The Work Health and Safety Act 2011 (Act) and related Regulations commenced operation in New South Wales on 1 January 2012. The legislation imposes various duties on persons conducting a business or undertaking (PCBU), officers, workers and other persons who visit the workplace. Significant penalties, including prison sentences, can apply for breach of those duties and it is important that employers and officers are aware of their obligations under the Act and take the necessary steps to comply with those obligations.
Broadly, the Act requires that a PCBU must ensure the health and safety of workers so far as is reasonably practicable and sets out the steps (including consultation obligations) that should be taken to achieve that requirement. For the purposes of the Act, a ‘worker’ includes a person carrying out work in any capacity and includes for example, employees, contractors and subcontractors (and their employees), labour hire employees, apprentices, work experience students and volunteers.
Duties imposed on officers
Importantly, each officer of a PCBU must exercise due diligence to ensure that the PCBU complies with its duties under the Act. Directors, company secretaries and the CEO or Managing Director will each be an officer for the purpose of the Act. Other managers, such as the CFO, General Counsel and Human Resources Manager, may also be officer under the Act depending on the nature of their role and responsibilities.
Officers have a positive duty to exercise due diligence to ensure that the PCBU meets its work health and safety obligations. This means that:
- the duty is allocated to the officer personally (i.e. it cannot be transferred or delegated to another person); and
- an officer may be held personally liable for failing to meet their responsibilities under the Act.
Due diligence requires that an officer take reasonable steps to:
- acquire and keep up-to-date knowledge of work health and safety matters;
- understand the nature of the PCBU’s business and the health and safety risks and hazards that may arise;
- ensure that the PCBU has available, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety;
- ensure that the PCBU has processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
- ensure that the PCBU has, and implements processes for complying with any duty or obligation under the Act, including, for example:
- assessing and controlling risks;
- reporting notifiable incidents;
- consulting with workers;
- complying with notices issued under the Act;
- providing training and instruction to workers about work health and safety; and
- verify the provision and use of the resources and processes referred to in paragraphs (c)–(e) above.
To comply with those obligations, officers should at a minimum:
- ensure that they have access to current information and training about WHS matters;
- understand the business of the PCBU and the risks and hazards arising from the business;
- ensure that workers understand their obligations;
- ensure that a due diligence framework is developed and implemented to comply with the requirements of the Act;
- personally consider the information they receive, ask questions, investigate and follow up on WHS issues that arise;
- take steps to ensure that information relied on is credible and accurate; and
- take an active and inquisitive role in relation to their responsibilities.