Cert IV OHS – WHS Responsibilities and Legislative Requirements

In the Certificate IV in OHS, you’ll learn about WHS RESPONSIBILITIES AND REQUIREMENTS AS SPECIFIED IN LEGISLATION.

General Duty of Care –

The Model Work Health and Safety legislation sets out duties of care on a wide number of workplace parties.

The parties include:

– Persons conducting a business or undertaking;

– Persons in control of fixtures, fittings or plant at a workplace;

– Designers of plant, substances or structures;

– Manufacturers of plant, substances or structures;

– Suppliers of plant, substances or structures;

– Installers of plant, substances or structures;

– Officers;

– Workers; and

– Others persons at the workplace.

Duties – Persons Conducting a Business or Undertaking (PCBU)

The phrase ‘business or undertaking’ is intended to be read broadly and covers businesses or undertakings conducted by persons including PCBUs, principal contractors, head contractors, franchisors and the Crown.

A PCBU has a primary duty of care requiring them to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work.

BSBOHS408A ASSIST WITH COMPLIANCE WITH OHS LAWS AND OTHER RELEVANT LAWS

Section 19 of the WHS Bill sets out the primary duty of care including:

– ensuring so far as is reasonably practicable the health and safety of workers; and

– ensuring so far as is reasonably practicable the health and safety of others affected by the business or undertaking

The duty includes providing:

a) safe working environment;

b) safe plant and structures;

c) safe systems of work;

d) safe use, handling and storage of plant and substances;

e) adequate facilities;

f) adequate information instruction and training; and

g) monitoring of the workplace.

A PCBU has a duty of care to others who may be affected by the business or undertaking, for example, if a building site has loads being lifted over a footpath, there is a duty of care to pedestrians. A mechanical workshop may have a sign saying ‘no visitors past the front office’ because of the duty of care to visitors.

A PCBU is also required to:

– facilitate the election of health and safety representatives;

– assist them in their functions where called for under the legislation;

– set up and facilitate a health and safety committee where the conditions set out in the legislation have been met; and

– establish issue resolution procedures.

Duties – Persons in Control

There may also be duties imposed on those who have control of workplaces. A high-rise building may hold many businesses. The building manager has control over certain aspects of these workplaces such as lighting, sanitation, air-conditioning and access and egress, e.g. the lifts and staircases.

Duties – Officers

Under the WHS Act the duties on Officers are positive and proactive duties. Under pre-harmonisation legislation personal liability of officers is that officers will be attributed personal liability for breaches of the company of its WHS obligations.

The trigger for that liability ranges from deemed liability (in NSW, Queensland and Tasmania), to liability for failing to take reasonable care to prevent the contravention (in Victoria, South Australia, the Northern Territory and shortly in the ACT) and liability only in the event that the offence was committed with the consent, connivance or is attributable to any neglect on the part of the officer (in Western Australia).

Despite the range of liabilities, all three position have one thing in common, the officer will be personally liable only if their company commits an offence.

The WHS Act defines an officer as:

> (a) a director or secretary of the corporation; or

> (b) a person:

– (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

– (ii) who has the capacity to affect significantly the corporation’s financial standing; or

– (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act.

And defines the duties of an Officer as exercising due diligence which includes:

> acquiring and keep up to date knowledge of WHS matters in relation to the undertaking;

> understanding the operations and the associated risks and hazards;

> ensuring appropriate resources, including advice, and processes to identify risks and then minimise or eliminate those risks;

> ensuring that there are processes for receiving and considering information about risks, hazards and incidents and responding in a timely manner; and

> to ensure that there are processes and resources for complying with the duties and obligations under the Act.

Duties – Workers

A ‘worker’ is a person who carries out work in any capacity for a PCBU, including work in any of the capacities listed in the provision. The examples of workers in the provision are illustrative only and are not intended to be exhaustive. That means that there will be other kinds of workers that are not specifically listed in this clause (e.g. students on clinical placement and bailee taxi drivers).

