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WHS Practitioner/Advisor – WHS duty holders
Principles applicable to duties under the WHS Act
Duties under the WHS Act are non-transferable. A person may have more than one duty and more than one person can have the same duty. However, in that case, each person must discharge the duty to the extent the person has the capacity to influence and control the matter (or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity).
Duties imposed on a person to ensure health or safety (‘health and safety duties’) require the person:
- to eliminate risks 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.
WHS practitioners are workers. The WHS Act adopts a broad definition of ‘worker’ to recognise the changing nature of work relationships and to ensure health and safety protection is extended to all types of workers.
A worker includes:
- independent contractors
- outworkers e.g. home based
- work experience students
- volunteers who work in employment-like setting.
Volunteer means a person who is acting on a voluntary basis (irrespective of whether they receive out-of-pocket expenses):
- The WHS Act specifically protects volunteers in their capacity as workers.
- Ensures that volunteers are not discouraged from participating in community-based activities.
- A ‘volunteer association’ (as defined) is not treated as a business or undertaking.
- Take reasonable care for their own health and safety.
- Take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons.
- Comply, so far as the worker is reasonably able, with any reasonable instruction given by a person conducting a business or undertaking to allow the person conducting the business or undertaking to comply with the WHS Act.
- Cooperate with any reasonable policy or procedure of the person conducting the business or undertaking which relates to work health or safety and that has been notified to workers.
The principal duty holder is a ‘person conducting a business or undertaking’ and has replaced the term ‘employer’. PCBUs include the Commonwealth, Commonwealth Authorities, non-Commonwealth licensees, principal contractors, and will, in some cases, necessitate an analysis to understand who is a PCBU in a particular factual context under the WHS laws.
The duty of a person conducting a business or undertaking is probably the most significant conceptual change from the majority of previous OHS Acts. For the public sector, it means that every activity is captured, both policy and operational. The WHS Act coverage extends beyond the traditional employer/employee relationship to include new and evolving work arrangements and extends a PCBUs duty of care to any person who is performing work directly for, or on behalf of, the PCBU.
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
- duties extend to any PCBU who is contributing to work has a duty of care. This can be more than one duty in relation to specific activities.
Note: ‘Volunteer associations’ (as defined in the WHS Act) are not treated as a business or undertaking.
A PCBU retains overall responsibility for workplace health and safety even if they contract out activities to others under their duty of care obligations. The WHS Act provides that a person can have more than one duty by virtue of being in more than one class of duty holder and that more than one person can concurrently owe the same duty
If more than one person has a duty of care for same matter, then each person:
- retain 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
- must consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.
PCBU duty to consult
A PCBU, through its officers, has a duty under the WHS Act to consult with workers at all levels of the business. Senior leaders and managers 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 representative
- other involved PCBUs.
- Ensuring effective consultation processes are built in to the business through its systems, policies and procedures.
- Engage with workers by being visible and open to feedback and ideas.
An officer is, in most cases, a senior executive who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking. Officers have a duty to be proactive and continuously ensure that the business or undertaking complies with relevant duties and obligations.
The scope of an officers’ duty is directly related to the influential nature of their position. A high standard requires persistent examination and care to ensure that the resources and systems of the business or undertaking are adequate to comply with the duty of care required under the WHS Act. This also requires officers to ensure that delegations are working effectively. Where the officer relies on the expertise of a manager or other person, that expertise must be verified and the reliance must be reasonable.
The intention of the officers’ duty is to ensure engagement and leadership by officers in WHS management, better providing for sustainability and improvement in WHS performance.
Officers of PCBUs that have a duty or obligation under the WHS Act must exercise ‘due diligence’ to ensure that the person conducting a business or undertaking complies with that duty or obligation
Duties of others
All other persons at a workplace, such as visitors or customers, have health and safety duties. They include:
- Taking reasonable care for their own health and safety at the workplace, and ensuring that their acts or omissions do not adversely affect the health and safety of others at the workplace.
- Complying, so far as they are reasonably able to, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the WHS laws.
What’s my role in consultation?
As a WHS practitioner/advisor you are aware of the many benefits that effective consultation yields. Supporting managers and senior leaders to promote and foster open lines of communication and consultation with workers will ensure that the overall process is effective and undertaken in line with legislative obligations.
You are often the best placed within the business to initiate, guide and promote consultation on health and safety. It is through this process that senior leaders and managers are best supported. The WHS practitioner/advisor can further assist in this process by:
- encouraging senior leaders and managers to share health and safety information with workers about health and safety matters
- facilitating open discussions between managers and workers
- ensuring that worker views are taken into account and given adequate consideration.
Your role in consultation is to act as the facilitator by assisting senior leaders and managers to share information about health and safety with workers and, in turn, allowing worker suggestions and feedback to be taken into account before a final decision is made.
With your ongoing support and guidance effective consultation can be achieved, and through repetition, practice and review, can be built in to everyday business systems, policies and procedures that underpin health and safety in the workplace.
Notifications to the regulator
Who is accountable for notifying health and safety incidents to Comcare?
PCBUs have the overall duty to notify the regulator for certain serious injuries or illnesses that arise out of work and dangerous incidents that occur at a workplace must be notified to the regulator. A PCBU must notify immediately once they become aware of a notifiable incident by the fastest possible means.
What’s my role in the notification of incidents?
Although PCBUs have the overall duty in regards to incident notifications, it is often the WHS practitioner/advisor that is required to notify the regulator on behalf of the PCBU.
As a WHS practitioner/advisor you are an important part of this process and are often one of the first ones to hear about an incident from a manager or a worker. To assist managers and workers in understanding how they can assist in the notification process, it is essential they understand and believe in an open reporting culture that encourages them to submit internal reports on:
- incidents in the work place
- near misses or hazards
- and any other incident that may assist with trending data e.g. minor first aid
- high levels of leave or unexplained absences from work (potential bullying is one example).
Where effective local reporting procedures are in place that support and comply with business polices or procedures, the WHS practitioner/advisor will have a clearer picture of the overall business hazards/risks and this in turn assists the senior leaders to understand the importance of investing in health and safety.
It is often the WHS practitioner/advisor who is tasked by the executive/senior leaders, to develop and implement reporting procedures and to ensure that they are followed by managers and workers.
WHS practitioner/advisors should involve HSRs in ensuring that workplaces are safe and encourage workers to talk to them about any hazards or risks in their work group. The HSRs, in turn, should be encouraged to reinforce messages that emphasise the importance of reporting incidents in line with internal policies and procedures. The HSR should also reinforce the message that no one can disturb an incident site until an inspector attends the site or advises otherwise.
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.
Under the WHS Act a contractor will be a worker and will now owe the same duties as any other worker if they are carrying out work in any capacity for a PCBU.
Health and safety obligations imposed on a PCBU in relation to the way contractors are managed have not changed from the former OHS laws except that the duty now has a wider application. This means a PCBU owes duties to ensure the health and safety of all workers at work in the business or undertaking:
a) who are engaged, or caused to be engaged by the PCBU
b) whose activities in carrying out work are influenced or directed by the PCBU.
There is also a duty on any person who has a duty in respect of the same matter to (so far as is reasonably practicable) consult, cooperate and coordinate activities in relation to the same matter with all other persons having a duty in relation to the same matter.
This extends to a PCBU consulting, cooperating and coordinating activities with its workers (including contractors) where duties are owed in respect of the same matter.