WHS Due Diligence for CEO’s, Directors and Managers – NSW Edition
Topic 3 – Duty Holders & Due Diligence
PCBU DUTIES
PCBUs are for example: Employers, self employed (sole trader), principal contractors, businesses who design, manufacture, import, supply plant, substances and structures used at work, businesses who control workplaces, fixtures, fittings, plant at workplaces.
The PCBU has Primary Duty of Care.
Primary Duty of Care (Section 19 WHS Act 2011)
A person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of
- workers engaged, or caused to be engaged by the person, and
- workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
- other persons who may be put at risk from work carried out as part of the conduct of the business or undertaking.
PCBU must ensure, so far as is reasonably practicable;
- the provision and maintenance of a work environment without risks to health and safety, and
- the provision and maintenance of safe plant and structures, and
- the provision and maintenance of safe systems of work, and
- the safe use, handling, and storage of plant, structures and substances, and
- 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, and
- 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, and
- 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.
The above duties are called Primary Duty of Care
Other PCBU duties
- Consultation with workers and other PCBUs
- Resolving WHS issues
- Complying with specific regulations that apply to your business
- Notifying notifiable incidents to the regulator
Further duties of PCBUs: (Sections 20 – 26 WHS Act 2011)
- PCBUs with management or control of a workplace
- PCBUs with management or control of fixtures, fittings or plant at a workplace
- PCBUs that design plant, substances or structures
- PCBUs that manufacture plant, substances or structures
- PCBUs that import plant, substances or structures
- PCBUs that supply plant, substances or structures
- PCBUs that install, construct or commission plant or structures,
have specific duties depending on the nature of their business. For example, a PCBU that manufactures a hazardous chemical must create and make available a Safety Data Sheet to those who may be affected by that chemical.
OFFICER DUTIES
Who is an Officer
The definition of an Officer includes a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or who has the capacity to affect significantly the corporation’s financial standing. The full definition of an Officer can be found in the Corporations Act 2001.
Persons at the level of Director, General Manager, Secretary, CEO etc. are deemed an Officer of the organization. Senior Managers may also be deemed to be Officers. Being an Officer is dependent on the the level of authority and/or influence a person has within the organization.
Duty of Officers
An Officer of the PCBU must exercise Due Diligence to ensure the PCBU meets its Primary Duty of Care. The duty of an Officer is to the PCBU.
What is Due Diligence (Section 27(5) WHS Act 2011)
| Due Diligence |
| (a) to acquire and keep up-to-date knowledge of work health and safety matters, and |
| (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and |
| (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and |
| (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and |
| (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and
Example. For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:
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| (f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e). |
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Note: Duties under the WHS Act Can Not Be Transferred to Another Person (WHS Act s14) |
Examples of how these duties could be implemented.
a) Acquire safety knowledge and keep up to date
- Understand what the WHS Act, Regulations and Codes require
- Understand and ensure strategies and processes for managing hazards & risks
- Address WHS in senior management meetings, attend seminars etc.
b) Gaining an understanding of business health and safety risks
- Get advice from suitably qualified persons
- Ensure suitable WHS expertise is retained
- Regularly review and improve your safety management systems
- Share safety information with others
c) Ensure resources and processes to eliminate/minimize risks
- Understanding what is needed for Health and Safety
- Making decisions regarding procedures and resources
- Ensure resources are used and are effective
- Act on unsafe practices / workplace incidents
d) Processes to receive, consider and respond to information regarding incidents, hazards & risks
- Timely reporting of incidents, hazards, risks, implement risk management approach in all business activities
- Identifying actions required and taken, to eliminate or minimize hazards/risks
- Measure effectiveness of risk management processes
- Ensure regular reporting on safety performance
e) Ensure and implement processes to ensure compliance with these duties
- Reporting of notifiable incidents to SafeWork NSW immediately
- Consulting with Workers
- Provision of Health and Safety training, instruction, information and training
f) Verify & review WHS processes and use of resources
- Verify implementation, use of processes, systems and their effectiveness
- Inspection, audit processes
- Personal involvement in safety initiatives
WORKER DUTIES
Who is a Worker? (Page 8 WHS Act 2011)
A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as
- an employee (in any capacity including as Officer)
- a contractor or subcontractor
- an employee of a contractor or subcontractor
- an employee of a labour hire company assigned to work for the PCBU
- an outworker
- an apprentice or trainee
- a student on work experience
- a volunteer
Being a Worker for a PCBU does not depend on an employer – employee relationship.
Duties of a Worker: (Section 28 WHS Act 2011)
- take reasonable care for his or her own health and safety, and
- take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
- comply, so far as the worker is reasonably able, with any reasonable instruction that
- is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
- co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
DUTIES OF OTHERS (Visitors, customers, clients, passers-by etc.)
- take reasonable care for his or her own health and safety, and
- take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
- comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.
Self Employed Persons
Must ensure their own health and safety (as far as is reasonably practicable) while at work.
Self-employed persons are also considered to be PCBUs.