WHS duties are non-delegable
The Model WHS laws could be said to be built around four foundational principles. They are:
There are WHS duty holders. These are specifically identified in the WHS Act as the PCBU, Officers of the PCBU, Workers, and Others. (see ref 1)
WHS duty holders have specific duties. Duty holders may have more than one duty and some duties may even be the same as other duty holders. The duties that apply to each duty holder are stated in each of the Sections of the WHS Act that pertain to those duty holders.
Duty holders can be in multiple classes of duty holder. For example, an Officer of a PCBU can also be a “worker” when acting in the capacity of a worker. They would be expected to fulfil their WHS duties as a worker when working in that capacity.
WHS duties are non-delegable. A non-delegable duty is a legal obligation that cannot be transferred to another party. Even if the task is delegated, the original party remains responsible for ensuring it is performed correctly. This concept is often used to justify holding one person liable for the negligence of another to whom they have entrusted a task.
On point 4 above there are two mentions in the WHS Act of how this applies:
Section 14 of the WHS Act says: “A duty cannot be transferred to another person.”
Section 272 of the Act says: “A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.”
It would be unreasonable and impracticable to expect CEOs and directors to manage all of their Officer duties personally. They use their leadership team and consultation procedures to assist with complying with their duties. This does not mean they are trying to pass over their responsibilities. Directors and CEOs cannot run the company by themselves. They rely on their people to be able to operate the WHS management system.
Some businesses engage external consultants to help with their WHS management system. Consultants may advise and help directors and CEOs comply with their WHS duties. Again, there is no provision for business owners to give up these responsibilities to outside contractors and “have no more to do with it.”
When all WHS duty holders do what they are meant to do we get happy, safe and well workplaces where maximum productivity can occur.
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
Note
Ref 1. Section 19 of the WHS Act applies to the PCBU. Section 27 of the Act applies to Officers of the PCBU. Section 28 of the Act applies to workers (employees.) Section 29 applies to "others" including visitors, customers and service people who attend site.
Weekly WHS Article 20th October 2022
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