Under the relevant health and safety legislation (the “Legislation”) and associated regulations and codes of practice, the primary duty to eliminate or minimise, as far as reasonable practicable, the risks to health and safety in the workplace is imposed on a person conducting a business or an undertaking (“PCBU”).
The PCBU bears the primary duty for workplace safety if it:
- engages workers to undertake work for them, or if it directs or influences work carried out by workers;
- puts other people at risk from the conduct of the business or undertaking;
- manages or controls the workplace, fixtures, fittings or plant at the workplace;
- designs, manufactures, imports or supplies plant, substances or structures for use at a workplace; or
- installs, constructs or commissions plant or structures at a workplace.
This primary duty can be the responsibility of more than one party at any one time, for example where a company engages a contractor to perform work at the workplace. In this instance, both the company and the contractor are PCBUs for the purposes of the Legislation and each hold a duty to ensure the health and safety of the workers of the contractor. Each duty holder must comply with the duty imposed on it, to the extent that it has the capacity to influence or control the matter, even if the same duty is also held by another party.
This means that the company must comply with its primary duty for the health and safety of the workplace, irrespective of whether a contractor holds the same duty. In addition, the relevant work health and safety regulations impose specific obligations on a principle contractor for a construction project as a PCBU (ie they manage or control the work at the workplace) in relation to construction and high risk work.
Further, in situations where responsibility for health and safety is shared, or duties overlap, the Legislation requires that there is consultation, co-operation and co-ordination of activities with all duty holders, as far as reasonably practicable (for example between the company and the contractor). This will ensure that all actions taken are complimentary and will avoid any gaps in managing health and safety. There is further guidance on the consultation requirements in the Safe Work Australia Code of Practice-Work Health and Safety Consultation, Co-Operation and Co-Ordination (effective from 1 January 2012 in some States and shortly thereafter in the remaining States and Territories). The code is generally applicable to all types of work and all workplaces covered by the Legislation, including workplaces that are mobile, temporary and remote.
Compliance with this procedure will assist the company in meeting its obligations under the Legislation, associated regulations and codes of practice in circumstances where contractors are engaged.
It is important to note that the company’s duty under the Legislation cannot be transferred or assigned by contract and cannot be outsourced.
This procedure does not cover the specific legal requirements for:
- the mining industry -refer to the relevant work health and safety regulations and to the Safe Work Australia Code of Practice- Work Health and safety Management Systems in Mining (effective from 1 January 2012 in some states and shortly thereafter in the remaining states and territories); or
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high risk chemical facilities or other major hazard facility (including where asbestos is present) – refer to Safe Work Australia Codes of Practice – Hazardous Manual Tasks; Preparation of Safety Data Sheets for Hazardous Chemicals; Labelling of Workplace Hazardous Chemicals and How to Safely Remove Asbestos (effective from 1 January 2012 in some states and shortly thereafter in the remaining states and territories).
Important note to subscribers
The commentaries and documents in HR Advance are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create. |
Further information
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