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Duties of workers

The ‘health and safety duties’ in Part 2 of the Commonwealth Work Health and Safety Act 2011 (WHS Act) include reciprocal duties imposed on workers. While the WHS Act aims to protect workers against harm to their health, safety and welfare, workers must also contribute to this aim.

1. Duties of a worker

Section 28 of the WHS Act imposes four specific duties on a worker. While at work, the worker 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 worker 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 Commonwealth Work Health and Safety Regulations 2011 (WHS Regulations)
  • co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

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.[1]

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,[2] 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.

In broad terms, a worker’s duties under section 28 reciprocate the protections they receive under duties like the primary duty of care in section 19(1).

2. Compliance

A worker who does not comply with a duty imposed on him/her under section 28 commits an offence.[3]

More specifically, in relation to a section 28 duty owed by a worker:

  • The worker commits a Category 1 offence if the worker, 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 worker is reckless as to the risk to an individual of death or serious injury or illness.[4]
  • The worker commits a Category 2 offence if the worker fails to comply with the duty and the failure exposes an individual to a risk of death or serious injury or illness.[5]
  • The worker commits a Category 3 offence if the worker 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.

3. References

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

[2] 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.

[3] The offence applies even if the worker 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).

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

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

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

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Page last updated: 01 Jul 2016