Regulatory guide - Primary duty of care

The 'health and safety duties' found in sections 19 to 29 are the core duties imposed by the Work Health and Safety Act 2011 (WHS Act).

They include the 'primary duty of care' imposed on 'persons conducting a business or undertaking' (PCBU) by section 19 of the WHS Act.

1. Primary duty of care to workers

Under section 19(1) of the WHS Act, a PCBU must ensure, so far as is reasonably practicable,^[1] the health and safety of workers who are at work in the business or undertaking, whether they be workers:

• engaged, or caused to be engaged, by the person
• whose activities in carrying out work are influenced or directed by the person

PCBUs owe duties to people beyond those traditionally considered as ‘employees’. Expressions like ‘engaged by the person’, ‘caused to be engaged by the person’ and ‘influenced or directed by the person’ reflect the different relationships a PCBU may have with different types of ‘workers’ as defined in section 7 of the WHS Act.^[2]

‘At work’

The primary duty is not limited to a worker’s presence at a particular workplace. Instead, the duty relates to the physical and psychological health and safety of workers when they are ‘at work’.

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,^[3] it is possible that 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.

2. Primary duty of care to other persons

Section 19(2) requires a PCBU to ensure, so far as is reasonably practicable,^[4] that the physical and psychological health and safety of other persons—any person other than the workers protected under section 19(1)—is not put at risk from work carried out as part of the conduct of the business or undertaking.

‘From work’

Again, the duty is not referable to a particular workplace. Rather, the duty to other persons relates to risks to physical and psychological health and safety ‘from work’. These words are not defined in the WHS Act. However, section 19(2) could potentially apply in a broad-ranging way in relation to any risk to health or safety arising from work activities.

In practical terms, there is likely to be considerable overlap between risks arising for workers and risks relating to other persons.

3. Primary duty of care: What is 'reasonably practicable'?

What is reasonably practicable to ensure physical and psychological health and safety is defined in the WHS Act.^[5] What is ‘reasonably practicable’ in relation to a health and safety duty is that which is, or was at a particular time, reasonably able to be done to ensure health and safety. It includes taking into account and weighing up certain matters, including:

• the likelihood of the hazard or the risk concerned occurring;
• the degree of harm that might result from the hazard or the risk;
• what the person concerned knows, or ought reasonably to know, about:
  • the hazard or the risk; and
  • ways of eliminating or minimising the risk;
• the availability and suitability of ways to eliminate or minimise the risk; and
• after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

When Comcare inquires into whether a PCBU has taken ‘reasonably practicable’ measures, its inquiries will focus on hazards and risks which arise at or from work performed in the conduct of the business or undertaking, and are primarily directed towards determining whether the PCBU has provided, so far as is reasonably practicable:

• an appropriate system of work to manage workplace hazards and risks; and
• any information, training, instruction or supervision necessary to protect all persons from risks to their physical and psychological health and safety.

When considering what is ‘reasonably practicable’ to meet its duties to other persons, PCBUs should consider the degree of interaction with other persons, and the ability to influence and control any risks posed by the conduct of the PCBU’s business or undertaking.

A PCBU’s duty to avoid risks to other persons may include recipients of services or benefits provided by the PCBU.

4. Primary duty of care: specific measures

Section 19(3) of the WHS Act sets out specific measures that a PCBU is required to take to satisfy the primary duty of care. In particular, the PCBU must ensure, so far as is reasonably practicable:

• the provision and maintenance of a work environment without risks to physical or psychological health and safety.
• the provision and maintenance of safe plant and structures.
• the provision and maintenance of safe systems of work.
• the safe use, handling and storage of plant, structures and substances.
• the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities.
• the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking.
• that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

These specific measures are within the scope of the general duties owed under section 19(1) and 19(2) of the WHS Act and section 19(3) does not limit those general duties.

5. Primary duty of care: accommodation

Section 19(4) of the WHS Act creates a specific duty where a worker occupies accommodation that is owned by, or under the management or control of, a PCBU, and the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available.

The PCBU is required, so far as is reasonably practicable, to maintain the premises so that the worker is not exposed to risks to physical or psychological health and safety.

6. Primary duty of care: self-employed persons

Section 19(5) of the WHS Act specifies that a self-employed person must ensure, so far as is reasonably practicable, his or her own physical and psychological health and safety while at work.

7. Offences

A PCBU who does not comply with its primary duty of care under section 19 of the WHS Act commits an offence. ^[6]

There are different categories of offences for contraventions of duties in Part 2 of the WHS Act, which includes section 19, each carrying a different maximum penalty^[7]:

• 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.^[8]
• 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.^[9]
• a person commits a Category 3 offence if the person fails to comply with the duty.^[10]

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.