Introduction

The new Work Health & Safety legislation (WHS Act & Regulations) has come into effect on 1 January 2012 that will harmonize OHS laws across jurisdictions in which the new harmonization each state and territory will enact their own laws to mirror these model laws.

Under the new WHS legislation the employer / employee determination of who has duties and obligations and who is to be protected from risks to their health and safety significantly changes to a more encompassing concept of PCBUs i.e. persons in control of a business or undertaking.  This means a broader definition of workers that extends beyond the employment relationship to include any person who works in any capacity in or as part of the business or undertaking including an employee, labour hire staff, volunteer, apprentice, work experience student, subcontractor and contractor.

For first time in relation to health & safety a specific positive duty of care for officers (due diligence) has been introduced. The definition of officer under the Corporations Act now applies to PCBU officers i.e. senior management with decision making responsibilities and where Officer duties cannot be delegated.

The new positive duty of care requires officers to:

  • Acquire & keep up to date knowledge of WHS
  • Understand the nature of their business operations, hazards & risks
  • Use appropriate resources to eliminate or minimize risk
  • Have appropriate processes for receiving & considering information & respond in timely manner
  • Implement processes for compliance
  • Verify that risks & hazards are being appropriately controlled

The PCBU primary duty of care requires that the PCBU must ensure the health and safety of workers, customers and visitors by eliminating or minimising risks at the workplace. The PCBU duty of care is determined by activities. A PCBU will owe a health and safety duty if in the course of conducting the business or undertaking if it:

  • Engages or causes to be engaged (through sub-contracting) a worker to carry out work
  • Directs or influences work carried out by a worker
  • Has the management or control of the workplace in which work is done
  • Designs, manufactures, imports, supplies, installs, commissions or constructs plant or structures or substances for use as or at a workplace

In summary the PCBU will attract a health & safety duty if it arranges for work to be done, directs or influences it or contributes something for the work to be done.   The WHS legislation clarifies the perception held by some that when working with other parties such as production companies in making a television commercial or with photographers & studios that they do not have a duty of care for all engaged. Under the WHS legislation all parties are multiple duty holders with a shared primary duty of care.   Consultation now plays a more significant role and now requires not only consultation by PCBUs with their workers but also a legal requirement to consult with other PCBUs.  The PCBU consultation obligations are far wider than existing provisions under current legislation as the duty of care to consult is not simply owed to employees but rather to the far broader category of workers.