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Regulatory guide - Duties of all persons at a workplace

For: Employers and managers Information seekers

We publish this regulatory guide to assist the organisations and entities we regulate.


The ‘health and safety duties’ in part 2 of the Work Health and Safety Act 2011 (WHS Act) include duties imposed on all persons at a workplace, regardless of whether they are workers or are owed duties by other persons in any capacity.

1. Duties of a person at a workplace

Section 29 of the WHS Act requires that any person at a workplace must:

  • take reasonable care for his or her own health and safety
  • take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons
  • comply, so far as the person is reasonably able, with any reasonable instruction that is given by the 'person conducting a business or undertaking' (PCBU) to allow the PCBU to comply with the WHS Act and the Work Health and Safety Regulations 2011 (WHS Regulations).

These duties are similar to those of a worker under section 28. The heading of section 29 refers to ‘other persons at the workplace’, suggesting that it applies to persons other than workers. This would include, for example, members of the general public who are customers of the business or undertaking.

However, the body of section 29 clearly states that the duty applies whether or not the person has another health and safety duty under part 2 of the WHS Act, meaning that the duty is capable of applying to a worker, officer or PCBU. The only condition is that the person is ‘at a workplace’.

In broad terms, a person’s duties under section 29 reciprocate the protections they receive under duties like the primary duty of care in section 19(1) and (2).

2. Compliance

A person at a workplace who does not comply with the duties in section 29 commits an offence.[1]

More specifically, in relation to a section 29 duty owed by a person:

  • The person commits a Category 1 offence if the person, without reasonable excuse, engages in conduct that exposes an individual to whom the duty is owed to a risk of death or serious injury or illness and the person is reckless as to the risk to an individual of death or serious injury or illness.[2]
  • The person commits a Category 2 offence if the person fails to comply with the duty and the failure exposes an individual to a risk of death or serious injury or illness.[3]
  • The person commits a Category 3 offence if the person fails to comply with the duty.[4]

Category 1 and 2 offences both involve the exposure of an individual to a risk of death or serious injury or illness. It is not a component of these offences that any harm to the individual (whether death, serious injury or illness or otherwise) has actually occurred.

Category 1 offences involve the additional element of recklessness.


3. References

[1] The offence applies even if the person is a volunteer or a member of an unincorporated association. See WHS Act, section 34. Under WHS Act, section 4, a ‘volunteer’ is defined as a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).

[2] WHS Act, section 31. The penalty is $300,000 or 5 years imprisonment or both.

[3] WHS Act, section 32. The penalty is $150,000.

[4] WHS Act, section 33. The penalty is $50,000.

Page last reviewed: 16 December 2019
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 08 Jul 2020

https://www.comcare.gov.au/scheme-legislation/regulating-scheme/regulatory-guides/duties-of-persons-at-workplace