Duty Holder Obligations Under the WHS Act 2011

Why Duty Identification Is the First Step in WHS Analysis

Before assessing whether a WHS obligation was breached, you must identify who owed it. The WHS Act 2011 imposes duties on several categories of persons, each with different scope and intensity. A solicitor building or defending a WHS claim needs to correctly map the duty holders to the incident before assessing breach, causation or reasonable practicability.

The duty hierarchy matters because it determines who is liable, to what extent and under which provision of the Act. Getting the duty holder wrong early in a matter can result in a case built on the wrong legal foundation.

PCBUs and the Primary Duty of Care (Section 19)

A Person Conducting a Business or Undertaking (PCBU) owes the primary duty of care under the WHS Act. Section 19 requires the PCBU to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the PCBU and any other workers whose activities in carrying out work are influenced or directed by the PCBU.

The PCBU duty extends beyond employees to labour hire workers, contractors, subcontractors and volunteers where those persons are engaged or whose work is influenced or directed by the PCBU. The duty also extends to other persons at the workplace, including visitors, customers and members of the public, so far as is reasonably practicable.

Importantly, a PCBU can be an individual, a company, a partnership, a government body or any other entity conducting a business or undertaking. The entity structure does not limit the duty.

Officers and the Due Diligence Duty (Section 27)

Section 27 imposes a separate duty on officers of a PCBU to exercise due diligence to ensure the PCBU complies with its WHS duties. An officer is a director or secretary of a company, a person who makes or participates in making decisions that affect the whole or a substantial part of the business, or a person on whose instructions the directors act.

Due diligence under section 27 requires the officer to acquire and keep up to date knowledge of WHS matters, understand the nature of the operations and the associated hazards and risks, ensure the PCBU has appropriate resources and processes to eliminate or minimise risks, and verify that appropriate processes are implemented and monitored.

The officer duty is personal. A company's compliance does not automatically discharge an officer's individual duty. Officer prosecutions following serious workplace incidents are increasingly common in Australian jurisdictions.

Workers' Duties (Section 28)

Workers have duties under section 28 to take reasonable care for their own health and safety and for the health and safety of others, to cooperate with any reasonable policy or procedure of the PCBU relating to health and safety, and not to wilfully or recklessly interfere with or misuse anything provided in the interests of health and safety.

Worker contributory conduct is relevant in negligence and may be relevant to apportionment in some proceedings, but breach of a worker's section 28 duty does not extinguish or reduce the PCBU's primary duty. Both duties exist independently and can both be breached in the same incident.

Labour Hire, Principal Contractors and Concurrent Duties

Multiple PCBUs can owe concurrent duties in respect of the same worker or workplace. Where a labour hire company supplies a worker to a host employer, both the labour hire company and the host are PCBUs who owe duties to the worker. The duties are concurrent, not alternative.

On construction sites, the principal contractor has specific duties under the WHS Regulations in addition to the general PCBU duty. Subcontractors are themselves PCBUs and owe duties to their own workers. The principal contractor's duty to manage and coordinate subcontractors is additional to, not instead of, each subcontractor's own duty. For more on this see the contractor management expert page.

Understanding concurrent duties is important in multi-party proceedings where contribution between defendants may be in issue. Expert analysis should address which duty holders were active in relation to the specific hazard and incident, not merely who was present on site. See also reasonably practicable explained and the breach analysis service.