South Australia’s work health and safety (WHS) laws are aligned with New South Wales, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory and the Commonwealth. Doing so provides workers with the same standard of health and safety protection regardless of where they work, or the work they do. There are several key principles of the laws which are consistent with long-established and familiar work health and safety principles. Below is a brief explanation of each key term that you will often come across.
PCBUs that design structures, such as engineers and architects must as is reasonably practicable:
- ensure there is no health or safety risk with the structure they design for those who construct, alter, convert, fit out, commission, maintain, refurbish, renovate, repair, demolish, dismantle, or dispose of the structure
- ensure there is no health or safety risk with the structure they design for those who use it as or at a workplace for the purpose for which it was designed, or for anyone who is exposed to it
- calculate, analyse, test or examine any aspect of the design of the structure to ensure that it is designed to be without risks
- provide information to users in the safe use of the design as per subsection 22(4) of the WHS Act, including the purpose for which it was designed.
By demonstrating due diligence or taking reasonable steps, Officers are required to:
1. acquire and maintain work health and safety knowledge relevant to their workplace, which can be demonstrated by:
- gaining up-to-date knowledge of the WHS Act and Regulations, plus relevant codes of practice
- keeping up-to-date about work health and safety management principles
- considering work health and safety matters at each corporation, club or association board meeting
- investigating current industry issues through conferences, information sessions, industry groups and newsletters.
2. understand the workplace’s operation and associated hazards and risks, which can be demonstrated by:
- developing a workplace operational plan that identifies core activity hazards
- having information readily available to other officers and workers about procedures to ensure the safety of those operations that pose health and safety risks
- continuously improving the safety management system.
3. ensure that resources and processes are available to eliminate or minimise health and safety risks, which can be demonstrated by:
- establishing/maintaining safe methods of work
- implementing a safety management system
- recruiting workers with appropriate skills, including safety personnel
- ensuring staffing levels are suitable for safety in operations
- giving safety personnel access to decision makers for urgent issues
- maintaining/upgrading infrastructure.
4. ensure there are appropriate processes for receiving, considering and responding to information about incidents, hazards and risks, which can be demonstrated by:
- considering/responding to these matters in a timely fashion
- employing a risk management process
- having efficient, timely reporting systems
- empowering workers to cease unsafe work and request better resources
- measuring against positive performance indicators to identify deficiencies (e.g. percentage of issues actioned within an agreed timeframe).
5. ensure that the PCBU has, uses and maintains processes for complying with their legal responsibilities, such as notifications, consultation and training, which can be demonstrated by:
- complying with notices issued under the WHS Act
- effective consultation with workers
- providing training and instructing workers about work health and safety
- making sure that health and safety representatives receive training
- undertaking a legal compliance audit of policies, procedures and practices
- testing policies, procedures and practices to verify compliance with safety management planning.
6. verify the provision and use of the resources and processes referred to above.
This approach emphasises the corporate governance responsibilities of Officers. It is critical to the achievement of positive safety outcomes that management lead the corporate safety agenda.
The term ‘Duty holder’ refers to any person who owes a work health and safety duty under the WHS Act. The people this includes are the:
- installer of product or plant used at work (upstream duty holders)
It is possible for more than one person to simultaneously have the same duty, in which case the duty becomes shared. However, duties cannot be transferred.
An Enforceable undertaking is a legally binding agreement in which a person or organisation decides to rectify a contravention of the WHS Act to improve work health and safety outcomes and performance. As an alternative to prosecution, enforceable undertakings enable on-site remedies to safety breaches following an agreement between the regulator, an individual or the organisation.
In certain circumstances, a number of workers who have formed a workgroup may elect a Health and Safety Representative (HSR) to represent them on work health and safety matters. The role of HSRs is important, as it provides a vehicle for consultation and working with PCBUs to resolve identified issues.
HSRs do have legal powers and particular functions which include:
- representing workgroups on health and safety matters
- investigating complaints about health and safety
- monitoring PCBU compliance with work health and safety laws
- enquiring into anything that appears to pose a risk to health or safety
- directing unsafe work to cease
- issuing provisional improvement noticed (PINs).
HSRs are entitled to attend approved HSR training sessions in order to help develop the skills needed to effectively carry out their role. It is recommended that the HSR attends their training as soon as possible after being elected.
An officer is a person who makes, or helps make a decision which affects either the whole or a major part of a business or undertaking. If a person has the capacity to significantly affect the financial standing of the organisation, they are recognized as an officer.
Officers of a PCBU have a specific duty to exercise due diligence to ensure they meet their own workplace health and safety obligations. Furthermore, they have to be proactive in ensuring the PCBU complies with their duties under the WHS Act. They are responsible for actively fulfilling the duty and should not assume that someone else has taken care of health and safety outcomes.
You are considered to be an Officer if you are an officer:
- within the meaning of section 9 of the Corporations Act 2001
- of the Crown within the meaning of section 247 of the WHS Act
- of a public authority within the meaning of section 252 of the WHS Act.
Partners of a partnership are known as PCBUs and not officers.
There is no need to appoint or train a ‘Responsible Officer’.
Partners individually and collectively are the PCBU; however, they are not an Officer. Even though they are not an officer, it may still be helpful to look at the duties of an Officer. Doing so will show how to make sure that you are meeting your obligations as a PCBU for the primary duty of care for health and safety.
