Regulatory guide - Other duties of PCBUs
We publish this regulatory guide to assist the organisations and entities we regulate.
The ‘health and safety duties’ imposed on 'persons conducting a business or undertaking' (PCBU) under Part 2 of the Work Health and Safety Act 2011 (WHS Act) include duties other than the ‘primary duty of care’ under section 19 of the WHS Act.
1. Duties concerning management or control
Section 20 of the WHS Act applies to a ‘person with management or control of a workplace’. This is duty applies to a PCBU to the extent that the PCBU’s business or undertaking involves the management or control, in whole or in part, of the workplace.
Section 21 applies to a ‘person with management or control of fixtures, fittings or plant at a workplace’. This is duty applies to a PCBU to the extent that the PCBU’s business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace.
PCBUs with the relevant ‘management or control’ must ensure, so far as is reasonably practicable,[1] that:
- the workplace, the means of entering and exiting the workplace and anything arising from the workplace (under section 20)
- the fixtures, fittings and plant (under section 21)
are without risks to the physical and psychological health and safety of any person.
The duties in section 20 and 21 apply in relation to a residential premises, if it is occupied for the purposes of, or as part of, the conduct of a PCBU’s business or undertaking. However, in other situations, an occupier of a residence does not owe these duties, even if they have management or control of the residence.
The duties under sections 20 and 21 may overlap with duties arising under section 19(1) and 19(2). Those duties relate to the work undertaken as part of a PCBU’s business or undertaking.[2] The focus in sections 20 and 21 on a particular workplace or the fixtures, fittings or plant at a particular workplace, may result in particular duties being owed by different persons at the same workplace.
The duties of a person who owns and controls a workplace, and the duties of a person who occupies and manages that workplace, may overlap in some respects but will also differ due to the nature of the matters each person has control over.
2. Duties concerning design, manufacture, importation, supply or installation
- Sections 22 to 26 of the WHS Act create duties for PCBUs involved in the design (section 22), manufacture (section 23), importation (section 24), supply (section 25) or installation, construction or commissioning (section 26) of plant or a structure that is to be used, or could reasonably be expected to be used as, or at, a workplace.
- a substance that is to be used, or could reasonably be expected to be used, at a workplace.
Section 8 of the WHS Act defines a ‘workplace’ as a place where work is carried out for a business or undertaking, including any place where a worker goes, or is likely to be, while at work. The wording in sections 22 to 26 reflects the fact that plant or structures can themselves constitute a workplace.
These provisions reflect that designers, manufacturers, installers, constructors, importers and suppliers of plant, structures or substances can influence the safety of these products before they are used in the workplace. These people are known as ‘upstream’ duty holders. Upstream duty holders are required to ensure, so far as is reasonably practicable, that products are made without risks to the health and safety of the people who use them ‘downstream’ in the product lifecycle. In the early phases of the lifecycle of the product, there may be greater scope to remove foreseeable hazards and incorporate risk control measures.
Specific duties are set out in the WHS Act for each type of business or undertaking. In general terms, the duties require the ‘upstream’ PCBU to ensure, so far as is reasonably practicable,[3] that the plant, substance or structure is without risks to the physical and psychological health and safety of persons who use or apply them at a workplace.
These duties may overlap with other health and safety duties, including those held by other duty holders.
3. Offences
A PCBU who does not comply with a health and safety duty imposed on it under sections 20 to 26 of the WHS Act commits an offence.[4]
There are different categories of offences for contraventions of sections 20 to 26, each carrying a different maximum penalty[5]:
- 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.[6]
- 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.[7]
- a person commits a Category 3 offence if the person 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 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.
References
[1] Section 17 of the WHS Act requires a duty holder to eliminate risks to health and safety so far as is reasonably practicable and, if it is not reasonably practicable to eliminate a risk, to minimise the risk so far as is reasonably practicable. Section 18 defines what is ‘reasonably practicable’ in relation to a duty to ensure health and safety.
[2] See Comcare’s Regulatory guide – Primary duty of Care.
[3] See footnote 1 above.
[4] The only exceptions are for a PCBU who is either an unincorporated association or a volunteer. See section 34 of the WHS Act.
[5] 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.
[6] Section 31 of the WHS Act. If the person is an individual, the maximum penalty is the category 1 monetary penalty or 15 years imprisonment or both. If the PCBU is a body corporate or the Commonwealth, the maximum penalty is the category 1 monetary penalty.
[7] Section 32 of the WHS Act. If the person is an individual, the maximum penalty is the category 2 monetary penalty. If the PCBU is a body corporate or the Commonwealth, the maximum penalty is the category 2 monetary penalty.
[8] Section 33 of the WHS Act. If the person is an individual, the maximum penalty is the category 3 monetary penalty. If the PCBU is a body corporate or the Commonwealth, the maximum penalty is the category 3 monetary penalty.
