Work Health & Safety Guide

The Work Health & Safey Act 2011 imposes a number of important and exhaustive non-transferrable duties on Officers and Managers, Persons Conducting a Business or Undertaking (PCBU), Workers and Other Persons at the workplace.

These duties include:

• PCBUs’ primary duty to ensure the health and safety of workers,
• Officers’ duty to exercise due diligence to ensure that PCBUs comply with their duties and obligations,
• Workers’ duties to take reasonable care for their own health and safety, the heath and safety of other persons, and to comply with reasonable instructions given by a PCBU, and
• Other Persons’, at a workplace, duty take reasonable care for their own health and safety, the health and safety of other persons, and to comply with reasonable instructions given by a PCBU.

Importantly, a person may have more than one duty and more than one person can have the same duty.

If more than one person has a duty in relation to the same matter, each of those persons has a duty to consult and must, as far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who share the duty.

Understanding and fulfilling these duties is vitally important, not only for protecting workers and other persons against harm to their health, safety or welfare, but because a failure to comply with a duty will constitute an offence under the Act.

Depending on the severity of the failure, offences are categorised as either category 1, 2 of 3 offence; with category 1 offences relating to circumstances where a person has demonstrated gross negligence or recklessness and carrying severe penalties including fines of up to $761,750 and/or imprisonment for up to 5 years and fines of up to $ 3,809,300 for companies.

SafeWork NSW has broad powers available for enforcing compliance with Work Health and Safety Laws. SafeWork Investigators have the power to enter any place of work, conduct interviews and make inquiries, take photographs and other recordings, take samples, examine and copy documents, and secure or seize evidence.

Where WHS Laws have been breached SafeWork may give a precaution, negotiate and accept an enforceable undertaking, or carry out legal prosecutions against individuals, employers or businesses responsible for the breach through the Courts.

A PCBU (Person Conducting a Business or Undertaking) has the primary duty to ensure, so far as is reasonably practicable:

• the health and safety of workers engaged by the person and the health and safety of workers activities are influenced or directed by the person, and
• that workers and other persons are not put at risk from work carried out as part of the conduct of the business or undertaking exposed to health and safety risk.

This primary duty specifically extends, without limitation, to:

• the provision and maintenance of a safe and risk free work environment,
• the provision and maintenance of safe plant and structures,
• the provision and maintenance of safe systems of work, and
• the provision of information, training, instruction and supervision necessary to protect persons from risks.

A PCBU must consult, cooperate and coordinate with other PCBUs with whom they share duties.

‘Reasonably practicable’ means doing what is effective and possible to ensure the health and safety of workers and others. All people must be given the highest level of health and safety protection from hazards arising from work, so far as is reasonably practicable.

A person conducting a business or undertaking (PCBU) should always seek to eliminate, so far as is reasonably practicable, any health and safety risks. If a risk cannot be eliminated, the PCBU must minimise the risk, so far as is reasonably practicable, by:

• substituting (wholly or partly) the hazard with something with a lesser risk,
• isolating the hazard from any person exposed to it, and
• implementing engineering controls.

If these controls do not fully eliminate or minimise the risk, the PCBU must implement administrative controls and then, if appropriate, ensure the provision of suitable personal protective equipment.

A combination of controls may be used to minimise a risk if a single control is not sufficient.

Control Measures

In determining control measures, the PCBU should identify and consider everything that may be relevant to the hazards and risks and the means of eliminating or minimising the risks.

The PCBU, when determining what is reasonably practicable, should take into account:

• the likelihood of the hazard or risk occurring,
• the degree of harm from the hazard or risk,
• knowledge about ways of eliminating or minimising the hazard or risk, and
• the availability and suitability of ways to eliminate or minimise the risk.

The more likely the hazard or risk is, or the greater the harm that may result from the hazard, the less weight should be given to the cost of eliminating or minimising the risk.

Officers of PCBUs must exercise due diligence, which at its simplest, requires an officer to concentrate on managing the work health and safety (WHS) risks of the business or undertaking and ensuring that PCBUs fulfill their primary duties of care.

Under WHS Laws an Officer includes:

• a director or secretary of a company,
• a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company,
• a person who has influence over decisions that affect the business or undertaking of the company or entity, including financial and administrative decisions,
• a person who can instruct other officers or directors about the business or undertaking of the corporation or entity,
• a liquidator of the business or undertaking, and
• a trustee of the business or undertaking.

The reasonable steps officers must take to ensure they are exercising due diligence include, but is not limited to:

• acquiring and keeping up to date with knowledge of WHS matters,
• gaining an understanding of the PCBUs business operations and the associated hazards and risks,
• ensuring the PCBU has available for use, and uses, the appropriate resources and processes to eliminate or minimise risks to health and safety,
• ensuring the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information,
• ensuring the PCBU implements processes for complying with any duty or obligation under the WHS Act, and
• verifying the provision and use of resources and processes required for compliance.

Examples of how to keep up to date on WHS matters include:

• enhancing the expertise of the officer through WHS training, information sessions and/or conferences etc,
• understanding what the Work Health and Safety Act 2011 (WHS Act) requires and the strategies and processes for eliminating hazards and risks,
• keeping up to date with changes in WHS matters, legislation, codes of practice and safety guidelines,
• accessing industry specific WHS information such as from industry associations,
• subscribing to publications and websites such as Safe Work Australia, and
• obtaining assistance from WHS Lawyers and/or Safety Consultants as necessary.

Giving proper consideration of the hazards and risks associated with the operations is an important obligation for officers when making decisions.

An appropriate understanding required for decision making could be gained by:

• undertaking regular inspections of the workplace/s,
• consulting with workers about WHS hazards and risks,
• having a way of identifying and managing health and safety risks,
• implementing and using an effective WHS incident and hazard management system,
• having a sound knowledge of the PCBU’s risk management system, which may require obtaining appropriate advice,
• actively participating in how the PCBU conducts its WHS risk management processes, and
• understanding the WHS regulatory requirements for hazards and risk that impact on the organisation’s operations.

Examples to help ensure risks to health and safety are eliminated or minimised include:

• providing an effective governance structure and WHS incident and hazard management system
• establishing and maintaining a system to manage risks to health and safety
• scrutiny and oversight to ensure allocation of resources to manage work health and safety in matters such as:
  • safe plant and equipment,
  • maintenance of plant and equipment, and
  • training of workers.

Implement a reporting system to ensure information about incidents, emerging hazards and risks is:

• communicated,
• considered,
• acted upon promptly, and
• remedial actions monitored.

Officers must ensure the areas requiring compliance are identified and they exercise an appropriate level of scrutiny and oversight of the PCBU to ensure it complies with its WHS obligations.

These obligations include:

• reporting of notifiable incidents,
• duty to consult with workers,
• action on improvement, prohibition and non disturbance notices,
• obligations to provide information, training and instruction to workers about work health and safety,
• obligations for health and safety representative training,
• licensing and registration obligations,
• obligations for union right of entry requirements, and
• duty to consult, cooperate and coordinate activities with other duty holders.

An officer must verify the PCBU has implemented the work health and safety system and is legally compliant. This includes:

• ensuring board reports include relevant WHS information,
• ensuring adequate resources and safety processes are in place and being used,
• actively verifying and auditing safety arrangements, and
• ensuring the PCBU has addressed any identified gaps and provided detailed reports to the board on actions taken to address safety issues.