Litigation, Disputes and Employment
The Health and Safety at Work Act 2015 (HSWA) introduces the term Person Conducting a Business or Undertaking or a PCBU. Most businesses (with the exception of volunteer associations) will be a PCBU and will have the primary duty under the Act together with a number of other duties - some of which depend on the actual involvement the PCBU has in relation to a workplace.
To ensure that PCBU's are complying with their duties any person who is deemed to be an Officer in relation to a PCBU has the duty of due diligence to ensure that their PCBU is complying with its duties under the Act. See Your Guide to The Duty of the Due Diligence under the Health and Safety at Work Act 2015.
The Primary Duty - Workers
A PCBU's primary duty is to ensure so far as reasonably practicable the health and safety of its workers while at work for the PCBU and any workers whose activities in carrying out work are influenced or directed by the PCBU while carrying out the work (e.g. temp workers). The term "worker" includes employees, contractors, subcontractors, outworkers, apprentices and volunteers.
In carrying out the primary duty, the PCBU must ensure so far as practicable:
- The provision and maintenance of a work environment which is without risks to health and safety
- The provision and maintenance of safe plant and structures and systems of work
- The provision of adequate facilities for the welfare at work of workers while they carry out work for the PCBU including access to those facilities
- The provision of any information, training, instruction or supervision necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the PCBU
- That the health of workers and conditions at the workplace are monitored for the purpose of preventing injuring or illness of workers arising from the conduct of the PCBU.
Where any worker occupies accommodation which is owned or under the management of the PCBU (and the occupancy is for the purposes of the worker's work) the PCBU must so far as reasonably practicable maintain the accommodation so that the worker is not exposed to risks to their health and safety arising from the accommodation.
The Health and Safety At Work Act (General Risk and Workplace Management) Regulations 2016 set out additional duties which PCBU have and include the following duties:
- Identification of hazards which give rise to reasonably foreseeable risks to health and safety;
- Implementing, maintaining and reviewing control measures (i.e. measures to eliminate or minimise risks);
- Provision of information, supervision, training and instructions to its workers;
- Taking steps to ensure that the workplace itself is without risks to health and safety (e.g. by ensuring there is adequate lighting and ventilation);
- Providing certain workplace facilities such as drinking water, facilities where the employee can take breaks and bathroom facilities if the nature of work requires this;
- Provision of first aid facilities;
- Preparation, maintenance and implementation of an emergency plan;
- Provision of personal protective equipment (if necessary to minimise risks to health and safety)
Specific duties of PCBUs which undertake certain activities
Depending on the actual business a PCBU undertakes it may have additional duties under the Act:
A PCBU which manages or controls a workplace must ensure, so far as is reasonably practicable, that the workplace and the means or entering and exiting the workplace and anything arising from the workplace is without risks to the health and safety of any person. However, if the workplace is a farm the PCBU only has a duty in relation to the farm buildings and not the dwelling house on the farm. Examples of PCBU's which may be deemed to be managing or controlling a workplace are commercial landlords (see our Guide - Duties of Commercial Landlords under the Health and Safety at Work Act 2015), Bodies Corporate (See our Guide Bodies Corporate and the Health and Safety at Work Act 2015) and any business where work is conducted from premises.
A PCBU which manages or controls fixtures or fittings or plant at workplaces must ensure, so far as reasonably practicable, that the fixtures, fittings or plant are without risks to the health and safety of any person. Examples of PCBU's which fall into this category are again commercial landlords and tenants where they have maintenance obligations in respect of items such as lifts, escalators, heating and air conditioning units and businesses where plant is used in the conduct of their business e.g. factories and manufacturing businesses.
A PCBU which designs, imports, manufactures or supplies plant, substances or structures to be used in a work place must ensure, so far as reasonably practicable, that the plant, substances or structures are without risks to those who have any involvement with them. Engineers, importers, manufacturers and designers of plant, substances and structures used in a workplace will come within this category of PCBU's.
A PCBU which installs, constructs or commissions plant or structures that are used or could reasonably be expected to be used as or at a workplace must ensure so far as reasonably practicable that the way in which the plant or structure is installed, constructed or commission ensures that the plant or structure is without risks to the health and safety of any person who has any involvement with the plant or structure. Examples of PCBU's which fall into this categories would be construction companies, builders and any person who engages a builder to construct or install plant or a structure at their workplace – including commercial landlords and bodies corporate.
Reasonably Practicable Steps only
A PCBU's duties under the Act is qualified by the concept of “reasonably practicable” in relation to addressing health and safety matters. This means that the actual influence and control which the PCBU could reasonably be expected to have in relation to any matter where there are health and safety risks is taken into account. Other factors which are taken into account in determining whether reasonably practicable steps have been take are:
- the likelihood of the hazard or risk occurring
- the degree of harm which may result from the hazard or risk
- what the PCBU knows or should know about the hazard or risk and ways of elimination or minimising it
- the availability and suitability of ways to eliminate the hazard or risk
- the costs associated with eliminating or minimising the risk (but note that this is only one factor which is taken into account)
Other duties
In addition to the primary duty and duties specific to the nature of the business of a PCBU, all PCBUs have the following additional duties:
- In relation to Notifable Events:
- To notify WorkSafe as soon as possible after becoming aware a Notifiable Event has occurred
- To take all reasonable steps to ensure the site where the Notifiable Event occurred, is preserved.
- To keep a record of each Notifiable Event for at least 5 years from when notice is given to WorkSafe
See our Guide – Notifiable Events under the Health and Safety at Work Act 2015
- In relation to Workers:
- To so far as reasonably practicable engage with workers who carry out work for the PCBU or who are likely to be directly affected by a matter relating to work health and safety
- To have practices that provide reasonable opportunities for workers who carry out work for the business to participate effectively in improving work health and safety in the business on an ongoing basis
See Guide to Worker Engagement and Participation under the Health and Safety at Work Act 2015
For more information or assistance please contact us.
DISCLAIMER
This information is intended to be general in nature. You are strongly recommended to seek your own legal advice in relation to the matters dealt with here.
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