Legal Duties – Work Health & Safety Act 2011

The Entity 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 the 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 PCBU must provide:

  • safe places of work
  • safe systems of work
  • training, instruction and supervision and
  • consult with workers

The definition of ‘worker’ now extends to incorporate contractors and their workers or subcontractors, volunteers, apprentices, students and the like. You must also ensure the safety of others (visitors and passers-by).

Company Officers Duty – ‘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 behavioural hazards in the business;
  • ensure a flow of information;
  • ensure provisions are made for resources and funding as required for workplace safety and;
  • ensure that the PCBU meets its duties.

You may also be found personally liable! (personal prosecution/fines/imprisonment)

Several 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 assist you to properly meet the Duties as PCBU and Officer, by way of professional advice and implementation of a tailored safety program and due diligence can be evidenced by way of ongoing, practical 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.

Penalties

A failure to properly discharge your ‘duty’ is automatically a breach. Even if no incident/injury occurs, you can be prosecuted. The entity can be prosecuted as well as individuals.

Fines are up to $3M for recklessness, jail term up to 5 years and personal liability is clearly defined by duties. See table following:
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 community and Industry initiatives.

What the PCBU 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 –

  1. the provision and maintenance of a work environment without risks to health and safety; and
  2. the provision and maintenance of safe plant and structures; and
  3. the provision and maintenance of safe systems of work; and
  4. the safe use, handling and storage of plant, structures and substances; and
  5. 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
  6. 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
  7. 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.