WHS Series –
What are the H&S duties owed by each type of duty holder?

Health & safety duties (H&S duties) are owed by everyone in the workplace.

This guide explains which H&S duty (or duties) apply to each type of duty holder.

If you are unsure about which type of duty holder you are, please go to the second guide in this six-part series (WHS Series – Who owes a H&S duty? Everyone!).

The contents of this guide are for information purposes only and should not be treated as being legal advice.

The H&S duties

– of a PCBU

A PCBU holds what is known as a ‘primary’ H&S duty as well as other related H&S duties. These are the duties to which the risk management principles and processes apply.

The PCBU’s primary duty¹

A PCBU’s primary duty is split into two different types:

  • the first is to ‘ensure, so far as is reasonably practicable’:

    • the health and safety of ‘workers’, and

    • ‘his or her own’ health & safety.

  • the second – relates to various types of risks within the workplace.

Primary duty type #1 – to ensure the health & safety of…

Workers

Here, the PCBU must “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 work are influenced or directed by the person,

while the workers are at work in the business or undertaking”.

Themself

This duty applies to those PCBUs who are self-employed.

They must ‘ensure, so far as is reasonably practicable, his or her own health and safety while at work’.

Primary duty type #2 – other types of risks

The other duties contained in the PCBU’s primary duty are to ensure, so far as is reasonably practicable:

  • That the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

  • The provision and maintenance of:

    • a work environment without risks to health and safety,

    • safe plant and structures, and

    • safe systems of work.

  • The safe use, handling, and storage of:

    • plant,

    • structures, and

    • substances.

  • 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

    • 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.

  • 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.

  • Maintain premises occupied by a worker so the worker is not exposed to risks of health & safety.

The PCBU’s other duties²

Apart from the PCBU’s primary duty of care, a PCBU owes two other types of duties:

  • One relating to management and control – of:

    • workplaces, and

    • fixtures, fittings or plant at workplaces

  • The other (known as ‘upstream duties’) – where the PCBU conducts a business or undertaking:

    • in relation to plant, substances or structures, whether as a:

      • designer,

      • manufacturer,

      • importer, or

      • supplier, and

    • in relation to plant and structures – installing, constructing or commissioning them.

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²Sections 20-26 of the WHS Act 2011.

The H&S duty – of an ‘officer’

An officer of a PCBU must exercise due diligence to ensure the PCBU complies with its obligations under WHS laws³.

‘Due diligence’ is defined⁴ as including taking reasonable steps to:

  • acquire and keep up-to-date knowledge of WHS matters,

  • gain an understanding of:

    • the nature of the operations of the business or undertaking of the PCBU, and

    • generally of the hazards and risks associated with those operations,

  • ensure that the PCBU:

    • has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking,

    • has appropriate processes for

      • receiving and considering information regarding incidents, hazards and risks, and

      • responding in a timely way to that information,

    • has and implements, processes for complying with any duty or obligation of the PCBU under the WHS Act 2011⁵, and

  • verify the provision and use of those resources and processes (as referred to in the above dot point).

Officers need to take their responsibilities very seriously because not only do penalties apply if the officer does not comply with this duty, but in some instances, officers may be penalized in the same way as a PCBU.

Also, not only does a PCBU have to consult with workers, but all duty holders who owe a duty in relation to a matter under the WHS Act 2011 must consult, co-operate and co-ordinate activities with all other persons who owe a duty in relation to the same matter.

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³Sub-section 27(1) of the WHS Act 2011.

⁴Sub-section 27(5) of the WHS Act 2011.

⁵Examples of a PCBU’s duties and obligations under the WHS Act 2011 include reporting notifiable incidents, consulting with workers, consulting with other duty holders, ensuing compliance with notices, and ensuring the provision of training and instruction to workers.

The H&S duties – of a ‘worker’

A worker’s duty applies ‘while at work’.

The duty is that a worker must:

  • take reasonable care:

    • for his or her own health and safety, and

    • that his or her acts or omissions do not adversely affect the health and safety of other persons,

  • comply – so far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the person to comply with this Act, and

  • co-operate – with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

Remember – Not only does a PCBU have to consult with workers, but all duty holders who owe a duty in relation to a matter under the WHS Act 2011 must consult, co-operate and co-ordinate activities with all duty holders who owe a duty in relation to the same matter.

The H&S duties – of ‘others at the workplace’

  • take reasonable care:

    • for his or her own health and safety, and

    • that his or her acts or omissions do not adversely affect the health and safety of other persons, and

  • comply – so far as the person is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act.

A person at a workplace must:

Remember – Not only does a PCBU have to consult with workers, but all duty holders who owe a duty in relation to a matter under the WHS Act 2011 must consult, co-operate and co-ordinate activities with all duty holders who owe a duty in relation to the same matter.

Everyone in the workplace owes an H&S duty.

This is why it is important that everyone in the workplace (including visitors, such as customers and suppliers) understand what they need to do to comply with their H&S duties.

It is also possible for the definition for different types of duty holders to apply to one person.

Conclusion

The next guide in this series explains how a PCBU manages its risks by explaining the risk management process.