Understanding the WHS Act: Duties of Care – Part 1
By Joanna Weekes
Any one who operates a business will now be a ‘person conducting a business or undertaking’ (PCBU). A PCBU has an absolute duty to take all reasonably practicable steps to ensure the health and safety of workers and other persons impacted by the business or undertaking.
Reasonably practicable steps means those available ways of eliminating or minimising the risk of injury after having considered a number of relevant matters together, such as the likelihood and severity of the risk and the means to control it, weighed against the costs associated with eliminating or minimising the risk.
A PCBU whose activities include the management or control of workplaces, fixtures, fittings and plant must ensure, so far as is reasonably practicable, that the workplace and anything arising out of it are without risks to health and safety.
Notification of incidents:
A PCBU must report immediately to the regulator any workplace incident that involves the death of a person, serious illness or injury, or exposure to a serious risk to a person’s health or safety.
In most cases, a person with control of a workplace must ensure, so far as is reasonably practicable, that the site of the incident is not disturbed until the inspector arrives or as otherwise directed by an inspector. Records of such workplace incidents must be maintained for at least 5 years. Notification must be by telephone or in writing in approved form.
An officer of a PCBU has a positive duty to exercise ‘due diligence’ to ensure that the PCBU complies with its safety obligations. Officers must be proactive and owe a continuous duty to ensure compliance.
Officer means a director or person who makes or participates in the decision-making of the business or who has the capacity to significantly affect the business’ financial standing, e.g. senior or operational management.
Due diligence means an officer must acquire and keep up-to-date knowledge of work, health and safety matters and ensure the PCBU has, and implements, processes for complying with the PCBU’s obligations.
The standard of care required will depend on the position and influence of the officer within the PCBU.
A worker has a duty to take reasonable care for their own health and safety while at work and also to take reasonable care so that their conduct does not adversely affect the health and safety of other persons at the workplace.
Reasonable care is proportionate to the level of control a worker is able to exercise over his or her work activities in a work environment. The more control a worker has over a work practice, the more care they need to exercise. Workers must comply with reasonable directions and instructions as well as cooperate with any reasonable policy or procedure of the PCBU.
Designers, manufacturers, importers, suppliers:
A person who designs, imports, supplies, installs, constructs or commissions or manufactures plant, substances or structures has a separate duty of care.
Those businesses must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risk to health and safety of persons including those who use the plant, substance or structure for its primary intended purpose. This duty of care also extends to those persons involved in carrying out other reasonably foreseeable activities related to the intended purpose such as storage, decommissioning, dismantling, demolition or disposal.
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