PCBU & Officers – Duty Holders Further Explained

Primary Duty of Care

The Primary Duty of Care belongs to the person conducting a business or
undertaking (PCBU) as set out in Section 19 of the WHS Act. It requires duty holders
to ensure that, 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 are
influenced or directed by the PCBU are not put at risk.

This duty includes:-

the provision and maintenance of a safe work environment,

the provision and maintenance of safe plant, structures and systems of work;

the provision of adequate facilities and the provision of any information,
training, instruction and/or supervision that is necessary to protect persons
from risks to their health and safety arising from work carried out as part of the
business or undertaking.

The primary duty of care also requires a PCBU to ensure, so far as is reasonably
practicable, that the health and safety of other persons is not put at risk from work
carried out as part of the conduct of the business or undertaking.

A ‘person conducting a business or undertaking’ and a ‘worker’ are broadly defined.
A person conducts a business or undertaking whether they conduct the business or
undertaking alone or with others and whether or not it is conducted for profit. Sub-
contractors and self-employed persons would be considered to be conducting a
business or undertaking and as such a sub-contractor would be both a worker and a
PCBU for the purposes of the WHS Act.

A ‘worker’ includes employees, a contractor or sub-contractor, an employee of a
contractor or sub-contractor, an employee of a labour hire company, an outworker,
an apprentice or trainee, a student gaining work experience and volunteers.

The application of Section 19 of the WHS Act means that all workers are owed
exactly the same primary duty of care. This is the case regardless of how they are
employed or engaged and irrespective of whether or not they are a duty holder in
their own right and they in turn owe a primary duty to their workers (i.e. Contractors
and their workers)

Reasonably Practicable

The primary duty of care in the WHS Act is subject to the qualifier ‘so far as is
reasonably practicable’. Section 18 of the WHS defines ‘reasonably practicable’.

In the WHS Act, reasonably practicable, in relation to a duty to ensure health and
safety, means that, which is or was at a particular time, reasonably able to be done
in relation to ensuring health and safety, taking into account and weighing up all
relevant matters including:

the likelihood of a hazard or the risk concerned occurring, and

the degree of harm that might result from the hazard or risk, and

what the person concerned knows, or ought reasonably to know, about:

o the hazard or risk, and
o ways of eliminating or minimising the risk, and

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.

From this definition, we can see that to take reasonably practicable steps involves
gathering the above information and using that information to determine what steps
can be taken to remove or reduce health and safety risks. You are then required to
take those steps unless the cost would be grossly disproportionate to the risk.

A PCBU’s officers must take reasonable steps to ensure that the PCBU is
complying with its duties, in particular that the PCBU is taking all reasonably
practicable steps to eliminate or minimise risks. In order to do this, an officer must
have the relevant knowledge and understanding of the above matters to make the
relevant decision or action (to meet their due diligence requirements).

Officers taking reasonably practicable steps…

What are considered reasonable steps for a particular officer will depend on the
specific circumstances of that officer, i.e. the role and influence able to be exercised
by that officer. Again, it is a question of what the officer is reasonably able to do at
the time.

Where officers sometimes rely on information from other people and the activities of
others, the officer must be able to demonstrate that this reliance is reasonable – this
could be achieved through testing of the information and/or advice they receive to
ensure it is appropriate.

There are some challenges in demonstrating compliance with these duties.

Key points in determining what is reasonable is

Ensure you have gathered all the information upon which you can make an
educated and informed decision about the particular situation.

Ensure that the information gathered is accurate and you are able to
demonstrate that consultation with the appropriate people in the business has
occurred which helped form the decisions made.

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