Who is Responsible

The WHS Act places duties on those persons, who by their acts or omissions, affect health and safety.

The duty holders are:

· Officers
· Workers and other persons at the workplace

 A person in control of a business or undertaking – PCBU

A PCBU is the legal entity operating a business or undertaking.  A PCBU may be an individual person or an organisation conducting a business or undertaking.

Examples of PCBUs who are individuals include:

  • partners in partnerships
  • sole traders and the self employed
  • individual trustees of trusts (as with some family businesses)
  • Committee members of unincorporated associations if they employ someone.

The person conducting the business or undertaking is also a worker if they carry out work in the business or undertaking.

However the WHS Act makes it clear that an individual is not a PCBU if they are involved in the business or undertaking only as a worker or officer of the business or undertaking.  Individuals who are directors or in managerial positions within employing organisations have separate and specific duties as officers.

A PCBU will be liable if they expose a person to risk to their health and safety and the risk arose from work carried out as part of the conduct of the business or undertaking.

In summary:

A health and safety duty is owed by a PCBU if it:

  • engages workers or causes workers to be engaged
  • influences or directs workers activities
  • has the management or control of the workplace in which work is done
  • designs manufactures, imports, supplies, installs, commissions or constructs plant or structures or substances for use at a work.

 Need for formal WHS/OHS due diligence frameworks

The new legislation requires that officers must take a pro-active approach to work health & safety and exercise due diligence, which includes:

  • Understanding the nature of operations and the associated hazards and risks
  • Verifying that risks and hazards are being appropriately controlled
  •  Ensuring that appropriate resources and processes are available to work safely
  •  Ensuring that processes are in place to receive and review pertinent information (incidents, hazards, risks) and respond in a timely manner
  •  Ensuring that knowledge of WHS laws and compliance requirements is up to date
  •  Verifying the implementation of those processes through regular audits and verifying legal compliance.
    1. A major expansion and definition of the term worker to include, employees, contractors, apprentices, labour hire personnel, outworkers, volunteers and students. Using sub-contractors will not protect you
    2. Employees must eliminate risk to health and safety, so far as is reasonably practicable and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
    • Workplace Safety Inspectors have wide ranging powers to enter a business at any time without warrant, carry out inspections, request and take documents, evidence, photographs etc. It is an offence to not supply information or hinder a workplace safety inspector.  (Penalty-PCBU $10,000 and Body corporate $50,000).