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Regulatory guide - Primary duty of care

For: Employers and managers Information seekers

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


The 'health and safety duties' found in sections 19–29 are the core duties imposed by the Work Health and Safety Act 2011 (WHS Act).

They include the so-called 'primary duty of care' imposed on 'persons conducting a business or undertaking' (PCBU) by section 19 of the WHS Act.

1. Primary duty of care towards workers

Under section 19(1), a PCBU must ensure, so far as is reasonably practicable,[1] the health and safety of:

  • workers engaged, or caused to be engaged, by the person
  • 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.

Expressions like ‘engaged by the person’, ‘caused to be engaged by the person’ and ‘influenced or directed by the person’ reflect the different relationships a PCBU may have with different types of ‘worker’ within the definition in section 7.

The duty is not defined in terms of presence at a particular workplace. Instead, the duty relates to the health and safety of workers when they are ‘at work’.

For some specific types of worker who have certain statutory duties or functions, section 7 provides that the worker is ‘at work’ throughout the time when the worker is on duty or lawfully performing the relevant functions, but not otherwise.[2]

However, there is no general definition of ‘at work’ in the WHS Act. While a ‘workplace’ is defined to include a place where a worker goes, or is likely to be, while at work,[3] it is possible that a worker could be at a workplace without being ‘at work’.

While it is not possible to state definitively when a worker is ‘at work’, a reasonable approach, derived from words in section 7, is to say that a worker is ‘at work’ in relation to a PCBU when he or she is performing the duties or functions for which the worker was engaged or caused to be engaged by the PCBU or is carrying out work under the PCBU’s influence or direction.

2. Primary duty of care towards other persons

Section 19(2) requires a PCBU to ensure, so far as is reasonably practicable,[4] that the health and safety of other persons—for example, persons other than the workers protected under section 19(1)—is not put at risk from work carried out as part of the conduct of the business or undertaking.

Again, the duty is not referable to a particular workplace. Rather, the duty to other persons relates to risks to health and safety ‘from work’. These words are not defined in the WHS Act. Depending on their scope, section 19(2) could potentially apply in a broad-ranging way.

In practical terms, however, there may be few risks relating to other persons that a PCBU would not need to consider in relation to workers.

3. Primary duty of care: specific measures

Section 19(3) sets out some more specific measures that a PCBU is required to take. In particular, the PCBU must ensure, so far as is reasonably practicable:

  • the provision and maintenance of a work environment without risks to health and safety
  • the provision and maintenance of safe plant and structures
  • the provision and maintenance of safe systems of work
  • the safe use, handling and storage of plant, structures and substances
  • the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities
  • the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
  • that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

These specific measures may well be within the scope of the duties in section 19(1) and (2). Section 19(3) states that they do not limit those more general duties.

4. Primary duty of care: accommodation

Section 19(4) creates a specific duty where a worker occupies accommodation that is owned by, or under the management or control of, a PCBU, and the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available.

The PCBU is required, so far as is reasonably practicable, to maintain the premises so that the worker is not exposed to risks to health and safety.

5. Primary duty of care: self-employed persons

Section 19(5) specifies that a self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

6. Compliance

A PCBU who does not comply with the primary duty of care imposed on it under section 19 commits an offence.[5]

More specifically, in relation to the primary duty of care owed by a PCBU under section 19:

  • The PCBU commits a Category 1 offence if the PCBU, 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 PCBU is reckless as to the risk to an individual of death or serious injury or illness.[6]
  • The PCBU commits a Category 2 offence if the PCBU fails to comply with the duty and the failure exposes an individual to a risk of death or serious injury or illness.[7]
  • The PCBU commits a Category 3 offence if the PCBU fails to comply with the duty.[8]

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.


References

[1] WHS Act, section 17 is headed ‘Management of risks’, It provides that a duty imposed on a person to ‘ensure health and safety’ requires 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. Section 18 sets out how to determine what is ‘reasonably practicable’ in relation to a duty to ensure health and safety.

[2] WHS Act, section 7(2)(b), (2A)(b), (2B)(b), (2C)(b), (2D)(b) and (2E)(b).

[3] WHS Act, section 8(1) provides that a ‘workplace’ is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

[4] See footnote 1 above.

[5] If a PCBU is a volunteer or an unincorporated association, they will not commit an offence if they fail to comply with the primary duty of care. 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).

[6] WHS Act, section 31. If the PCBU is an individual, the penalty is $600,000 or 5 years imprisonment or both. If the PCBU is a body corporate or the Commonwealth, the penalty is $3,000,000.

[7] WHS Act, section 32. If the PCBU is an individual, the penalty is $300,000. If the PCBU is a body corporate or the Commonwealth, the penalty is $1,500,000.

[8] WHS Act, section 33. If the PCBU is an individual, the penalty is $100,000. If the PCBU is a body corporate or the Commonwealth, the penalty is $500,000.

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 05 Jul 2020

https://www.comcare.gov.au/scheme-legislation/regulating-scheme/regulatory-guides/primary-duty-of-care