WHS Series –
Who owes a H&S duty? Everyone!

It is not just the business owner (known as the ‘PCBU’¹) who owes health & safety (H&S) duties.

Everyone in the workplace owes an H&S duty.

That is why the WHS Act 2011:

contains a set of principles² that apply to all types of H&S duty holders in the workplace, and
contains additional duties to consult³:
- between a PCBU and its workers, and
- between all duty holders.

Download PDF

_______________________________________________

¹An anacronym for Person Conducting a Business or Undertaking.

²Sections 13-17 of the WHS Act 2011.

³Sections 46-49 of the WHS Act 2011.

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

This guide sets out

What the principles are.
What the consultation duties are.
What each type of H&S duty holder is.

The principles that apply to all

Those principles are⁴:

A duty cannot be transferred – by one duty holder to another person.
One person can have more than one duty – because one person can fall within the definition of different types of duty holders.
More than one person can concurrently hold the same duty – where:
- Each duty holder must comply with their duty to the standard required by the WHS Act 2011 – even if another duty holder has the same duty.
- If more than one person has a duty for the same matter, each person:
  - retains responsibility for their duty in relation to the matter, and
  - must discharge that duty to the extent to which they have the capacity to influence and control the matter (or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity).

It is important to know that it is possible to belong to more than one category at the same time.

For example, someone can be both a “worker” and a “PCBU”.

Therefore, if you are a business owner, you should check whether or not you also fall within the definition of ‘worker’ because different duties apply to each definition.

__________________________________________

⁴A description of the ‘management of risks’ principle is contained in the first of this six-part series, WHS Series – Important points to be aware of

The additional duty to consult

Under WHS laws, safety is everyone’s responsibility.

Consultation within the workplace needs to happen to ensure everyone in the workplace shares this responsibility.

That is why the WHS Act 2011 imposes a duty on:

a PCBU – to consult with workers, and
all duty-holders – to consult, co-operate and co-ordinate with each other.

H&S duty holder #1 – a PCBU⁵

A person conducting…

A business or undertaking:

whether alone or with others, and
whether or not it is conducted for profit or gain.

A PCBU is

… a business or undertaking

Being conducted by a person:

includes a business or undertaking being conducted as a partnership or an unincorporated association, and
if conducted by a partnership (other than an incorporated partnership), then each partner in the partnership is a PCBU.

The following types of organisations do NOT fall within the definition of PCBU:

A person engaged solely as a worker in, or as an officer of, that business or undertaking.
An elected member of a local authority (in that capacity).
A strata title body corporate (constituted under the Strata Schemes Management Act 2015) that is responsible for any common areas used only for residential purposes (unless it engages a worker as an employee).
An incorporated association that consists of a group of volunteers working together for 1 or more community purposes where –
- the incorporated association, either alone or jointly with any other similar incorporated association, does not employ any person to carry out work for the incorporated association, and
- none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the incorporated association.
A volunteer association that consists of a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

A PCBU is not

Note – volunteer means a person who is acting on a voluntary basis, irrespective of whether the person receives out-of-pocket expenses.

___________________________________________

⁵Section 5 of the WHS Act 2011 and clause 7 of the WHS Regulation 2016.

H&S duty holder #2 – An ‘officer’ of a PCBU⁶

An ‘officer’ is

In the private sector, who an ‘officer’ is depends on the type of business structure being used by the PCBU.

Where the structure is a corporation

An ‘officer’ is:

A director.
A secretary.
A person:
- who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation,
- who has the capacity to affect significantly the corporation’s financial standing, or
- in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation).

It is important to know whether you are an officer of a PCBU, because officers both:

owe their own health & safety duties (which attract penalties) under the WHS Act 2011, and
in certain circumstances, may be held liable as if they were the PCBU.

An ‘officer’ is

Where the structure is neither an individual nor a corporation

if the entity is an unincorporated association – an office holder of the unincorporated association, or
in any other case – a person who:
- makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity, or
- has the capacity to affect significantly the entity’s financial standing.

An officer is not

Where the business entity is a partnership, under WHS laws, a partner is NOT an officer. This is because, under WHS laws, a partner is a PCBU.

____________________________________________

⁶Section 4 of the WHS Act 2011 provides that, for the private sector, ‘officer’ has the same meaning as sections 9 and 9AD of the Corporations Act 2001.

H&S duty holder #3 – A ‘worker’⁷

The General Rule

A person is a worker if the person carries out work in any capacity for a PCBU, including work as:

an employee,
a contractor or subcontractor,
an employee of a contractor or subcontractor,
an employee of a labour hire company who has been assigned to work in the person’s business or undertaking,
an outworker,
an apprentice or trainee,
a student gaining work experience,
a volunteer, or
a person of a prescribed class.

A ‘PCBU’ (person conducting the business or undertaking) is also a ‘worker’ if the person is an individual who carries out work in that business or undertaking.

Special Rules

As at the date of writing this guide, there are no special rules that affect the private sector.

_____________________________

⁷Section 7 of the WHS Act 2011.

H&S duty holder #4 – ‘others in the workplace’

Others…

‘Others’ are not defined by the WHS Act 2011. Therefore, it would simply mean everyone in the workplace other than a PCBU, officer or worker.

…in the ‘workplace’⁸

The WHS Act 2011 defines ‘workplace’ as meaning “a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work”.

It also defines a ‘place’, which is defined as including “a vehicle, vessel, aircraft or other mobile structure, and … any waters and any installation on land, on the bed of any waters or floating on any waters.”

_____________________________

⁸Section 8 of the WHS Act 2011.

Given that everyone in the workplace:

owes an H&S duty,
can owe more than one duty,
can belong to more than one type of class of duty holder, and
will be affected by the consultation duties,

It is important to know which duties apply to you and how to comply with them.

Conclusion