What are the Key Components of Non-delegable WHS Duties for Businesses?

In today's changing work environment, understanding your business's obligations under Workplace Health and Safety (WHS) regulations is crucial. Among these obligations are non-delegable duties. Grasping these duties not only helps maintain a safe workplace but also shields your business from potential legal troubles. In this blog post, we will break down the key components of non-delegable WHS duties for businesses, offering clear insights and practical tips for all professionals involved in workplace safety.

What Are Non-delegable WHS Duties?

Non-delegable duties are specific legal responsibilities that cannot be passed on to others. This concept ensures that employers and designated parties remain accountable for safety, regardless of subcontracting or outsourcing agreements. These duties create a legal obligation for businesses to protect the health and safety of their workers and anyone else affected by their operations.

Understanding these responsibilities is key to fostering a safe work environment and minimizing risks.

Understanding the Legal Framework

The legal framework for non-delegable WHS duties is unified in the Model WHS laws which were first introduced in Australia in 2011. With the exception of the state of Victoria, all Australian states and territories now operate off the Model WHS laws. The Model laws clearly outline the obligations of Persons Conducting a Business or Undertaking, the directors of such organisations, and staff that work in them.

The consequences of failing to comply with these duties can be significant. Businesses might face hefty fines, with penalties reaching up to AUD 3 million for serious breaches. Directors, CEOs, and individuals responsible for safety could face imprisonment. Beyond legal penalties, a failure to meet these duties could lead to reputational damage and loss of trust among employees and stakeholders.

The Key Components of Non-delegable WHS Duties

To navigate the landscape of non-delegable WHS duties successfully, businesses should focus on understanding these core components:

1. Duty of Care

At the core of non-delegable WHS duties is duty of care. Employers are legally required to ensure the safety and well-being of their employees on the job. This is clearly stated in Section 19 of the WHS Act. It means organisations must operate a safe workplace, manage risks, and provide appropriate training and safety measures. Every PCBU has duty of care obligations as their primary health and safety duty.

Neglecting this duty can trigger legal consequences and serious injury risks. Thus, businesses need to cultivate a strong safety culture and engage in effective risk management strategies.

Under Civil law, every human being has a "duty of care" to render assistance in social situations, such as to come to the aid of someone who has had an accident. In the workplace, workers do not have "duty of care." But they have a duty to "take reasonable care of their own health and safety" and ensure their acts or omissions don't put others at risk too. Workers must also "follow reasonable instruction" from their supervisors and managers. Duty of care in the workplace applies only to the PCBC.

2. Accountability and Responsibility

Non-delegable duties ensure the duty holder retains full accountability for their required duty or duties This means employers cannot shift responsibility onto third-party providers. For example, a factory owner is responsible for employee safety even when hiring a cleaning service.

Management should regularly review safety practices to uphold accountability. This can include conducting safety audits, offering comprehensive training sessions, and creating open communication channels where employees can report safety concerns. Keeping records of these actions help prove that business owners, directors, and CEOs are taking their legal obligations seriously.

3. Comprehensive Risk Assessments

Every business must manage workplace risks (see Clause 32 of the WHS Act 2017.) This is a non-delegable WHS duty. Directors and CEOs of the organisation have an assurance role and must ensure the organisation meets all WHS obligations. There are specific duties that apply to officers of a PCBU as stated in Section 27(5) of the WHS Act. Including the examples given in the Section, the list becomes 11 actions that business owners, directors, and CEOs must take. This includes ensuring that the business has systems and processes that manage risks and maintain controls. Collectively this is called the "WHS management system." Every business must have a WHS management system.

Directors engage their management team to conduct risk assessments with the goal of either eliminating or controlling any risks or hazards found. For instance, an office might assess risks like slip hazards from spills, ensuring clear protocols for immediate cleanup. Historical data can help, as statistics show that workplaces with regular risk assessments see a reduction in incidents by up to 30%.

4. Training and Support

A PCBU must provide adequate training and support to its employees so that those employees who represent the primary duty holder can carry out their role and activities that by doing so demonstrate the primary duty holder's ownership of their non-delegable duty.

Many organizations conduct annual refresher training, which has been shown to significantly enhance the workforce's preparedness and responsiveness to safety issues. Regular training sessions can be on topics such as first aid, fire safety, and equipment use.

5. Supervision

It is not enough to put staff through various courses of training, thereby accumulating certificates and tickets, and then "leave them to it." Businesses must ensure that workers understand safety protocols and follow the rules and procedures around risks that have been managed by controls rather than by elimination. This is achieved by supervision. In addition to training and support, a PCBU must provide supervision of its staff. The officers of the business must be actively over this.

Supervisors are classified as "workers" under the WHS laws. They are not responsible for managing risks (this is the duty of the PCBU) but they are responsible for supervising staff to follow the rules and procedures that are in place for risks that are managed. Managers, supervisors, and workers all contribute to managing risks by providing their knowledge and experience to help the business make the big decisions and take the best actions.

The Benefits of Understanding Non-delegable WHS Duties

Recognizing the importance of non-delegable WHS duties can offer several benefits for businesses:

• Enhanced Safety Culture: Implementing these duties fosters a robust safety culture, improving employee morale and productivity.

• Reduced Legal Risks: Awareness of these responsibilities helps lower the chances of facing legal consequences, allowing organizations to manage their compliance better.

  
  

• Trust and Reputation: A business prioritizing workplace safety builds trust with employees, clients, and stakeholders, enhancing its reputation in the industry.

  
  

Final Thoughts

Grasping non-delegable WHS duties is essential for any business aiming to ensure safety and compliance in the workplace. By understanding their legal obligations, employers can create a safer working environment, reduce risks, and fulfil their responsibilities to their teams.

As laws and regulations continue to evolve, businesses must stay proactive about their non-delegable WHS duties. Ensuring workplace safety not only protects employees but also contributes to the overall success and integrity of the organization.

Prioritizing workplace safety is more than compliance; it’s about creating a thriving, secure environment for everyone involved. Understanding non-delegable WHS duties lays the foundation for sound safety management and the sustainability of your business in the long run.

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.