Rights and Responsibilities in Work Health and Safety

Contributed by Anne Aziz-Parker, with Catherine Matthews and Richard Muir and current to March 2022.

The Work Health and Safety Act 2011 imposes safety duties on all people at a workplace including:

• a person conducting a business or undertaking (PCBU);
• an officer;
• a worker; and
• other persons at a workplace.

Who is a person in control of a business or undertaking?

A person in control of a business or undertaking (sometimes referred to as a PCBU) engages a worker to carry out work in the person’s business or undertaking. A person in control of a business or undertaking may be a principal contractor who engages a sub contractor, a host organisation, a corporation, a partnership, an unincorporated association, a self employed person or a sole trader. A 'business or undertaking' includes a not-for-profit business and an activity conducted by the ACT Government.

A person is not a person in control of a business or undertaking if they are:

• engaged solely as a worker or an officer; or
• a volunteer association that has no employees and operates for community purposes.

What is the duty of a person in control of a business or undertaking?

The primary work health and safety duty of a person in control of a business or undertaking (PCBU) is to ensure the health and safety of workers, customers and visitors by providing a safe workplace and safe systems of work.

A person in control of a business or undertaking is specifically required to:

• provide a safe and healthy work environment;
• provide and maintain safe plant and structures;
• provide and maintain safe systems of work;
• ensure the safe use, handling, storage and transport of plant, structures and substances;
• ensure that plant is operated only by workers qualified to operate the plant;
• provide adequate facilities for the welfare of workers in carrying out work;
• keep information and records including incident reports and training records;
• provide any information, training, instruction or supervision that is necessary to protect persons from risks to their health and safety;
• ensure that the health of workers and the conditions of the workplace are monitored for the purpose of preventing illness or injury;
• consult with workers on matters that directly affect their safety; and
• ensure there is a current workers compensation policy.

An important obligation of a person in control of a business or undertaking is the provision of information, instruction and training about hazards in the workplace and safe work procedures to ensure work safety. All new workers must receive induction training. The purpose of induction training is for workers to gain the knowledge and skills to participate in an organisation's health and safety system at the onset of their jobs. The type and amount of information, instruction and training may vary from workplace to workplace and it may be provided verbally, in writing or via presentations. A person in control of a business or undertaking must also provide supervision to make sure health and safety instructions and procedures are understood and being followed.

There are also additional duties for a person in control of a business or undertaking who:

• manages or controls a workplace;
• controls fixtures, fittings or plant at a workplace;
• designs, manufactures, imports or supplies plant, substances or structures; or,
• installs, constructs or commissions plant or structures for a workplace.

To assist a person in control of a business or undertaking to meet their work health and safety obligations the employer may seek advice from a suitably qualified person.

For more information about the meaning of a person in control of a business or undertaking visit the Safe Work Australia website.

Who is a suitably qualified person?

‘Suitably qualified’ means having the knowledge, skills and experience to provide advice on issues that may impact the health and safety of employees. The advice must reflect the current state of knowledge on work health and safety issues so the employer can rely on this advice when controlling the risks in their workplace .

A suitably qualified person is not expected to be expert in every aspect of work health and safety but they must recognise the limits of their competence and identify for the employer when further expertise is necessary.

What is the duty of a suitably qualified person?

The suitably qualified person must be able to advise the employer about the process of identifying hazards and implementing controls to eliminate or reduce the assessed risks, and how to monitor and review those controls.

The type of person required will always depend on the circumstances for example the type of workplace and its hazards. The following matters, all of which Access Canberra may take into account, should all be considered when assessing whether a person has the skills, knowledge and experience to be suitably qualified.

• Knowledge - Can the person demonstrate they have relevant knowledge in work health and safety or a related field through the completion of education? If no formal qualifications, can the person through alternate means establish they understand the current state of knowledge on the issue and work health and safety principles and legislation?
• Industry experience - Has the person worked in the employer's industry, with employers of like size and structure, dealt with similar plant or equipment, addressed issues and evaluated the impact of possible interventions?
• Professional activity - Can the person demonstrate recent professional activity in the field of work health and safety in which they intend to provide advice? How long has the person been professionally active?
• Reputation - Is the person reputable and able to provide referees who can attest to the quality and utility of their work?
• Professional association - Is the person a member of a professional association that requires the attainment of and continuing development of certain knowledge, skills and experience for membership?
• Communication skills - Is the person able to explain what needs to be done to control any hazards or risks and write reports that are easy to understand?
• Technical expertise - If the person is monitoring conditions in the workplace, is their equipment suitable, appropriate and accurate? Does the person have the skills to use the equipment and analyse the results?
• Legislative understanding - Is the person familiar with work health and safety legislation?
• Risk management strategies - Is the person's approach consistent with the principle of ensuring the highest level of protection so far as is reasonably practicable? For example, it should focus on elimination of the risks rather than lower order controls such as using personal protective equipment or monitoring.