The term ‘work’ is not defined but is intended to include work, for example, that is carried out:

1. under a contract of employment, contract of apprenticeship or contract for services;

2. in a leadership role in a religious institution, as part of the duties of a religious vocation or in any other capacity for the purposes of a religious institution;

3. as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; and

4. as practical training as part of a course of education or vocational training.

Whether a person is a worker is to be decided on the facts of the case. It is important to note that the WHS Act places obligations on PCBU’s for the safety of contractors. This relationship can be complex and the Act and guidance material should also be examined to find out just who is responsible for WHS in principal-contractor relationships.

Workers have duties to:

– take reasonable care for their own safety;

– take reasonable care for the safety of others;

– comply with the reasonable instructions of a PCBU; and

– cooperate with the PCBU’s reasonable policies or procedures for health and safety.

The worker’s duty does not stand alone. It complements the PCBU’s duty, and the worker needs to receive the appropriate information, instruction, training and supervision to properly fulfil his or her duty. Given this, it is the worker’s duty to act in good faith.

Extent of the worker’s duty of care

The duty applies to all levels from production worker or clerical worker to senior executive or manager. The worker’s duty to avoid causing harm to others may place greater responsibilities on managers and supervisors than on other staff. For example, a supervisor who directs that a particular task is done in a particular way clearly has responsibilities to the workers who are directly involved in performing the task, and to other workers and members of the public who may be affected by the way in which the task is done.

To meet the obligation placed on workers they must:

Follow the PCBU’s instructions provided for WHS reasons.

Use personal protective clothing and equipment that has been provided by the PCBU. This duty is dependent upon the PCBU providing proper instruction in its care, use and storage.

Take good care of equipment provided in the interests of health and safety. In particular, the worker must not misuse or damage the equipment. It would be an offence to deliberately render fire-fighting equipment inoperative or to remove guards from dangerous machinery for no good reason. This point applies when PCBU’s have provided the necessary information, instruction and training in health and safety matters, and a worker’s actions to misuse or damage are quite deliberate.

Report hazards that the worker cannot correct. The requirement is to report to the PCBU.  However, there could be a system in the workplace where workers report to their immediate supervisor or area manager. Where that person is also unable to correct the hazard, it should be reported to a more senior management person. Any procedure that sets up a chain of command or delegates the task of receiving hazard reports should ensure there is prompt action to fix the problem or refer it on to someone who can fix it.

The legal responsibility to ensure that workers are not exposed to hazards rests with PCBU’s. In addition, supervisors who do not follow an agreed reporting procedure could be affecting the safety and health of other people through an omission at work, and may be failing to comply with their duties as workers.

Report injury or harm to health that is connected with the work activity. This applies to physical injuries and to the early symptoms of illness or disease that may be connected with work. For this reporting to occur, workers should have received information from the PCBU about the early symptoms of which they need to be aware.

For example, keyboard operators should be aware of the symptoms of occupational overuse injuries.

Cooperate with the PCBU to allow the PCBU to carry out its duties under the Act. This complements the PCBU’s duty and means that workers should actively work with PCBU’s with the common aim of improving health and safety at the workplace. This duty means that workers must follow directions given by the PCBU in the interests of health and safety.

Duties – Others

Others include people who may have reason to be at the workplace but are not a worker. The duties of others mirror the duties of workers in that they must take care of themselves, cooperate with the PCBU and not do anything to endanger the health and safety of others.

The WHS laws set out the duties and functions of different people in a workplace or those who service that workplace. When considering the application of legislation and specific responsibilities you will need to establish:

1. What role does the person have in the workplace e.g. worker, Officer?

2. What duties apply under the legislation e.g. reasonable care, due diligence?

3. Are there any additional duties placed on the person under the regulations or codes of practice?

4. Have they met those obligations and what evidence there is of that e.g. using PPE as instructed, receiving reports about health and safety performance and acting on them?

Published by: LMIT

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