2. 2
“A corporation is an artificial entity that
cannot make decisions or act other than
through individuals. A corporation cannot
comply with a duty of care placed upon it,
unless those who manage the corporation
make appropriate decisions to ensure
necessary actions are taken. They are
known as officers.”
National Review into OHS Laws 1st Report (2008)
4. 4
“Officers are personally liable for ensuring the
business or undertaking complies with its duties”.
National Review into OHS Laws 1st Report (2008)
5. Course Description
This course will assist you to understand the role of the WHS
Officer, and their duty of care under the Work Health & Safety Act
2012. Completion of this training module will enable you to
identify;
• Relevant legal and compliance requirements, including duties of care
• The potential consequences of a WHS breach
• Ways to remain informed regarding WHS matters;
• Within the relevant jurisdiction (i.e. South Australia), and
• Within an organisation
• Elements of an effective WHS system to mitigate WHS risks
5
6. The WHS Legislative
Framework
• …is based on nationally consistent (i.e.
“harmonised”) model WHS legislation.
• …defines “duty holders” and the duties
owed.
• Compliance with the WHS Act and
Regulations is mandatory.
• Codes of Practice are not mandatory, but are
admissible in court proceedings.
• Australian Standards are not mandatory
unless referenced in relevant Acts and
Regulations.
• Guidance material is not mandatory
6
Links:
• WHS Act
• WHS Regulations
• Approved Codes of Practice
8. WHS Duty Holders –
PCBU
PCBU?
Employers
Sole traders
/ Self emp.
Corporations
Associations
Partnerships
Government
entities /
Public
authorities
Some
volunteer
organisations
Trustees of a
trust• PCBU may be a “natural person” or a legal
entity (e.g. company; government
department etc.)
• Whether the business or undertaking is
for profit or not-for profit does not affect
the definition of a PCBU
• PCBU does NOT include
• a person engaged solely as a worker or
an officer
• elected officials, or
• volunteer organisations that do not
employ workers
• a strata title body corporate responsible
for common areas used only for
residential purposes (so long as the body
corporate does not directly employ
workers)
8
(Reference: WHS Act; S.5)
As a member of a board, you will be an “Officer” under South Australian Work Health and Safety (WHS) legislation. Officers must ensure the organisation has a systematic approach to work health and safety which is relevant to the risks of the operational environment(s).
You will need an up-to-date understanding of;
The WHS Act and Regulations (2012), including;
The legislative framework
Duty holders under the WHS Act and the duties owed
Principles that apply to duties
The operations undertaken by the PCBU
The nature of hazards and risks arising from these operations, so that;
as a member of the Board, you can contribute to the provision and use of resources, systems and processes which effectively identify and mitigate hazards and risks to health and safety.
South Australian WHS legislation is based on the nationally harmonised model legislation, designed to increase consistency across jurisdictions. It also reflects modern working relationships, which are no longer confined to “Employer / Employee” relationships.
At this stage, all states and territories have implemented the model legislation within their own jurisdiction, except for Victoria and Western Australia.
As seen in the diagram above, the South Australian legislative framework consists of the WHS Act 2012; WHS Regulations 2012, Approved Codes of Practice and Australian Standards and regulator (i.e. SafeWork SA) guidance material.
Compliance with the WHS Act & Regulations is mandatory.
Codes of Practice are not mandatory so long as the organisation or duty holder implements strategies that achieve the same or better outcomes. Notwithstanding, under the WHS Act, approved codes of practice are admissible in court proceedings.
Australian Standards are not mandatory, unless they are specifically referenced in the Act or Regulations. Similarly, compliance with guidance material is not required.
However, it is prudent to consider Codes of Practice; Australian Standards and guidance material when developing safe systems of work.
The WHS Act defines four different “duty holders”, each of which have a prescribed “duty of care”. This duty must be carried out to a standard also defined in legislation. The duty holders are;
Persons Conducting a Business or Undertaking (PCBU)
Officers
Workers, and
Other Persons
The diagram above outlines the nature of activities undertaken by duty holders, as well as the standard to which the duties be performed.
The next few slides will elaborate on who the duty holders are and the duties owed.
The use of the term "Person Conducting a Business or Undertaking" (i.e. PCBU) is an acknowledgement that there is increasing diversity in models of work. The use of contractors; subcontractors, consultants, home based workers and other arrangements, is more common now than ever.
Whilst the employer / employee relationship is still prevalent, other stakeholders must now be mindful of their legal responsibilities in relation to work health and safety.
