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12 April 2022 - 16:51 | Version 3 | IsobelHarris Contributed by Anne Aziz-Parker, with Catherine Matthews and Richard Muir and current to March 2022. The Work Health and Safety Act 2011 imposes safety duties on all people at a workplace including:
Who is a person in control of a business or undertaking?A person in control of a business or undertaking (sometimes referred to as a PCBU) engages a worker to carry out work in the person’s business or undertaking. A person in control of a business or undertaking may be a principal contractor who engages a sub contractor, a host organisation, a corporation, a partnership, an unincorporated association, a self employed person or a sole trader. A 'business or undertaking' includes a not-for-profit business and an activity conducted by the ACT Government. A person is not a person in control of a business or undertaking if they are:
What is the duty of a person in control of a business or undertaking?The primary work health and safety duty of a person in control of a business or undertaking (PCBU) is to ensure the health and safety of workers, customers and visitors by providing a safe workplace and safe systems of work. A person in control of a business or undertaking is specifically required to:
Who is a suitably qualified person?‘Suitably qualified’ means having the knowledge, skills and experience to provide advice on issues that may impact the health and safety of employees. The advice must reflect the current state of knowledge on work health and safety issues so the employer can rely on this advice when controlling the risks in their workplace . A suitably qualified person is not expected to be expert in every aspect of work health and safety but they must recognise the limits of their competence and identify for the employer when further expertise is necessary.What is the duty of a suitably qualified person?The suitably qualified person must be able to advise the employer about the process of identifying hazards and implementing controls to eliminate or reduce the assessed risks, and how to monitor and review those controls. The type of person required will always depend on the circumstances for example the type of workplace and its hazards. The following matters, all of which Access Canberra may take into account, should all be considered when assessing whether a person has the skills, knowledge and experience to be suitably qualified.
Who is an officer?A business or undertaking is operated by individuals who make important decisions which determine the success or failure of health and safety initiatives and compliance by the person in control of a business or undertaking with work health and safety laws. These individuals are described as 'officers' under the Work Health and Safety Act 2011.What is the duty of an officer?The health and safety duty of an officer requires them to exercise due diligence. Due diligence includes taking reasonable steps to:
Who is a contractor?A contractor is any company, agency, or individual contracted to provide goods, services or carry out works of any type for an organisation or a person for a set price or rate. Contractors may be self employed, in a partnership or employ workers of their own. Workers of contractors may include:
What is the duty of a principal contractor?The term 'principal contractor' applies to a person or organisation who engages a contractor to carry out work . When a principal engages a contractor to carry out work , the principal is the person conducting the business or undertaking and the person in control of the workplace and therefore the employer of the sub-contractor. Under these circumstances the principal has the legal responsibilities of an employer towards the contractor and any workers of the contractor (or other persons engaged by the contractor). This applies as if the contractor and his or her workers were workers of the principal. The principal's duty applies only in relation to matters over which the principal has control or the capacity to have control. For example, a principal on a building site who engages an electrical contractor to work at height would have a duty to protect the contractor from the hazard of falling from that height. The principal would have to implement appropriate systems and ensure installation of the necessary structures to ensure that adequate fall protection was in place. However, in relation to the aspects of the electrical work for which the principal has no expertise, the principal would not have the capacity to control the way in which the work is done. In many instances, workplace relationships and work health and safety obligations are complex and overlap, especially where there are several duty holders. Contractors may have both the duties of a person conducting a business or undertaking or the person in control of the workplace (in relation to his or her own workers) and the duties of a worker (in relation to the work for the principal). Contractors having their own workers retain the duties of a person conducting the business or undertaking or the person in control of the workplace towards those workers and must ensure their physical and psychological health and safety. Contractors and contractors' workers (or people engaged by a contractor) working for a principal contractor have the duties of a worker in relation to the work for the principal. For example, a project management company (the principal) oversees construction of a large complex and manages many contractors and sub-contractors for the site owner. An electrician who is a worker of an independent contractor is working on site and is required to work at height. In this circumstance the site owner, the project management company and the contractor all have duties to provide a working environment for the contractor's worker, the electrician, that is safe and without risk to health. The provision of safety measures depends on who has control of the work area and processes and must be agreed upon before the electrician commences work.Who is an employer?An employer, of a worker, includes a person who engages the worker to carry out work in the person's business or undertaking. A business or undertaking includes not-for-profit organisations and an activity conducted by a local, state or territory government. A person conducting a business or undertaking includes:
Who is a worker?A worker is someone who carries out work for a person in control of a business or undertaking including an employee, labour hire worker, volunteer, apprentice, work experience student, subcontractor and contractor.What is the duty of a worker?A worker must take reasonable care for their own health and safety and ensure that they do not adversely affect the health and safety of others. A worker must also comply with any reasonable instruction given by the person in control of a business or undertaking and cooperate with their policy and procedures. Workers can meet their health and safety duty through:
Who is a volunteer?A volunteer is a person who:
What is the duty of a volunteer?A volunteer must take reasonable care for their own and others’ health and safety. If you are engaged by a person conducting a business or undertaking, you are a worker and must comply with any reasonable instructions, policies and procedures relevant to health and safety. If you are an officer who is a volunteer, you must comply with health and safety duties, but you cannot be prosecuted for an offence as an officer. You may be held liable, however, if you do not comply with your duties as a 'worker' or 'other'. A volunteer must meet the definition of a 'worker' to be a volunteer in an employment like setting. A worker is an individual who carries out work in relation to a business or undertaking, whether for reward or otherwise, under an arrangement with the person conducting the business or undertaking. Volunteers who work in employment like settings are workers. They must be treated in the same way as all other workers and must be consulted, so far as reasonably practicable, on all matters that directly affect their health, safety and wellbeing in relation to work. Volunteers that work in employment like settings must comply with the duties that apply to all workers under the Work Health and Safety Act 2011. They must:
Right to refuse to do unsafe workAll workers have the right to refuse to do work that they reasonably believe is dangerous and/or puts them or others in immediate risk of serious injury or harm. Workers must inform their supervisor, person in control of a business or undertaking and health and safety representative of their concerns. If the matter cannot be resolved using the agreed issue resolution procedure any party to the matter may request an Access Canberra work health and safety inspector to attend the workplace . Workers who refuse to do work on reasonable grounds are entitled to the same pay and other benefits (if any) as usual. Workers who refuse to do reasonable alternate work or leave the workplace without authorisation of the person in control of a business or undertaking are not entitled to regular pay.Who is an ‘other’ at a workplace?‘Others’ include clients, customers and visitors. While at a workplace, others have a duty to:
Failure to comply with a safety dutyUnder Part 2 of the Work Health and Safety Act 2011 failure to comply with work health and safety duties can lead to the following breaches and penalties: Category 1 offence - reckless conduct Section 31 of the Work Health and Safety Act 2011 states that a person commits a category 1 offence if:
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