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CEO/Agency Head - Legislative obligations
Under the Work Health and Safety Act 2011 (WHS Act) the principal duty holder is a ‘person conducting a business or undertaking’, which replaces the term ‘employer’. PCBUs include the Commonwealth, Commonwealth Authorities, non-Commonwealth licensees, principal contractors. In some cases, there may be multiple PCBUs who share responsibilities under the WHS laws.
The duty imposed on a PCBU is probably the most significant conceptual change from the majority of OHS Acts. For the public sector, it means that every activity that could give rise to a risk is captured, in both policy and operationally.
Broadening the responsibility from employer to PCBU means that WHS Act coverage extends beyond the traditional employer / employee relationship to include new and evolving work arrangements and risks.
The WHS Act also places specific upstream duties on PCBUs who carry out specific activities:
- persons with management or control of a workplace/fixtures, fittings and plant
- designers, manufacturers, importers, suppliers and PCBUs that install construct or commission plant or structures.
Any PCBU who is contributing to work has a duty of care, and there can be more than one duty in relation to specific activities.
Note that a ‘Volunteer association’ (as defined in section 5(8) of the WHS Act) is not treated as a business or undertaking.
- See Safe Work Australia’s interpretive guideline on the meaning of ‘person conducting a business or undertaking’
Duty of Care
The PCBU must ensure, as far as is reasonably practicable, the health and safety of:
- workers engaged, or caused to be engaged by the person, and
- workers whose activities in carrying out work are influenced or directed by the person
- while the workers are at work in the business or undertaking.
A PCBU’s duties must be discharged so far as is ‘reasonably practicable’, which is defined in the WHS Act to mean that which is, or was reasonably able to be done taking into account and weighing up all relevant matters such as:
- the likelihood of hazard or risk occurring
- the degree of harm
- what the person knows or ought reasonably 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
- cost - after assessing the extent of the risk and the available ways (of control), the cost of the available ways, including whether the cost is grossly disproportionate to the risk.
Section 3(2) of the WHS Act states that the ‘…highest level of protection. as is reasonably practicable..’ must be put in place and makes it clear that you start with what can be done and only do less where it is reasonable to do so.
The duty of care obligations for a PCBU will extend beyond the traditional employer/employee relationship to include all workers. Workers under the WHS Act include
- independent contractors
- outworkers – e.g. home based
- work experience students
- volunteers who work in an employment-like setting.
A PCBU, or individual duty holder, will need to establish a due diligence framework to meet their duty of care obligations taking the following matters into consideration;
- contractors will be owed the same duty as employees or any other worker
- a person is a worker if they carry out work in any capacity for a PCBU
- a PCBU has a duty to consult with all workers including contractors
- a PCBU retains overall responsibility even if they contract out activities to others to ensure compliance with duties
- more than one person can concurrently owe the same duty
- if more than one person has a duty of care for the same matter, then each person:
- retains responsibility for their duty in relation to the matter
- must discharge their duty to the extent the matter is within the person’s capacity to influence or control, and
- must consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter
- multiple PCBUs in the same workplace must consult with each other and workers to clearly define who has control over activities being undertaken and to what extent.
The duty of care to ensure the health safety of workers extends beyond just the physical work. ‘Health’ is defined under the WHS Act to include both physical and psychological health.
There is increasing understanding that the workplace must be taken into account, both for its possible effect on triggering or worsening mental health conditions and for the impact that mental health conditions may have upon an individual's ability to function effectively in the workplace. A psychologically safe and healthy workplace is one that promotes workers psychological well-being and does not harm their mental heath. Psychological health consists of our ability to think, feel and behave in a manner that enables us to perform effectively at work, home and in society at large. Psychological safety deals with the risk of injury to mental well-being that a worker might experience. Improving the psychological safety of a work setting involves managing risks that have a powerful impact on individual and organisational health.
CEOs/Agency Heads should promote and foster open lines of communication and consultation with workers. This can be achieved by:
- creating and nurturing joint partnerships with:
- workplace work groups
- HSRs and employee representatives
- Other involved PCBUs
- ensuring that effective consultation processes are built into the business through its systems, policies and procedures
- engage with workers by being visible and open to feedback and ideas.
PCBUs are responsible for ensuring that the regulator is notified for certain serious injuries or illnesses that arise out of work and dangerous incidents that occur at a workplace. An open reporting culture creates a workplace where it is safe to admit, report and learn from incidents. This content coexists with high standards of performance.
A PCBU must notify immediately once they become aware of a notifiable incident by the fastest possible means.
Having clear, effective and workable reporting processes will enable the PCBU to meet their obligations to notify the regulator within the requirements of the WHS laws. A PCBU must ensure that all workers are aware of their need to report incidents through the internal policies and procedures and not disturb an incident site until an inspector attends the site or advises otherwise.
PCBUs have the overall duty to ensure that authorisations are in place for high risk work or plant such as licences, permits and registrations before high risk work activities commence. These are regulatory tools to manage activities that are of such high risk as to require demonstrated competency or a specific standard of safety.
The need for authorisation places costs on duty holders as well as on regulators. The level of authorisation is intended to be proportionate to the risk, with a defined and achievable safety benefit.
Union Right of Entry
The WHS Act confers rights on a person who holds an office in or is an employee of a union (WHS entry permit holders) to enter workplaces and exercise certain powers while at those workplaces.
There are certain requirements of WHS entry permit holders who are exercising or proposing to exercise a right of entry. A WHS permit holder may do any of the following on entering a workplace to inquire into a suspected contravention:
- inspect anything relevant to the suspected contravention including work systems, plant, substances etc
- consult with relevant workers or the relevant PCBU about the suspected contravention
- require the relevant PCBU to allow the WHS entry permit holder to inspect and make copies of any document that is directly relevant to the suspected contravention that is kept at the workplace or accessible from a computer at the workplace, other than an employee record, or
- warn any person of a serious risk to his or health or safety emanating from an immediate or imminent exposure to a hazard that the WHS entry permit holder reasonably believes that person is exposed