Duties of business owners/employers and officers

The Work Health and Safety Act 2012 (WHS Act) uses the term ‘person conducting a business or undertaking’ (PCBU) in place of employer. We will use the term ’employer’ for readability.

The bulk of this section is reproduced from the Guide to Work Health and Safety Act 2012.

The WHS Act covers:

• people who carry out work in any capacity for a employer including workers,
• 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 that do not employ anyone.

DUTIES OF EMPLOYERS

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. A duty cannot be transferred to another person. More than one person may have the same duty, and in this situation, each person retains responsibility and must discharge their duty to the extent to which they have the capacity to influence and control the matter, disregarding any attempts to ‘contract out’ of their responsibility.

Example

A labour hire company hires out its employees to host employers to carry out work for them. Both the labour hire company and the host employer owe a duty of care to those employees. In such cases both are fully responsible for meeting that duty to the extent to which they have capacity to influence and control the matter. It is not possible to ‘contract out’ work health and safety duties.

Example

A principal contractor and a subcontractor for construction work must ensure, so far as is reasonably practicable, the provision of adequate facilities for the welfare of the workers carrying out the construction work. This does not mean that both are responsible for providing the facilities. One may provide the facilities with the other duty holder satisfying themselves that their duty is met because the facilities provided by the other duty holder fulfil their obligations.

Duties of an Employer: Primary duty of care (section 19)

All employers must ensure, so far as is reasonably practicable, the health and safety of:

• workers engaged, or caused to be engaged by the employer,
• workers whose activities in carrying out the work are influenced or directed by the employer, 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. Employers 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 their own health and safety while at work, so far as is reasonably practicable.

In detail

Under the primary duty of care an employer 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.
• 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 holders with shared responsibilities must work together to make sure someone does what is needed. This requires consultation, cooperation 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 for the same matter, they must consult, cooperate and coordinate activities, so far as is reasonably practicable, in relation to the matter. Each must share health and safety 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.

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

Duty of Employers with management or control of workplaces

An employer 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 Employers with management or control of fixtures, fittings or plant at workplaces

An employer 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. An employer 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.

DUTIES OF OFFICERS (section 27)

Officers of corporations and other organisations must manage corporate risks — including work health and safety risks. An officer of an employer must exercise due diligence to ensure the employer 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 employer has, and uses, appropriate resources and processes to eliminate or minimise risks to work health and safety.
• ensure the employer has appropriate processes to receive and consider information about work-related incidents, hazards and risks, and to respond in a timely manner.
• ensure the employer has, and implements, processes for complying with its duties and obligations (for example, reports notifiable incidents, consults with workers, complies with notices, provides appropriate training and instruction and ensures health and safety representatives receive training entitlements).
• 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 refer to the interpretative guideline on officers available on the https://www.safeworkaustralia.gov.au/duties-tool at the Work Safe website.