In this section

• 2.1 Persons conducting a business or undertaking
• 2.2 An officer of a PCBU
• 2.3 Workers of the PCBU
• 2.4 Other persons at the workplace

Everyone involved in the workplace has health and safety duties when carrying out the work; this includes PCBUs and other duty holders.

2.1 Persons conducting a business or undertaking

Primary duty of care

WHS Act 2011 s19(1) Primary duty of care to workers

WHS Act 2011 s19(2) Primary duty of care to others

A PCBU has the primary duty to ensure, so far as is reasonably practicable, the health (including psychological health) and safety of each worker who is engaged, caused to be engaged, influenced or directed by the PCBU while the worker is at work in the business or undertaking. This means that the PCBU must ensure that psychosocial hazards at work are effectively managed by first trying to eliminate psychosocial hazards, and only if that is not reasonably practicable, then by minimising the remaining risks so far as is reasonably practicable. The PCBU’s duty to workers includes ensuring the health and safety of workers from harmful acts from third parties, such as clients, patients or their families, and students in educational institutions.

The PCBU must also ensure, so far as is reasonably practicable, that the health and safety of any person who is not one of the PCBU’s workers is not put at risk from work carried out as part of the conduct of the business or undertaking.

WHS Act 2011 s19(3) What is required to fulfil the primary duty of care

Examples of what the PCBU is required to do to manage psychosocial hazards include ensuring the provision and maintenance of:

• safe systems of work
• a safe working environment
• the safe use, handling, and storage of plant, structures and substances
• adequate access to welfare facilities at work
• necessary information, training, instruction or supervision of workers, and
• the health of workers and the conditions at the workplace are monitored to ensure any risks remain adequately controlled.

Outsourcing, contracting, partner and procurement arrangements

Outsourcing, contracting, partner and procurement arrangements will affect how work is done and may create psychosocial hazards for workers in organisations involved in this supply chain and others such as contractors or suppliers. The PCBUs must ensure, so far as is reasonably practicable, that their own workers and others health and safety, such as suppliers and contractors are not put at risk by the arrangements.

Duty holders affected by the outsourcing, contracting and procurement must be consulted on clear arrangements made on how the shared duty to protect and promote the health, safety and well-being of workers will be managed by each duty holder.

WHS Act 2011 s17 Management of risks

WHS Act 2011 s18 Reasonably Practicable

The PCBU’s duty in section 17 of the WHS Act is to take measures to eliminate the risk; and if this is not ‘reasonably practicable’, to minimise the risks ‘so far as is reasonably practicable’. In working out what is ‘reasonably practicable’, the PCBU must take into account and weigh up all relevant matters, including

• the likelihood of the psychosocial hazard or risk occurring
• the degree of harm that might result from the hazard or risk
• the availability and suitability of ways to eliminate the hazard or risk
• what the PCBU knows or ought reasonably to know about the hazard or risk and ways of eliminating or minimising the risk.

Once these factors have been weighed up, the PCBU may consider the cost of the measures to eliminate (or minimise) the risk – but a measure is only considered not reasonably practicable if the cost of implementing it is grossly disproportionate to the risk e.g. the cost of engineering changes to plant will be high and there is only a slight risk of minor sprains.

Duty to consult workers

WHS Act 2011 s47 Duty to consult workers

WHS Act 2011 Part 5 Consultation, representation and participation

All PCBUs have a duty to consult, as far as is reasonably practicable, with all workers who carry out work for the business or undertaking and who are likely to be directly affected by a health and safety matter. In particular, consultation is required when the PCBU is conducting risk management activities as required by its section 19 duty, and when it proposes any changes that might affect the health and safety of workers. PCBUs’ other obligations include negotiating with workers to establish work groups; facilitating the election of health and safety representatives (HSRs) for those work groups; allowing choice of course and paying for HSRs to attend an approved course(s) of WHS training; conferring and consulting with HSRs; and providing them with reasonably necessary resources, facilities and assistance.

WHS Act 2011 s68 Powers and functions of health and safety representatives

A HSR should:

• undertake training on psychosocial hazards and risks, their duties and risk management, and
• talk to workers they are representing about any psychosocial hazards and work-related risks and monitor actions taken to address concerns, and
• raise concerns about psychosocial hazards and risks in relevant meetings with the PCBU and provide feedback to the affected workers whilst protecting privacy and confidentiality where required.

Multiple duty holders

The nature of the work being undertaken may mean that more than one PCBU may have duties to manage the psychosocial hazards. For example, PCBUs:

• who are carrying out work on the same site (e.g. where work schedules and deliveries need to be coordinated so as not to create unreasonable time pressures or ensure safe site access, or where visiting care workers need to know if a client’s behaviour may be a risk)
• who together deliver a service (e.g. government agencies who establish the systems and policies that affect the work activities of others), or
• have management or control of a workplace where other PCBUs and their workers are working.

WHS Act 2011 s46 Duty to consult with other duty holders

All persons with a duty under the WHS Act must consult, cooperate and coordinate with other persons who owe a duty in relation to the same matter. For example, in managing psychosocial hazards and risks a PCBU will need to consult, cooperate and coordinate activities with partner organisations, suppliers, sub-contractors, building managers or workers.

Duties cannot be transferred

WHS Act 2011 s14 Duties not transferable

WHS Act 2011 s272 No contracting out

A PCBU cannot transfer or delegate any of its duties to another person. Nor can the PCBU contract out their health and safety duties, but they can consult, cooperate and coordinate with other PCBUs to do the things that will assist them in meeting their duties.

WHS Act 2011 s16 Each duty holder must comply

Where two or more PCBUs have the same duty, each must comply with that duty, even if another duty holder has the same duty. Their requirement to discharge this duty is, however, limited by the extent to which they can influence and control the matter.

