. Therefore, if harm is more likely to occur, it may be reasonable to expect more action from you.
Degree of Resulting Harm
Importantly, the greater the degree of resulting harm from the hazard or risk, the more significant this factor will be. Therefore, take this into account when identifying what is reasonably practicable in the circumstances. Clearly, more would be expected by you, as a duty-holder, to eliminate or minimise the risk of death or serious injury.
What One Knows or Ought to Reasonably Know
Another key question is what you know or ought to reasonably know about the hazard or risk. Likewise, what do you know about ways to eliminate or minimise the risk? To understand the phrase, ‘ought to reasonably know,’ the courts will look to the knowledge of a reasonable person (i.e. one within the same industry). From there, they will determine what you would be expected to know.
Availability of Ways to Eliminate Risk
Additionally, it is relevant to consider the availability and suitability of eliminating or minimising the risk. This requires consideration of what is available and what is suitable for the elimination or minimisation of risk. For example, a risk control that may be effective in some circumstances or environments but not in others.
Likewise, in determining what is most appropriate, consider factors like:
- your workplace layout;
- the skills of relevant workers; or
- the industry your business operates in and the nature of some inherent risks.
Cost to Eliminate Risk
Generally, the cost of eliminating or minimising risk is relevant in determining what is reasonably practicable. Although, there is a clear presumption in favour of safety ahead of cost.
Also, you must only take the cost of eliminating or minimising risk into account after identifying the:
- extent of the risk;
- likelihood and degree of harm; and
- available ways of eliminating or minimising the risk.
Additionally, the costs of implementing a particular control may include purchasing, installing, maintaining and operating the control measure. Consequently, these costs may impact productivity as a result of the introduction of the control measure.
Likewise, when calculating the costs of implementing a control measure, consider:
- potential savings from fewer incidents, injuries and illnesses;
- potentially improved productivity; and
- reduced staff turnover.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
What Is a Workplace?
Notably, as a PCBU, your primary duty extends to ensuring the health and safety of workers within the workplace. Indeed, a workplace is a place where work is carried out for a business or undertaking. Therefore, it includes any place where a worker goes, or is likely to be, while at work. For example, workplaces include:
- offices;
- homes;
- shops;
- factories;
- construction sites;
- vehicles;
- ships; or
- aircraft.
Key Takeaways
As a PCBU, you have the primary duty to do what is reasonably practicable to protect the health and safety of workers and other persons in the workplace. Therefore, undertaking a risk management process can help you determine what is reasonably practicable in the circumstances.
If you have any questions about your WHS duties, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.
Frequently Asked Questions
A PCBU has the primary duty to protect the health and safety of workers and other persons in the workplace, so far as is reasonably practicable.
Several factors are relevant to determine what is reasonably practicable in the circumstances. For example, the likelihood of the hazard or risk occurring, and the resulting degree of harm. Therefore, you should consider how much knowledge the duty-holder possesses about the risk and ways of managing it. Furthermore, consider the availability and suitability of options to eliminate or minimise the risk. Finally, assess the cost associated with the available options of managing the risk.
A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
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