Regulatory guide - Primary duty of care

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, there is likely to be considerable overlap between risks arising for workers and risks relating to other persons.

What is reasonably practicable to ensure health and safety is defined in the WHS Act.^[1] When considering what is reasonably practicable to meet its duties to other persons, PCBUs should consider the degree of interaction with other persons, and the ability to influence and control any risks posed by the conduct of the PCBU’s business or undertaking.

Comcare’s enquiries will focus on hazards and risks which arise at or from a workplace, and are primarily directed towards determining whether the PCBU has provided, so far as is reasonably practicable:

• an appropriate system of work to manage workplace hazards and risks, and
• any information, training, instruction or supervision necessary to protect all persons from risks to their health and safety.

A PCBU’s duty to avoid creating risks to other persons may include recipients of services or benefits provided by the agency or organisation. Comcare may make more limited enquiries into these matters, as other review bodies may be the more appropriate avenue to lodge complaints or seek review of decisions. These bodies may include the Commonwealth Ombudsman, Courts and Tribunals.

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.