Regulatory guide - Duties of workers

The ‘health and safety duties’ in Part 2 of the 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. However, the duties of workers under the WHS Act do not alter the duties of other persons, including ‘persons conducting a business or undertaking’ (PCBU), officers or other persons at the workplace. More than one person may have a concurrent duty, and duties cannot be transferred, including from a PCBU to a worker.^[1]

A ‘worker’ is a person who carries out work in any capacity for a PCBU. They may be:^[2]

• an employee.
• a contractor or subcontractor.
• an employee of a contractor or subcontractor.
• an employee of a labour hire company who has been assigned to work in the PCBU.
• an outworker.
• a volunteer.
• an apprentice, trainee, or work experience student.

Section 7 of the WHS Act also defines certain types of workers with statutory functions and also defines when those workers are ‘at work’.^[3]

1. Duties of a worker

Section 28 of the WHS Act imposes four duties on a worker. While at work, a worker must:

• take reasonable care for their own physical and psychological health and safety.
• take reasonable care that their acts or omissions do not adversely affect the physical and psychological health and safety of other persons.
• comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the WHS Act.
• 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.

There is no general definition of the term ‘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,^[4] a worker could be at a workplace without being ‘at work’.

It is not possible to state definitively when a worker is ‘at work’. However, a worker is ordinarily ‘at work’ when the worker is performing the duties or functions for which they were 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 complement the protections they receive under a PCBU’s health and safety duties [for example, the primary duty of care in section 19(1)].

2. Offences

A worker who does not comply with a duty imposed on them under section 28 commits an offence.^[5]

There are different categories of offences that may be committed for contraventions of section 28, each carrying a different maximum penalty^[6]:

• a 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 engages in the conduct with negligence or is reckless as to the risk to an individual of death or serious injury or illness.^[7]
• a 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.^[8]
• The worker commits a Category 3 offence if the worker fails to comply with the duty.^[9]

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.