A Person Conducting a Business or Undertaking (PCBU) is a key term in South Australia's work health and safety laws which covers a broad range of modern work relationships and business structures. These include someone operating a business or undertaking for-profit or not-for-profit, whether alone or with others. The definition of a PCBU focuses on work arrangements and the relationships involved in carrying out that work.
A PCBU can be recognised as an:
- sole trader
- partnership local government (council)
- state or commonwealth government
- certain volunteer organisations
- the trustee of a trust.
A self-employed person is also a PCBU and must ensure his or her own health and safety while at work, so far as is reasonably practicable.
A public authority is defined in our laws as an agency or instrumentality of the Crown or an administrative unit or department within the public service. The laws also define a PCBU sufficiently widely to cover public sector agencies, which therefore binds the Crown as a legal entity. This means that all public authorities and Officers within them have duties and are accountable (and liable to face prosecution) for any breaches of the laws, to the same extent as private sector organisations.
The primary duty of a PCBU (section 19 of the Work Health and Safety Act 2012 (SA)) is to ensure, so far as is reasonably practicable, that the health and safety of workers (and others, like clients, visitors and customers) is to not be put at risk by the work carried out by the business or undertaking. This duty requires PCBUs to provide and maintain:
- a safe work environment
- safe plant and structures
- safe systems of work
- safe use, handling and storage of plant, structures and substances
- adequate facilities to support the welfare of workers
- information, training, instruction or supervision
- monitoring of workers' health and workplace conditions to prevent illness or injury.
There are additional duties for a PCBU who:
- manage or control a workplace
- control fixtures, fittings or plant at a workplace
- design, manufacture, import or supply plant, substances or structures
- install, construct or commission plant or structures for a workplace.
Worker accommodation owned or controlled by a PCBU and necessary for a worker's engagement because other accommodation is not reasonably available must also be maintained so that workers are not exposed to health and safety risks.
A PCBU does not include:
- a person engaged solely as a worker or an officer
- an elected member of a local authority
- a volunteer association (where no workers are employed)
- a strata title body corporate responsible for common areas used only for residential purposes (so long as the body corporate does not directly employ workers).
The term ‘Reasonably practicable' means whatever is, or was at a particular time, reasonably able to be done in relation to ensuring health or safety. This takes into account and weighs up all relevant matters including:
- the likelihood of a hazard or risk occurring
- the degree of harm that might result from the hazard or risk
- what the person concerned knows, or ought reasonably to know, about the hazard or risk, and ways of eliminating or minimising the risk
- the availability and suitability of ways to eliminate or minimise the risk
- whether the cost is grossly disproportionate to the risk.
Important aspects of the term reasonably practicable include:
- what could be done at the time
- the need to weigh up all relevant matters
- cost (which may only be considered after all other aspects have been assessed)
- availability and suitability of ways of eliminating or minimising the risk
- the level of control a PCBU has over the matter.
Every state and territory has a work health and safety regulator whose inspectors are appointed to:
- ensure compliance
- enforce laws as necessary.
Inspectors also have the power to issue:
- Infringement Notices.
Under certain circumstances, union officials can enter a workplace to inquire into a suspected contravention of work health and safety laws, inspect worker records and consult with workers. Union officials must follow strict procedures, with penalties in place for any misuse of the Right of Entry.
A volunteer is a person who acts on a voluntary basis, regardless of whether they receive payment for out-of-pocket expenses. As a volunteer in a workplace, much the same as any worker, you must:
- take reasonable care of your own health and safety
- ensure that your actions do not adversely affect the health and safety of anyone else
- comply with any reasonable instruction, and
- co-operate with a PCBU's work health and safety policies and procedures.
A volunteer is a worker for the purposes of the WHS Act when volunteering for a PCBU such as an organisation that employs at least one worker.
A 'volunteer association' for the purposes of the WHS Act is a group of volunteers working together for one or more community purposes where nobody is employed. If a volunteer association is run purely by volunteers it:
- is not captured by the WHS Act
- does not have duties under the WHS Act (however, common law obligations to ensure the safety of their volunteers remain).
However, if a volunteer association employs someone to carry out work then it:
- meets the definition of a PCBU
- falls within the scope of the WHS Act
- must ensure the health and safety of workers (including volunteers), consult with them on work health and safety matters, and provide adequate information, training and supervision.
A volunteer who is an Officer of a PCBU must comply with the health and safety duties of that role.
Safe Work Australia has developed a comprehensive volunteer resource kit and other guidance material to help volunteer organisations understand and comply with any obligations under the WHS Act.
A worker is anyone who carries out work for a Person Conducting a Business or Undertaking(PCBU) regardless of whether they are full-time, part-time or casual. This can be an:
- contractor or subcontractor (or an employee of)
- apprentice or trainee
- school-based work experience student
- labour hire employee
A worker's responsibility is to take sensible care of their own safety, whilst ensuring they don’t unfavourably affect the health and safety of anyone else, be it a fellow worker, client, customer or a visitor. Workers must also comply with any reasonable instruction given by the PCBU and co-operate with their work health and safety policies and procedures.
Clients, visitors and customers have their own work health and safety responsibilities, similar to those of a worker. They should be aware of their own safety and the safety of anyone else in the workplace and follow any instructions given by the PCBU as well.
*Outworkers are contractors or workers who are engaged to work from their home or at a place that would not previously have been thought of as a business premise. They are common in the textile, clothing or footwear industries.
A workplace includes any place where a worker goes or is likely to be for their work, such as a shop, office or factory. It also includes construction sites, and vehicles, vessels, aircraft or other mobile structures on land or water.