Regulatory guide - Duties of all persons at a workplace
We publish this regulatory guide to assist the organisations and entities we regulate.
The ‘health and safety duties’ in Part 2 of the Work Health and Safety Act 2011 (WHS Act) imposes duties on all persons at a workplace, regardless of whether the person has other health and safety duties.
1. Duties of a person at a workplace
Section 29 of the WHS Act requires that any person at a workplace 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 person 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.
These duties are similar to those of a worker under section 28. Section 29 applies to all persons at a workplace. This includes, for example, members of the general public who are customers of the business or undertaking and any other visitor to a workplace including a PCBU.
An individual’s duties under section 29 complement the protections they receive under duties like the primary duty of care in section 19(1) and (2).
2. Offences
A person at a workplace who does not comply with the duties in section 29 commits an offence.
There are different categories of offences that may be committed for contraventions of section 29, each carrying a different maximum penalty[1]:
- a person commits a Category 1 offence if the person, 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 person engages in the conduct with negligence or is reckless as to the risk to an individual of death or serious injury or illness.[2]
- a person commits a Category 2 offence if the person fails to comply with the duty and the failure exposes an individual to a risk of death or serious injury or illness.[3]
- a person commits a Category 3 offence if the person fails to comply with the duty.[4]
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 an element of these offences that any harm to the individual (whether death, serious injury or illness or otherwise) has in fact occurred.
Category 1 offences involve the fault elements of negligence or recklessness.
3. References
[1] The maximum penalty is referred to in the offence provision and the monetary amount of the stated penalty is identified in Schedule 4 – Penalty Amounts - of the WHS Act. The operation of Schedule 4 is discussed in Comcare’s Penalties Regulatory Guide.
[2] Section 31 of the WHS Act. The maximum penalty is the category 1 monetary penalty or 15 years imprisonment or both.
[3] Section 32 of the WHS Act. The maximum penalty is the category 2 monetary penalty.
[4] Section 33 of the WHS Act. The maximum penalty is the category 3 monetary penalty.
