Model WHS Duties

All “the text” below is from The Guide – please see the Disclaimer and Copyright Statement. I have edited the text to remove some non-essential material.

This section is key to understanding WHS duties and it is well worth reading!

General Principles (sections 13-17)

The WHS Act sets out work health and safety duties for PCBUs, officers, unincorporated associations, government departments and public authorities including municipal governments, workers and other people at a workplace.

Coverage

The WHS Act covers:

  • People who carry out work in any capacity for a person conducting a business or undertaking including employees, contractors, subcontractors, self-employed persons, outworkers, apprentices and trainees, work experience students and volunteers who carry out work.
  • Other people at a workplace like visitors and customers at a workplace.

The WHS Act does not cover ‘volunteer associations’ who do not employ anyone.”

The Safety Artisan will post about the rules for volunteers and volunteer associations in due course. See also “Section 34” at the bottom of this page.

Multiple and Shared Duties (sections 14-16)

A person may have more than one duty. For example the working director of a company has duties as an officer of the company and also as a worker.

More than one person may have the same duty. A duty cannot be transferred to another person.

If more than one person has a duty for the same matter each person retains responsibility and must discharge their duty to the extent to which the person has the capacity to influence and control the matter—disregarding any attempts to ‘contract out’ of their responsibility.”

Primary Duty of Care (section 19)

The WHS Act requires all PCBUs to ensure, so far as is reasonably practicable, the health and safety of:

  • workers engaged, or caused to be engaged by the person, and
  • workers whose activities in carrying out the work are influenced or directed by the person,

while workers are at work in the business or undertaking.

This primary duty of care requires duty holders to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.

PCBUs owe a similar duty of care to other people who may be at risk from work carried out by the business or undertaking.

A self-employed person must ensure his or her own health and safety while at work, so far as is reasonably practicable.”

Primary Duty of Care, ‘Upstream’ Duties and Duties of ‘Officers’, Workers and other persons (sections 19-28)

Under the primary duty of care a PCBU must ensure, so far as is reasonably practicable:

  • the provision and maintenance of a working environment that is safe and without risks to health, including safe access to and exit from the workplace
  • the provision and maintenance of plant, structure and systems of work that are safe and do not pose health risks (for example providing effective guards on machines and regulating the pace and frequency of work)
  • the safe use, handling, storage and transport of plant, structure and substances (for example toxic chemicals, dusts and fibres)
  • the provision of adequate facilities for the welfare of workers at work (for example access to washrooms, lockers and dining areas)
  • the provision of information, instruction, training or supervision to workers needed for them to work without risks to their health and safety and that of others around them
  • that the health of workers and the conditions of the workplace are monitored to prevent injury or illness arising out of the conduct of the business or undertaking, and
  • the maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.”

Duty to consult, cooperate and coordinate (sections 46-49)

DUTY TO CONSULT WITH OTHER DUTY HOLDERS

The WHS laws require duty holders with shared responsibilities to work together to make sure someone does what is needed. This requires consultation, co-operation and coordination between duty holders.

For example there may be a number of different duty holders involved in influencing how work is carried out (that is suppliers, contractors and building owners). If more than one person has a health and safety duty in relation to the same matter, they must consult, co-operate and coordinate activities so far as is reasonably practicable, in relation to the matter. Each must share health and safety-related information in a timely manner and cooperate to meet their shared health and safety obligations.

The duty to ‘consult’ does not require agreement, although each duty holder retains responsibility for discharging their health and safety duty.

DUTY TO CONSULT WORKERS AND THEIR REPRESENTATIVES

Each PCBU must, so far as is reasonably practicable, consult with workers and HSRs (if any) about matters that directly affect them. This duty extends to consulting with all kinds of workers not just the PCBU’s own employees, including any contractors and their workers, employees of labour hire companies, students on work experience, apprentices and trainees.”

I wasn’t going to include the next bit, as it seemed to refer OH&S only, but there are two important points in the final paragraph!

Duty of PCBUs with management or control of workplaces

A PCBU with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace and anything arising from the workplace does not put at risk the health or safety of any person.

Duty of PCBUs with management or control of fixtures, fittings or plant at workplaces

A PCBU with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant do not put at risk the health and safety of any person.

A PCBU that installs, erects or commissions plant or structures must ensure all workplace activity relating to the plant or structure including its decommissioning or dismantling is, so far as is reasonably practicable, without risks to health and safety.

I’ve added emphasis here because these requirements show the cradle-to-grave responsibilities of PCBUs. Specifically, if you cause plant or structures to be built, then you have responsibilities for their safe retirement.

Duty of Officers (section 27)

Officers of corporations and other organisations must manage corporate risks—including work health and safety risks. Under the WHS Act an officer of a PCBU must exercise due diligence to ensure the PCBU complies with its health and safety duties. This duty relates to the strategic, structural, policy and key resourcing decisions—that is, how the place is run.

Due diligence includes taking reasonable steps to:

  • acquire and keep up to date knowledge on work health and safety matters
  • understand the nature and operations of the work and associated hazards and risks
  • ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks to work health and safety
  • ensure the PCBU has appropriate processes to receive and consider information about work-related incidents, hazards and risks, and to respond in a timely manner
  • ensure the PCBU has, and implements, processes for complying with their duties and obligations (for example reports notifiable incidents, consults with workers, complies with notices, provides appropriate training and instruction and ensures HSRs receive training entitlements), and
  • verify the provision and use of the relevant resources and processes.

An officer may be charged with an offence under the WHS Act whether or not the PCBU has been convicted or found guilty of an offence under the Act.

For further information on officers please refer to the interpretative guideline on officers available at www.safeworkaustralia.gov.au.

Volunteers (section 34)

Volunteers that owe duties under the WHS laws cannot be prosecuted except in relation to their worker’s duty.

Safety Artisan Instructional Videos cover most of these Topics – follow the ‘WHS Page’ Link, below:

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Author: Simon Di Nucci

Hi everyone, I'm Simon and I have been a system safety engineer for over twenty years. For my full bio, please see my LinkedIn page.

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