Who is an officer?

A business or undertaking is operated by individuals who make important decisions which determine the success or failure of health and safety initiatives and compliance by the person in control of a business or undertaking with work health and safety laws. These individuals are described as 'officers' under the Work Health and Safety Act 2011.

What is the duty of an officer?

The health and safety duty of an officer requires them to exercise due diligence. Due diligence includes taking reasonable steps to:

• acquire and keep up to date knowledge on work health and safety matters;
• understand the nature and operations of the work and associated hazards and risks;
• ensure the person in control of a business or undertaking has, and uses, appropriate resources and processes to eliminate or minimise risks to work health and safety;
• ensure the person in control of a business or undertaking has appropriate processes to receive and consider information about work related incidents, hazards and risks, and to respond in a timely manner;
• ensure the person in control of a business or undertaking has, and implements, processes for complying with their duties and obligations (for example reports notifiable incidents, consults with workers, complies with notices, provides appropriate training and instruction and ensures health and safety representatives receive training entitlements); and,
• verify the provision and use of the relevant resources and processes.

An officer can be held personally liable if they fail to exercise due diligence requirements.

For more information about the health and safety duty of an officer visit theSafe Work Australia website.

Who is a contractor?

A contractor is any company, agency, or individual contracted to provide goods, services or carry out works of any type for an organisation or a person for a set price or rate.

Contractors may be self employed, in a partnership or employ workers of their own. Workers of contractors may include:

• sub-contractors for example a bricklayer or carpenter on a construction site;
• workers of sub-contractors for example a bricklayer's labourer;
• a worker whose services are provided by a labour hire or recruitment agency such as a process worker, order picker in a warehouse, temporary receptionist or an agency nurse; and
• any persons working in a workplace over which the contractor has management and control.

What is the duty of a principal contractor?

The term 'principal contractor' applies to a person or organisation who engages a contractor to carry out work .

When a principal engages a contractor to carry out work , the principal is the person conducting the business or undertaking and the person in control of the workplace and therefore the employer of the sub-contractor. Under these circumstances the principal has the legal responsibilities of an employer towards the contractor and any workers of the contractor (or other persons engaged by the contractor). This applies as if the contractor and his or her workers were workers of the principal.

The principal's duty applies only in relation to matters over which the principal has control or the capacity to have control.

For example, a principal on a building site who engages an electrical contractor to work at height would have a duty to protect the contractor from the hazard of falling from that height. The principal would have to implement appropriate systems and ensure installation of the necessary structures to ensure that adequate fall protection was in place. However, in relation to the aspects of the electrical work for which the principal has no expertise, the principal would not have the capacity to control the way in which the work is done.

What is the duty of a sub-contractor?

In many instances, workplace relationships and work health and safety obligations are complex and overlap, especially where there are several duty holders. Contractors may have both the duties of a person conducting a business or undertaking or the person in control of the workplace (in relation to his or her own workers) and the duties of a worker (in relation to the work for the principal).

Contractors having their own workers retain the duties of a person conducting the business or undertaking or the person in control of the workplace towards those workers and must ensure their physical and psychological health and safety. Contractors and contractors' workers (or people engaged by a contractor) working for a principal contractor have the duties of a worker in relation to the work for the principal.

For example, a project management company (the principal) oversees construction of a large complex and manages many contractors and sub-contractors for the site owner. An electrician who is a worker of an independent contractor is working on site and is required to work at height. In this circumstance the site owner, the project management company and the contractor all have duties to provide a working environment for the contractor's worker, the electrician, that is safe and without risk to health.

The provision of safety measures depends on who has control of the work area and processes and must be agreed upon before the electrician commences work.

Who is an employer?

An employer, of a worker, includes a person who engages the worker to carry out work in the person's business or undertaking. A business or undertaking includes not-for-profit organisations and an activity conducted by a local, state or territory government. A person conducting a business or undertaking includes:

• employers;
• self-employed people;
• municipal corporations;
• subcontractors;
• franchisors; and
• principal contractors.

A sub-contractor can be both an employer themselves, as well as the worker of a principal contractor.

Who is a worker?

A worker is someone who carries out work for a person in control of a business or undertaking including an employee, labour hire worker, volunteer, apprentice, work experience student, subcontractor and contractor.

What is the duty of a worker?

A worker must take reasonable care for their own health and safety and ensure that they do not adversely affect the health and safety of others. A worker must also comply with any reasonable instruction given by the person in control of a business or undertaking and cooperate with their policy and procedures.

