Regulatory guide - Other duties of PCBUs

The ‘health and safety duties’ imposed on 'persons conducting a business or undertaking' (PCBU) under part 2 of the Work Health and Safety Act 2011 (WHS Act) include duties other than the so-called ‘primary duty of care’.

1. Duties concerning management or control

Section 20 of the WHS Act applies to a ‘person with management or control of a workplace’, which is defined for the purposes of the section to mean a PCBU to the extent that the PCBU’s business or undertaking involves the management or control, in whole or in part, of the workplace.

Section 21 applies to a ‘person with management or control of fixtures, fittings or plant at a workplace’. For the purposes of section 21, this is defined as a PCBU to the extent that the PCBU’s business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace.

PCBUs with the relevant management or control must ensure, so far as is reasonably practicable,^[1] that:

• the workplace, the means of entering and exiting the workplace and anything arising from the workplace (under section 20)
• the fixtures, fittings and plant (under section 21)

are without risks to the health and safety of any person.

The duties in section 20 and 21 do apply in relation to a PCBU’s residence, if it is occupied for the purposes of, or as part of, the conduct of the PCBU’s business or undertaking. However, in other situations, an occupier of a residence does not owe these duties, even if they have the relevant management or control.

In many situations, the duties under sections 20 and 21 will overlap with duties arising under section 19(1) and (2). Those duties focus on the work undertaken as part of a PCBU’s business or undertaking. The focus in sections 20 and 21 on a particular workplace or the fixtures, fittings or plant at a particular workplace may result in different duties being owed by different persons.

2. Duties concerning plant, substances or structures

Sections 22–26 of the WHS Act create duties in relation to:

• plant, a substance or a structure that is to be used, or could reasonably be expected to be used at a workplace
• plant or a structure that is to be used, or could reasonably be expected to be used, as a workplace.

In section 8 of the WHS Act, a ‘workplace’ is defined as a place where work is carried out for a business or undertaking, including any place where a worker goes, or is likely to be, while at work. The wording in sections 22–26 reflects the fact that plant or a structure can themselves constitute a workplace.

In relation to the plant, substance or structure, the duties in sections 22–26 apply to a PCBU whose business or undertaking involves its design (section 22), manufacture (section 23), importation (section 24), supply (section 25) or installation, construction or commissioning (section 26).

Specific duties are set out in the WHS Act for each type of business or undertaking. In general terms, however, the duties require the PCBU to ensure, so far as is reasonably practicable,^[2] that the plant, substance or structure is without risks to the health and safety of persons who use or apply them at a workplace in a reasonably foreseeable manner.

These duties may overlap with other health and safety duties. However, by making the plant, substances and structures the reference point for the duties will often mean that sections 22–26 impose different duties on different persons.

3. Compliance

A PCBU who does not comply with a health and safety duty imposed on it under sections 20–21 concerning management or control or sections 22–26 concerning plant, substances or structures commits an offence.^[3]

More specifically, in relation to a duty owed by a PCBU under sections 20–26:

• 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.^[4]
• 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.^[5]
• The PCBU commits a Category 3 offence if the PCBU fails to comply with the duty.^[6]

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.