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Work health and safety (WHS) involves managing risks to your workers’ and workplaces’ health and safety. Safe Work Australia developed model WHS laws in 2011 to harmonise the WHS legislation in Australia. All states and territories in Australia, except for Victoria, have implemented the model WHS laws to place a WHS duty on employers.

As an employer, you have the primary duty of care to ensure the health and safety of your workers. This article explains three categories of duty holders under the model WHS laws:

  1. persons conducting a business or undertaking;
  2. officers; and
  3. workers.

1. Person Conducting a Business or Undertaking (PCBU)

A PCBU is a person conducting a business or undertaking. They can conduct their business alone or with others or can conduct their business for profit or gain. Examples of a PCBU include:

  • a sole trader;
  • a self-employed person;
  • a partner in an unincorporated partnership;
  • a company; or
  • an unincorporated body or association.

A PCBU excludes:

  • volunteer associations; 
  • persons engaged solely as a worker or officer of the business or undertaking; and 
  • elected members of a local authority.

WHS Duty

A PCBU has the primary duty of care to protect the health and safety of workers and other persons in the workplace. The model WHS laws require PCBUs 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. 

Notably, several factors are relevant to determine what is ‘reasonably practicable’ in the circumstances, including:

  • the likelihood of the hazard or risk occurring;
  • the degree of harm that might result from the hazard or risk;
  • knowledge about the hazard or the risk and ways of managing the risk;
  • the availability and suitability of options to eliminate or minimise the risk; and
  • the cost associated with the available options of managing the risk.

A failure to comply with your WHS duties may result in prosecution and liability for penalties. The maximum penalty is currently $3 million for a corporation. Whereas, for an individual, the maximum penalty is $600,000 and 5 years imprisonment. 

For example, suppose you are aware of a faulty water pipe causing water leakage from the ceiling of your office premises. You recognise your workers might slip on the wet floor and injure themselves. Accordingly, you require time to arrange a plumber to repair the water pipe. In this case, a reasonable action would be creating a barrier and placing warning signs around the wet area to minimise the risk of workers and visitors accessing and slipping on the floor.

2. Officers

Officers are typically people who can make decisions that impact the whole or a substantial part of a business (e.g. financial standing). Examples of an officer include:

  • a director or secretary of a corporation;
  • an office holder of an unincorporated association;
  • an officer of the Commonwealth; or
  • an officer of a public authority.

Officers exclude partners in a partnership and elected members of a local authority.

WHS Duty

The model WHS laws require officers of a PCBU to exercise due diligence to ensure that the PCBU complies with their WHS duties. 

An officer can meet their WHS duties by taking reasonable steps to:

  • acquire and keep their WHS knowledge up-to-date;
  • understand the hazards and risks associated with the business;
  • ensure that suitable resources and processes are in place and being used to manage WHS risks; and
  • ensure that appropriate reporting processes are in place and followed for WHS incidents, hazards and risks.

3. Workers

Workers include people who carry out work in any capacity for a PCBU, including work as:

  • an employee;
  • a contractor or subcontractor;
  • an employee of a contractor or subcontractor;
  • an employee or a labour-hire company;
  • an apprentice or trainee;
  • a work experience student; or
  • a volunteer.

WHS Duty

The model WHS laws require workers to:

  • take reasonable care of their health and safety;
  • take reasonable care for the health and safety of others who may be affected by their acts or omissions in the workplace;
  • comply with reasonable instructions given by the PCBU; and
  • cooperate with any reasonable WHS policies or procedures that the PCBU has notified to them.

Therefore, you can provide your workers with a WHS policy outlining their WHS obligations.

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Key Takeaways

PCBUs, officers and workers are duty holders in WHS legislation. A PCBU has the primary duty of care to ensure the health and safety of workers and workplaces. Officers of a PCBU must exercise due diligence to ensure that the PCBU complies with their WHS obligations. Furthermore, a failure to comply with your WHS obligations may result in prosecution and liability for penalties.

If you have questions about your WHS duties or preparing a WHS policy, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Who has a duty under the WHS Act?

Persons conducting a business or undertaking, officers and workers have WHS duties.

What are the WHS duties of a person conducting a business or undertaking (PCBU)?

The model WHS laws require PCBUs 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. 

What are the consequences of failing to meet WHS duties?

A failure to comply with your WHS duties may result in prosecution and liability for penalties. The maximum penalty is currently $3 million for a corporation and $600,000 and 5 years imprisonment for an individual as a PCBU or officer.

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