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Primary duty

A person conducting a business or undertaking (PCBU) has a primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking and others who may be affected by the carrying out of work, such as visitors.

The primary duty of care requires PCBUs to ensure so far as is reasonably practicable the: 

  • provision and maintenance of a safe work environment; 
  • provision and maintenance of safe plant and structures; 
  • provision and maintenance of safe systems of work; 
  • safe use, handling and storage of plant, structures and substances;
  • provision of accessible and adequate facilities (for example access to washrooms, lockers and dining areas);
  • provision of any instruction, training, information and supervision; 
  • monitoring of workers health and conditions at the workplace and
  • maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.

‘Health’ is defined in the model WHS Act as both physical and psychological health. As part of its primary duty a PCBU must manage the risks to a worker’s psychological health, so far as is reasonably practicable.  For further information about psychological health see:

Managing the workplace environment and facilities

The model WHS Regulations contain more detailed requirements in relation to a PCBU’s primary duty of care, including the general working environment.  The work environment includes the layout of the workplace, lighting, work areas, floors and surfaces as well as ventilation. 

A PCBU must ensure so far as is reasonably practicable the provision of adequate facilities including toilets, drinking water, washing and eating facilities. The facilities must be maintained in good working order and be clean, safe and accessible. 

A PCBU must also:

  • provide adequate training, information and instruction to ensure that each worker is safe from injury and risks to health
  • ensure the provision of first aid equipment and facilities and prepare, maintain and implement emergency plans
  • manage risks associated with remote or isolated work (including working from home), airborne contaminants, hazardous atmospheres, storage of flammable or combustible substances and falling objects, and 
  • comply with requirements regarding the use of personal protective equipment. 

A PCBU must consult with workers when making decisions regarding the adequacy of facilities for the welfare of workers and when proposing change that may affect the health and safety of workers. 

For further information about managing the work environment and facilities see:

Further duties

The model WHS Act imposes specific duties on certain PCBUs who are in control of workplaces or are ‘upstream’ duty holders such as designers, manufactures and importers of plants and substances.

Duties relating to management and control

A PCBU who manages or controls a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace does not put the health or safety of any person at risk. 

Similarly, a PCBU who in whole or in part manages or controls fixtures, fittings or structures must ensure, so far as is reasonably practicable, that those things are without risk to the health or safety of any person. 

The duties do not apply to residences unless the residence is partially used to conduct the business or undertaking. For example, home businesses or workers working from home. 

Duties relating to plant, substances or structures used in workplaces

A PCBU who designs, manufacture, imports or supplies plants, substances or structures used or to be used in a workplace must ensure, so far as is reasonably practicable, that their products are without risks to health and safety when used at a workplace— throughout their entire lifecycle.

A PCBU who installs, constructs or commissions plant or structures must also ensure, so far as is reasonably practicable, all workplace activity relating to the plant or structure including its decommissioning or dismantling is without risks to health or safety. 

For further information see:

•    Model Code of Practice: Safe Design of Structures  
•    Model Code of Practice: Managing risks of plant in the workplace 
•    Safe Design
•    Plant design, supply and registration

Management of risks 

A PCBU must seek to eliminate risks to health and safety so far as is reasonably practicable. If a PCBU cannot eliminate a risk, they must minimise the risks so far as is reasonably practicable. 

For certain risks, the model WHS Regulations provide that where it is not reasonably practicable to eliminate risks to health and safety the PCBU must apply the hierarchy of control measures in minimising risks to health and safety.  These risks include those associated with remote or isolated work, hazardous atmospheres or chemicals, hazardous manual tasks, falls or falling objects, plant, electrical or construction work, hearing loss associated with noise and general diving work.  

The hierarchy of control measures can also be applied in relation to any risk. 

For more information see:

What is reasonably practicable?

The term ‘reasonably practicable’ means that which is or was reasonably able to be done at a particular time to ensure health and safety measures are in place, taking into account relevant matters including:

  • the likelihood of the hazard or risk occurring
  • the degree of harm that might result from the hazard or risk
  • knowledge about the hazard or risk, and ways of minimising or eliminating the risk
  • the availability and suitability of ways to eliminate or minimise the risk, and
  • after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Applying a risk management process helps to determine what is reasonably practicable. Risk management involves a systematic process to:

  • identify hazards associated with the activity or environment
  • if necessary, assess the risks associated with the hazards
  • identify and implement available and suitable control measures to eliminate or minimise the risks
  • review the effectiveness of the control measures

For further information on reasonably practicable and risk management see: 

Multiple duty holders and duty to consult

In some circumstances there may be multiple businesses or undertakings involved in the same task or activity (for example suppliers, contractors and building owners). This means there may be multiple PCBUs that owe a duty to workers and other persons.  

If more than one PCBU owes a duty in relation to the same matter, each PCBU retains responsibility and must discharge their duty to the extent to which the PCBU has the capacity to influence and control the matter. A PCBU cannot ‘contract out’ of their responsibility and a duty cannot be transferred to another person. In these situations, each PCBU must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons with a duty in relation to the same matter.

PCBUs should exchange information to find out who is doing what and work together in a cooperative and coordinated way so risks are eliminated or minimised so far as is reasonably practicable. For example, if a PCBU is a tenant in a building, the PCBU will share responsibility for providing a safe physical work environment and facilities with the property manager or building owner and the PCBU should therefore discuss the requirements regarding these matters with them. This would include checking that there are arrangements in place for the proper maintenance of plant such as air-conditioning systems and facilities such as toilets. 

Managing work health and safety risks is more effective if PCBUs involved in the same task or activity exchange health and safety related information. It can also help to improve the efficiency of health and safety measures.

Duty to consult workers and their representatives

A PCBU must also, so far as reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to health and safety. This includes giving workers a reasonable opportunity to express their views or raise issues about work health and safety at the workplace.

A PCBU must take into account the views of workers consulted and advise those workers of the outcome of the consultation. If the workers are represented by a health and safety representative, the consultation must involve that representative.

For more information see the Model Code of Practice: Work health and safety consultation cooperation and coordination.

Managing specific workplace risks

The model WHS Regulations sets out specific requirements that PCBUs must comply with when managing risks that arise from certain hazards or hazardous work. This includes construction work, hazardous atmospheres or chemicals, asbestos, confined spaces, plant, falls or falling objects, hazardous manual tasks and diving work. For further information see:

See also our safety by topic page for further information on some of the specific hazards or hazardous work subject to requirements under the model WHS Regulations.
 

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