WHS "101"

Weekly WHS Article 15th November 2022

• It is the duty of the person conducting a business or undertaking (PCBU) to manage risks in the workplace. [Ref 1] The "Person" in PCBU is not a person as a "human being." In a Legal sense, a "Person" also means a business entity. A PCBU is therefore a business entity that employs staff in a commercial undertaking.

• The PCBU must identify reasonably foreseeable hazards, assess their risks, and eliminate (or use risk control measures if not possible to eliminate) risks and hazards in their workplace. [Ref 1]

• The PCBU has the primary duty of care in the workplace. Workplace health and safety risk management is entirely the responsibility of the PCBU in the first place. [Ref 2.]

• It is the PCBU who must put in place and maintain, an effective WHS risk management system. [Ref 2]

• Business owners and company directors (officers of the PCBU) have the duty to oversee and ensure that the PCBU is complying with WHS law. [Ref 3] These are non-delegable duties. They have to commit to these actions personally and cannot pass them off to someone else lower on the command chain or subcontract them to an outside business. They use their leadership team to help them, and they may employ advisors and consultants as resources, but the duty in the first place is always theirs. [Ref 4]

• If the PCBU cannot eliminate a risk, the PCBU must implement risk control measures to minimise that risk so far as is reasonably practicable. [Ref 5]

• Before making any decisions on proposed controls or actions to resolve a WHS matter, all workers who might be affected by the matter must be consulted by the business first and their contributions to the resolution of those matters taken into consideration. [Ref 6]

• Once those controls have been created, the PCBU must ensure that staff and visitors know about and comply with those controls. Signage, instruction, information, and training may help educate all persons in the workplace. Once again, it is up to the business owners and company directors (as officers of the PCBU) to ensure this occurs. [Ref 8]

• Workers (and anyone else present at the work site) have a duty to take reasonable care for their own health and safety and comply with instructions and supervision. This means they must follow the rules. Staff must be supervised to this end. [Ref 7]

• Risks controls must be maintained and periodically reviewed. [Ref 8] If a risk control needs modification or changing, the risk must be re-assessed, and the WHS risk management process revisited. [Ref 9]

This interaction between the PCBU, officers of the PCBU, workers and their supervisors and managers, paints a very clear picture of what a WHS risk management system should be and how it functions for the betterment of all. This symbiotic relationship is the essence of work health and safety law and a safe and well work environment operationally.

References

Ref 1. WHS Regulation Clause 32-38 Managing risks to health and safety

Ref 2. WHS Act Section 19 Primary duty of care

Ref 3. WHS Act Section 27 Duties of officers

Ref 4. WHS Section 14 Duties not transferrable,

WHS Section 272 No contracting out

Ref 5. WHS Act Section 17 Management of Risks,

Section 18 Reasonably Practicable

Ref 6. WHS Act, Section 47 Duty to consult workers

Ref 7. WHS Act, Section 28 Duty of workers,

WHS Act, Section 29 Duties of others Ref 8. WHS Regulation, Clause 37 Maintenance of control measures, Ref 9. WHS Regulation, Clause 38 Review of control measures

17th November 2022 (Revised 31 July 2024)