Work Health & Safety Act 2011
The Entity (PCBU) and Person/s in Controls (PCBU) Duty – Primary Duty
‘Ensure…the safety of all workers and others’
The Entity and the person conducting a business or undertaking (PCBU) – (i.e. the person with control of everyday running of the business, which may include Managing Directors and other Managers in some instances), have the primary duty to ‘ensure so far as is reasonably practicable, the safety of all workers and others’.
The definition of worker extends now to incorporate contractors and their workers or subcontractors, volunteers, apprentices, students and the like. You must also ensure the safety of visitors and passers-by.
Company Officers Duty (New) - Due Diligence
Company Officers (as per the ‘Corporations Act’ definition), such as Directors, Partners, Shareholders, Secretaries, Treasurers, CEOs, CFOs etc. have a ‘due diligence’ duty to become informed and kept up-to-date of both operational and behavioral hazards in the business, ensure a flow of information with provisions made for resources and funding as required for workplace safety and make sure that the PCBU meets its duties.
A person can hold more than 1 duty (concurrent) for example, be an Officer and a PCBU and persons can hold the same duty for example, 2 x PCBUs on a project (joint and several).
In all cases, you must meet your duty/duties to the extent required by the Act and in the ways stated in the Regulation.
These Duties apply regardless of:
your business activities,
how many workers/contractors you have,
where they work or
what type of work they undertake
The consulting services we provide as outlined below, are recommended to assist you to fully meet the Duties as PCBU and Officer by way of professional external consultant and due diligence can be evidenced by way of ongoing reporting and recording.
You cannot contract out of these duties/obligations.
You cannot purchase Insurance to cover breaches of the safety legislation. In fact a breach of the Law will generally determine all of your Insurances held, as null and void.
Codes of Practice can now be used against you in a Court, as a way you could have managed a risk and didn’t. There are now some 26 or more which may relate to your business.
Workers Duty – ‘take reasonable care’
Workers have a duty to take ‘reasonable care’, follow instructions given to them in relation to work procedures and wear all personal protective gear provided it fits well, is in good condition and they have been trained in its use.
They must notify of incidents/injuries and hazards as soon as practicable and they are not to willfully injure themselves or others.
Workers do have the duty to ‘take reasonable care’ however a PCBU must first demonstrate they have provided a safe place of work, safe systems of work and evidence of training, instruction, supervision and competency assessment with sign-off.
A failure of a worker to discharge this duty is a breach also and penalties apply.
A failure to properly discharge your ‘duty’ is automatically a breach. Even if no incident/injury, you can be prosecuted.
The entity can be prosecuted as well as individuals.
Fines have tripled to $3M for recklessness, jail term increased by 2 years to 5 years and personal liability more clearly defined by new duties. See table following:
Categories are based on degree of ‘culpability’ and risk/degree of harm.
Category 1 – Recklessness, known hazard, without reasonable excuse
5 yrs jail
Category 2 – Failure to discharge duty which exposes person to death, serious injury/illness
Category 3 - Failure to discharge duty (without risk of death/serious illness), no injury required
Legal and investigative costs are applied in addition to the fine.
Penalties may also include:
Improvement/Prohibition to Operate Notices and/or,
seizure of equipment,
public notices and
Enforceable undertakings to donate, advertise lessons learnt and spend certain amount of money on safety consulting and other initiatives.
What you must do:
The WHS Act - Div 2 S19 (3) states the ‘ways’ in which you must discharge your duty.
If you don’t you are automatically in breach and you can only ‘ensure safety’ by evidence of an overall and ongoing Safety Program that implements the following:-
PCBU must ensure, so far as is reasonably practicable –
the provision and maintenance of a work environment without risks to health and safety; and
the provision and maintenance of safe plant and structures; and
the provision and maintenance of safe systems of work; and
the safe use, handling and storage of plant, structures and substances; and
the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
The discharge of the Obligation in these ways is required on an ongoing basis.
Therefore, you must do all you can do to prevent/eliminate hazards/risks in the ways stated, using the ‘hierarchy of control’ from the legislation, to prevent injury and illness in the workplace, unless the cost is grossly disproportionate to the risk.
In Summary you should:
Identify, assess & control hazards (formally & in an informal, ongoing manner)
Implement appropriate controls using the ‘hierarchy’ in the legislation
Monitor and review those controls
Provide a safe place of work,
Provide safe systems of work,
Provide safe plant & equipment
Provide safe storage and use of hazardous substances, plant & structures
Provide training, instruction & supervision of all workers (including on-the-job training & competency assessment)
Ensure consultation & communication regarding workplace safety
Ensure Consultation, Cooperation & Coordination with other duty holders
1. Reasonably practicable means:-
Consideration for likelihood of harm and the consequences, to determine the level of risk and do what is possible (i.e. meet a standard or behaviour expected of a reasonable person) and consider whether it is reasonable in the circumstances, unless the cost is grossly disproportionate to the risk or; it is reasonable to do less
2. Due Diligence means:-
Ensure PCBU complies with duties, take reasonable steps to acquire and keep up-to-date knowledge of WHS matters - includes behavioural hazards and health monitoring (psychological), gain understanding of the nature of the operations and ensure and verify PCBU has available for use, and uses, appropriate resources and processes to:
eliminate or minimise risks
receive & consider information regarding incidents, hazards, risks - responds in a timely way
has, and implements, processes for complying with duty
Exercise of due diligence must be proactive and reactive, must act immediately, use a systematic approach including ongoing improvement, monitoring and review.
3. Reasonable Care means:-
take ‘reasonable care’ for own health & safety and ensure do not affect that of others
comply with any reasonable WHS instructions from the PCBU in relation to health & safety
co-operate with any reasonable policy or procedure that has been notified