Consulting, cooperating and coordinating activities with other duty holders in your contractual networks, including supply chains, will help address WHS risks that often occur when:

• there is a lack of understanding of how the activities of each person may create risks for others
• duty holders assume someone else is taking care of the health and safety matter
• the person who takes action is not the best person to do so.

When duty holders within a supply chain act cooperatively, they can implement more effective controls than when acting alone.

WHS Act 2011 s15 A person can hold more than one duty

A PCBU can also have multiple duties, for example, if they carry out work for another PCBU as a subcontractor, as a PCBU they hold the primary duty of care, the duty to consult workers, and the duty to consult, cooperate and coordinate, and they must also comply with the duties of a worker noted below.

Examples of how to do this:

A PCBU should ensure that their approach to systematic work health and safety management is effective by:

• identifying psychosocial hazards present in their workplace—for example through worker consultation and considering organisational experience, data and surveys
• eliminating psychosocial hazards or minimising psychosocial risk by redesigning the work with safer alternatives
• providing safe systems of work by managing how, where and when work is done, as well as who is involved in performing the work, so the tasks and work are safe
• providing relevant information, training, instruction and/or supervision for workers on how to do the work safely and well, appropriate to their roles and responsibilities in the workplace (including to those responsible for managing or supervising the work of others)
• ensuring where required, actions are implemented early, and monitoring occurs of the work environment, processes and workers’ health to prevent the onset of work-related psychological or physical injury or illness.

The PCBU’s goal to produce a product or provide, for example, a particular model of patient care, achieve particular educational outcomes for students, or a focus on customer service, cannot override the duty that the WHS Act 2011 places on the PCBU to ensure, so far as is reasonably practicable, the WHS of their workers and others.

2.2 An officer of a PCBU

WHS Act 2011 s27 Duty of officers

Officers, such as company directors, senior managers and executives of government agencies, have an immediate, positive and proactive duty to exercise due diligence to ensure the PCBU complies with the WHS Act and WHS Regulation.

Each officer of the PCBU must separately take reasonable steps to meet their due diligence obligations concerning psychosocial hazards to health and safety. This means an officer must, for example:

• understand their WHS legal duties
• understand the nature of the PCBU’s operations and the hazards and risks associated with those operations
• have a method to stay up to date on WHS matters of their organisation including psychosocial hazards
• ensure the PCBU is allocating the financial and human resources and is developing the systematic health and safety management processes required to eliminate or minimise psychosocial risk so far as is reasonably practicable; and
• take active measures to ensure that the above processes have occurred and are effective.

This duty requires officers to actively seek out relevant knowledge and understanding to make a decision or take action. In some circumstances, that may mean they need to rely on others’ information. Where this is the case, they should verify the credibility and appropriateness of the sources of information.

Examples of how to do this:

An Officer

• understands what their and others’ WHS duties are, such as the PCBU’s primary duty of care and requirement to consult affected workers
• keeps up to date on WHS in their business, and industry, including on new and emerging issues, by attending information sessions such as conferences, reading relevant publications and journals, and requesting and reading internal information and reports
• understands the operations of their organisation, knows what the common psychosocial hazards are in their organisation, and actively gathers their own information about the hazards in their organisation
• refers to what the guidance says about managing psychosocial hazards at work
• checks that their organisation’s approach to systematic work health and safety management has appropriate processes to manage known and emerging psychosocial hazards, is allocating enough resources to manage these, and has effective consultation, coordination and cooperation processes. For example, periodically visits sites to talk with workers and supervisors about hazards
• checks the approach to systematic work health and safety management and key performance indicators are appropriate, seeks out their own information on the organisation’s work health and safety performance, and insists that reports are provided to them promptly and their feedback actioned
• takes active measures to ensure that the PCBU is complying with its duties rather than waiting for information to be provided, for example, requesting information on risk assessments and incident notifications.

2.3 Workers of the PCBU

WHS Act 2011 s28 Duties of workers

While at work, workers must:

• take reasonable care for their own work health and safety
• ensure their actions or lack of action does not harm others, and
• follow reasonable health and safety instructions, policies or procedures. If workers believe these are not adequate, they should provide this feedback, in a reasonable way, to their supervisor or HSR(s).

Examples of how to do this:

A Worker

• takes responsibility for their own work health and safety, e.g. follows the safe work systems and lets their supervisor or HSR know if they need additional support
• behaves fairly and reasonably when working with others, e.g. are courteous and follows the organisation’s policies and procedures including those to manage the risk of bullying and harassment
• asks supervisors or experienced workers if not sure about something or how to do the work safely or well
• promptly reports to their supervisor or HSR(s) if psychosocial hazards are present or if existing control measures seem inadequate (to enable the PCBU to take appropriate actions to minimise the risks and if required, make reasonable adjustments) and
• follows the organisation’s psychosocial health and safety policies and procedures, and standards of behaviour.

2.4 Other persons at the workplace

WHS Act 2011 s29 Duties of other persons at the workplace

Other persons at the workplace, for example, clients, suppliers, visitors must:

• take reasonable care for their own health and safety
• take reasonable care that their actions or lack of action do not harm others’ health and safety, and
• comply with any reasonable instruction given by the PCBU to allow the PCBU to comply with their WHS obligations.

Examples of how to do this:

Visitors and others to a workplace, including suppliers and contractors

• are courteous and respectful of others when visiting worksites
• follow the site’s safe work procedures and ask if they are not sure about these and how to do the work safely.

PCBUs requiring deliveries to workplaces do not make unreasonable demands around delivery schedules and conditions.

Principal contractors set reasonable demands for others, for example around delivery schedules and conditions.