WHS Duty holders in Australian law

Posted by SkillMaker in Sep, 2014

Who are Duty holders in Australian WHS law?

Under Australian WHS law, duty holders are people that are responsible for ensuring the safety of a group of people or an organisation.

WHS Duty Holder

What is a WHS Duty Holder in Australian WHS law like?

A Duty Holder in Australian WHS law is like sports club administrators who take steps to ensure that all matters relating to the sport are managed in accordance with the club’s constitution and who are answerable to the club’s coverning body.

What is the purpose of Duty holders in Australian WHS law?

Everyone has a role to play to ensure that health and safety is a priority in the workplace. The Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulations 2011 require persons who have a duty to ensure health and safety to ‘manage risks’ by eliminating health and safety risks so far as is reasonably practicable, and if it is not reasonably practicable to do so, to minimise those risks so far as is reasonably practicable.

Duty holders have a very important role in preserving health and safety during an emergency situation. As indicated in the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011, duty holders ensure health and safety by managing risk through the elimination of risks to safety and health using reasonable practices. If the methods are not reasonable or practical to do, risks should be minimised as possible.

Where does appointment of a WHS duty holder fit in the establishment of an organisation in Australia?

What comes before? Intent to create an enterprise.
Appointment of WHS Duty holders
What comes after? Implementation of compliance requirements

What are the different types of Duty holders in Australian WHS law?

Australian WHS law places duties to the following persons:

PCBUs – A PCBU (Person Undertaking a Business or Undertaking) is the legal entity operating a business or undertaking. A PCBU may be an individual person or an organisation conducting a business or undertaking.

Examples of PCBUs that are organisations include:

- - public companies
  - private companies
  - trustees that are companies
  - cooperatives that are companies
  - government departments and authorities
  - incorporated associations if they employ someone
  - local authorities (municipal corporations or councils)
  - schools

Examples of PCBUs who are individuals include:

- - partners in partnerships
  - sole traders and the self employed
  - individual trustees of trusts (as with some family businesses)
  - Committee members of unincorporated associations if they employ someone.

Officers – who are the senior executives who make, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking. Officers may be a person identified within the meaning of section 9 of the Corporations Act (not including a partner in a partnership), an officer of the Crown, and an officer of a public authority.

Workers and other persons at the workplace – are people who work in the workplace as well as other people that are currently present in the workplace.

WHS Act makes it clear that an individual is not a PCBU if they are in the business or undertaking only as a worker or officer. Individuals that are directors or those who belong in managerial positions have separate and specific duties as officers.

WHS Duty Holders

What are the duties or responsibilities of Duty holders in Australian WHS law?

Officers of a person conducting a business or undertaking (PCBU) with a duty or obligation under the WHS Act must exercise ‘due diligence’ to ensure that the PCBU complies with that duty or obligation.

A person may have more than one duty and more than one person can have the same duty. However, in that case, each person must discharge the duty to the extent the person has the capacity to influence and control the matter (or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity).

Duties imposed on a person to ensure health or safety (‘health and safety duties’) require the person:

to eliminate risks to health and safety, so far as is reasonably practicable, and
if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

What terms are used when determining Duty holders in Australian WHS law?

- - Duty Holder – refers to any person who owes a work health and safety duty under the WHS Act including a person conducting a business or undertaking (PCBU), designer, manufacturer, importer, supplier, installer of products or plant used at work (upstream duty holders), an officer and workers. Duties cannot be transferred.
  - Health and safety committee (HSC) – a group established under the WHS Act that facilitates cooperation between a PCBU and workers to provide a safe place of work.
  - Health and safety representative (HSR) – a worker who has been elected by a work group under the WHS Act to represent them on health and safety issues.
  - Officer – an officer within the meaning of section 9 of the Corporations Act 2001 (Cth) other than each partner within a partnership. Broadly, an officer is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the organisation’s activities.
  - Person conducting a business or undertaking (PCBU) – a person conducting a business or undertaking alone or with others, whether or not for profit or gain.
  - Plant – includes any machinery, equipment, appliance, container, implement or tool,
  - Structure – anything that is constructed, whether fixed or moveable, temporary or permanent and includes buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels).
  - Volunteer – a person who acts on a voluntary basis regardless of whether they receive out of pocket expenses.
  - Volunteer association – a group of volunteers working together for one or more community purposes—whether registered or not—that does not employ anyone to carry out work for the association.
  - Worker – any person who carries out work for a PCBU, including work as an employee, contractor, subcontractor, self-employed person, outworker, apprentice or trainee, work experience student, employee of a labour hire company placed with a ‘host employer’ and volunteers.