Health and Safety Duties Under the WHS Act

The Work Health and Safety Act 2011 (WHS Act) sets out health and safety duties owed to workers and other persons (for example, contractors, clients and other visitors) at a workplace in Queensland.

A workplace includes a factory, office or building where work is carried out for a business or undertaking. However, it also extends to any place where a worker goes or is likely to be while at work, including vehicles, vessels or other mobile structures located on installations on land or afloat on water.

The core health and safety duties and obligations attach to the following persons, as defined under the WHS Act

Person conducting a business or undertaking (PCBU) meaning under the WHS Act

A PCBU is defined as a person who conducts a business or undertaking alone or with others, whether or not for profit or gain. It can include a sole trader, partnership, company, unincorporated association, or government department. 

A PCBU owes a primary duty of care, requiring duty holders to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.

A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers it has engaged and workers it influences or directs while at work in the business or undertaking.

Officer meaning under the WHS Act

An officer is a company director or company secretary and also includes a person who makes decisions that affect the whole or a substantial part of the organisation’s activities or has the capacity to significantly affect the organisation’s financial standing.

An officer of a PCBU must exercise due diligence to ensure the PCBU complies with its health and safety duties, including ensuring workers and other persons are protected from hazards and making sure the PCBU has suitable safe work systems in place.

Due diligence requires officers take reasonable steps to comply with the WHS Act. Although not required to be directly involved in implementation and day-to-day management, officers must take reasonable steps to confirm that the necessary WHS resources, processes and procedures are provided and used by the company.

Worker meaning under the WHS Act

While at work, workers also have a responsibility for work health and safety. They must take reasonable care for their own health and safety and that of others who may be affected by their acts or omissions. 

A worker must also:

  • comply, so far as is reasonably practicable, with any reasonable instruction that is given by the PCBU to comply with the WHS Act; and
  • cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers. 

Other persons under the WHS Act

Other persons at a workplace (e.g. visitors and customers) must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions.

They must also comply with, so far as they are reasonably able, any reasonable instruction that is given by the PCBU to comply with the WHS Act.

What does reasonably practicable mean under the WHS Act?

The duties imposed under the WHS Act are not limited to preventing foreseeable risks of injury. The WHS Act imposes obligations to ensure, so far as is reasonably practicable, that workplaces are without risks to the health and safety of any person.

A person who has a health and safety duty is required to, so far as is reasonably practicable:

  • eliminate risks to health and safety; or
  • if not possible to do so, minimise the risks to health and safety.

Although the phrase reasonably practicable contains ordinary words bearing their ordinary meaning, the words have been the subject of much consideration by the courts.

Courts have determined that the question of whether a control measure (an action taken to eliminate or minimise health and safety risks so far as is reasonably practicable) is or is not reasonably practicable requires no more than of a value judgment in light of all the facts.

There are three general propositions courts have adopted in relation to assessing “reasonably practicable”:

  1. the phrase “reasonably practicable” means something narrower than physically possible or feasible;
  2. what is “reasonably practicable” is to be judged on the basis of what is known at the relevant time; and
  3. to determine what is “reasonably practicable”, it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

The duty does not require a duty holder to take every possible step that could be taken. The steps that are to be taken to meet the duty are those that are reasonably practicable to achieve the provision and maintenance of a safe workplace.

If it is determined that elimination of a risk is not reasonably practicable, it is necessary to consider the hierarchy of control measures set out in the Work Health and Safety Regulation 2011.

This section provides that in minimising risks to health and safety, a duty holder must implement risk control measures, so far as is reasonably practicable, by doing one or more of the following, from highest to lowest level of protection:

  • Elimination: physically remove the hazard;
  • Substitution: replace the hazard;
  • Engineering controls: isolate people from the hazard;
  • Administrative controls: change the way work is done; and
  • Personal protective equipment (PPE): protect workers with PPE.

Need help from a WHS lawyer?

If you have duties and obligations under the WHS Act and the workplace is being investigated or prosecuted for a breach of WHS laws, it’s important that you seek legal advice from a lawyer experienced in work health and safety law.

We have the strong technical knowledge of the health and safety duties and an intimate understanding of criminal procedure, enabling us to provide clear and practical advice and robust representation.

Contact Gilshenan & Luton

Work Health & Safety Lawyers Brisbane