Workers can meet their health and safety duty through:

• seeking to be properly trained and instructed;
• following health and safety instructions provided by the person in control of a business or undertaking;
• correctly using personal protective equipment and clothing;
• taking care to use equipment safely and for its intended purpose;
• reporting hazards;
• reporting work related injuries or harm to health; and,
• cooperating with the person in control of a business or undertaking on health and safety matters.

Who is a volunteer?

A volunteer is a person who:

• freely offers to take part in an enterprise or undertake a task; or
• works for an organisation without being paid.

What is the duty of a volunteer?

A volunteer must take reasonable care for their own and others’ health and safety. If you are engaged by a person conducting a business or undertaking, you are a worker and must comply with any reasonable instructions, policies and procedures relevant to health and safety.

If you are an officer who is a volunteer, you must comply with health and safety duties, but you cannot be prosecuted for an offence as an officer. You may be held liable, however, if you do not comply with your duties as a 'worker' or 'other'.

A volunteer must meet the definition of a 'worker' to be a volunteer in an employment like setting. A worker is an individual who carries out work in relation to a business or undertaking, whether for reward or otherwise, under an arrangement with the person conducting the business or undertaking.

Volunteers who work in employment like settings are workers. They must be treated in the same way as all other workers and must be consulted, so far as reasonably practicable, on all matters that directly affect their health, safety and wellbeing in relation to work.

Volunteers that work in employment like settings must comply with the duties that apply to all workers under the Work Health and Safety Act 2011. They must:

• cooperate with measures a person with a duty is taking to comply with the Work Health and Safety Act 2011;
• cooperate with any work safety instructions given by the person engaging them;
• properly use any equipment supplied for work safety at their workplace; and,
• report any risk, illness or injury connected with work that they are aware of.

Volunteers in employment like settings who are most likely protected as 'workers' by the Work Health and Safety Act 2011 include a:

• parent helping in a school canteen;
• person collecting for charity;
• person delivering meals on wheels;
• person helping to run a religious organisation;
• counsellor by telephone for a charity;
• person running a private garage sale;
• person babysitting;
• parent coaching amateur sports;
• person caring for elderly relatives; and,
• person dropping off groceries for a neighbour.

It is essential that the safety, health and wellbeing of all workers are secure. Every person should be confident that they can go to work and come home safely, whether or not they are paid for their work. Volunteers make a valuable contribution to our community which must be protected, without discouraging people from volunteering or from using volunteers.

Right to refuse to do unsafe work

All workers have the right to refuse to do work that they reasonably believe is dangerous and/or puts them or others in immediate risk of serious injury or harm.

Workers must inform their supervisor, person in control of a business or undertaking and health and safety representative of their concerns. If the matter cannot be resolved using the agreed issue resolution procedure any party to the matter may request an Access Canberra work health and safety inspector to attend the workplace .

Workers who refuse to do work on reasonable grounds are entitled to the same pay and other benefits (if any) as usual. Workers who refuse to do reasonable alternate work or leave the workplace without authorisation of the person in control of a business or undertaking are not entitled to regular pay.

Who is an ‘other’ at a workplace?

‘Others’ include clients, customers and visitors. While at a workplace, others have a duty to:

• care for their own and others’ health and safety;
• take reasonable care not to adversely affect the health and safety of anyone else; and,
• comply with any reasonable instruction given by the person in control of a business or undertaking, so far as they are reasonably able.

Failure to comply with a safety duty

Under Part 2 of the Work Health and Safety Act 2011 failure to comply with work health and safety duties can lead to the following breaches and penalties:

Category 1 offence - reckless conduct

Section 31 of the Work Health and Safety Act 2011 states that a person commits a category 1 offence if:

• the person has a health and safety duty; and,
• the person engages in conduct that exposes an individual to a risk of death or serious injury; and,
• the person is reckless as to the risk.

Maximum penalty can include:

• $300,000, imprisonment for 5 years or both for an individual;
• $600,000, imprisonment for 5 years or both for an individual as a person in control of a business or undertaking or as an officer; or,
• $3,000,000 for a body corporate.

Category 2 offence - failure to comply with health and safety duty

Section 32 of the Work Health and Safety Act 2011 states that a person commits a category 2 offence if:

• the person has a health and safety duty; and,
• the person fails to comply with that duty; and,
• the failure to comply exposes an individual to a risk of death or serious injury or illness.

Maximum penalty can include:

• $150,000 for an individual;
• $300,000 for an individual as a person in control of a business or undertaking or as an officer; or,
• $1,500,000 for a body corporate.

Category 3 offence - Failure to comply with health and safety duty

Section 33 of the Work Health and Safety Act 2011 states that a person commits a category 3 offence if:

• the person has a health and safety duty; and,
• the person fails to comply with that duty.

Maximum penalty can include:

• $50,000 for an individual;
• $100,000 for an individual as a person in control of a business or undertaking or as an officer; or,
• $500,000 for a body corporate.