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Primary duty of care


A person conducting a business or undertaking (PCBU), which includes a company, a self-employed person, each partner within a partnership, an unincorporated association or a government department, has a primary duty of care to ensure workers, contractors and others are not exposed to risks to their health and safety as a result of work activities.

Under the Work Health and Safety Act 2012 (SA) (the Act), a PCBU has a primary duty of care and must, so far as is reasonably practicable, ensure the health and safety of: 

  • workers they have engaged, or caused to be engaged
  • workers carrying out work who are directed by or can be influenced by them, eg contractors
  • anyone else who may be affected by the work carried out, eg visitors and the public.

A worker can be:

  • an employee
  • a contractor or subcontractor
  • an employee of a labour hire company who has been assigned to work for a PCBU
  • an outworker
  • an apprentice or trainee
  • a student gaining work experience
  • a volunteer.

Duties of duty holders

To ensure the health and safety of workers and others a PCBU must, so far as it is reasonably practicable:

  • provide and maintain of a work environment without risks to health and safety
  • provide and maintain of safe plant, equipment and structures
  • provide and maintain safe systems of work
  • the safe use, handling and storage of plant, structures and substances
  • provide adequate facilities are provided for the welfare of workers when carrying out work for you, including ensuring access to those facilities
  • provide any information, training, instruction or supervision that is necessary to protect any person from risks to their health and safety arising from work carried out as part of the conduct of your business or undertaking
  • monitor the health of workers and the conditions at the workplace for the purpose of preventing illness or injury to workers arising from the conduct of your business or undertaking
  • maintain any accommodation, where provided, so as not to expose a worker to health and safety risks.

Where a person has a duty to ensure health and safety, they are required to:

  • eliminate risks so far as is reasonably practicable, or
  • if this is not possible, minimise risks so far as is reasonably practicable.

Health and safety duties are not transferrable. They cannot be contracted out to another party, such as a subcontractor.

As well as the primary duty of care a PCBU also has a duty to:

  • consult with other duty holders, and
  • consult workers and their representatives.

A person can have more than one duty eg duties as a manufacturer as well as duties as a PCBU to workers and others.

More than one person can have the same duty at the same time, in which case the duty is shared.

Other duty holders

Other people who are duty holders under the Act and therefore have specific duties include:

  • anyone with management or control of a workplace
  • designers of plant substances or structures
  • manufacturers of plant, substances or structures
  • importers of plant, substances or structures
  • suppliers of plant, substances or structures
  • installers of products or plant used at work
  • workers
  • officers, and
  • other persons at the workplace.

The health and safety duty of an officer under section 27 is explained further in Safe Work Australia’s Interpretative Guideline – Model Work Health and Safety Act

Designers, manufacturers, importers and suppliers of plant, structures or substances are referred to as upstream PCBUs. They can influence the safety of products before they are used in the workplace.

Upstream PCBUs have a responsibility to ensure, so far as is reasonably practicable, that their products are without any risks to health and safety when used at a workplace.

Penalties

A PCBU found in breach of their health and safety duties could be prosecuted and subject to significant penalties under the Act. There are three offence categories:

Category 1 – reckless conduct that exposes a person to a risk of death or serious injury or illness

  • Individual - $300,000 or 5 years imprisonment or both
  • PCBU or officer - $600,000 or 5 years imprisonment or both
  • Body corporate—$3,000,000.

Category 2 – failure to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness

  • Individual - $150,000
  • PCBU or officer - $300,000
  • Body corporate—$3,000,000.

Category 3 – failure to comply with a health and safety duty

  • Individual - $50,000
  • PCBU or officer - $100,000
  • Body corporate—$500,000.

Engaging contractors

You owe a duty of care when, as a PCBU, you:

  • direct or influence work carried out by a worker
  • engage or cause to engage a worker to carry out work, including through sub-contracting, or
  • have management or control of a workplace.

Shared responsibilities

If a PCBU engages a contractor, both parties have shared responsibilities and must work together to ensure the health and safety of themselves and others.

The Act requires each PCBU to consult, cooperate and coordinate activities so that WHS risks can be effectively managed. The purpose of consultation is to ensure everybody has a shared understanding of the risks, who will be affected and how the risks will be controlled.

The exchange of information helps each person to meet their duty and minimise gaps in WHS management. This process can range from directly discussing and planning daily work with contractors to establishing formal mechanisms with written agreements and consultation meetings.

Each PCBU must, so far as is reasonably practicable, consult with workers and any health and safety representatives (HSRs) about matters that directly affect their health and safety. This duty extends to all workers, as defined previously.

The duty to consult does not require agreement, although each duty holder retains responsibility for meeting their health and safety duties.

Example:

A principal contractor and a subcontractor for construction work, as PCBUs, must ensure, so far as is reasonably practicable, the provision of adequate facilities for the welfare of the workers carrying out the construction work. This does not mean that both are responsible for providing the facilities. One may provide the facilities with the other duty holder satisfying themselves that their duty is met because the facilities provided by the other duty holder fulfil their obligations.

Source: Guide to the model Work Health and Safety Act, SafeWork Australia, March 2016

Contracts

The primary duty of care applies to all PCBUs regardless of the terms of any contract. The “no contracting out” provision is fundamental to the Act. This provision essentially means that duty holders cannot limit or modify their obligation by way of a contract with a third party.

Contracts that assume liability to the contractor for all health and safety matters arising from the work will be void to the extent they attempt to render the contractor responsible or liable for a PCBU's statutory duties. The question of what duties you have will always be determined on the facts and circumstances of each case, rather than contractual terms.

Each PCBU retains responsibility and must discharge their duty to the extent by which they have the capacity to influence and control the matter, disregarding any attempts to “contract out” their responsibilities.

Example:

A labour hire company hires out workers to host employers to carry out work for them. Both the labour hire company and the host employer owes a duty of care to those workers. In such cases both are fully responsible for meeting that duty to the extent by which they have capacity to influence and control the matter. It is not possible to ‘contract out’ of work health and safety duties.

Source: Guide to the model Work Health and Safety Act, SafeWork Australia, March 2016

Codes of Practice and Australian Standards

Codes of Practice indicate best practice controls for particular types of hazards. They must be followed unless you can show an alternative control provides at least the level of safety as the controls recommended in the applicable code, or you can show the recommended controls are not ‘reasonably practicable’ for your particular situation.

For example:

The Code of Practice: How to manage work health and safety risks provides practical guidance for persons who have duties to manage risks to health and safety under the Act and Regulations.

The Code of Practice: Managing the work environment and facilities applies to all types of work and all workplaces covered by the Act and Regulations, including workplaces that are mobile, temporary or remote. It provides practical guidance for PCBUs on how to provide and maintain a physical work environment that is without risks to health and safety. The Code covers:

  • the physical work environment, such as workspace, lighting and ventilation
  • facilities for workers, including toilets, drinking water, washing and dining areas, change rooms, personal storage and shelter
  • remote and isolated work
  • emergency plans.

Where an approved Code of Practice references Australian or Australian/New Zealand Standards, the risk controls specified in those standards must also be complied with. All Australian Standards provide examples on how to control particular risks and should be considered when determining a suitable control measure.