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WHS Duty Holders Overview

What are Duty Holders?​

Under NSW WHS legislation, duty holders are persons who have specific health and safety duties under the Work Health and Safety Act 2011 (NSW). Multiple duty holders can exist at a single workplace, and each must fulfill their obligations.

Primary Duty Holders​

Persons Conducting a Business or Undertaking (PCBU)​

The PCBU has the primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers and others affected by their work. This includes:

Key Responsibilities:

  • Providing and maintaining safe work environment
  • Providing safe plant and systems of work
  • Ensuring safe use, handling, and storage of substances
  • Providing adequate facilities
  • Providing information, training, instruction, and supervision
  • Monitoring health and workplace conditions
  • Consulting with workers

[!important] Primary Duty The primary duty of care is comprehensive and requires PCBUs to address all reasonably foreseeable risks to health and safety.

Officers​

Officers (company directors, partners, senior managers) have a duty to exercise due diligence to ensure the PCBU complies with WHS duties.

Due Diligence Requires:

  • Acquiring and keeping up-to-date knowledge of WHS matters
  • Understanding the nature of operations and associated hazards
  • Ensuring appropriate resources and processes for managing WHS risks
  • Ensuring appropriate information and reporting processes
  • Ensuring incidents are promptly reported and investigated
  • Implementing and monitoring WHS compliance processes

[!tip] Officer Accountability Officers can be held personally liable for failures in due diligence, even if they delegate WHS responsibilities.

Workers​

Workers must:

  • Take reasonable care for their own health and safety
  • Take reasonable care not to adversely affect others' health and safety
  • Comply with reasonable instructions
  • Cooperate with WHS policies and procedures

[!note] Worker Definition A "worker" includes employees, contractors, subcontractors, labour hire workers, apprentices, trainees, work experience students, and volunteers.

Other Persons at the Workplace​

Any person at a workplace (including visitors) must:

  • Take reasonable care for their own health and safety
  • Take reasonable care not to adversely affect others
  • Comply with reasonable instructions

Supply Chain Duty Holders​

The following have specific duties in the design, manufacture, and supply chain:

Designers​

Must ensure structures, plant, and substances are designed to be without risks to health and safety when used properly.

Manufacturers and Importers​

Must ensure plant, substances, and structures are manufactured/imported without risks to health and safety.

Suppliers​

Must ensure plant, substances, and structures are supplied without risks to health and safety when used properly.

Installers and Constructors​

Must ensure plant and structures are installed or constructed without risks to health and safety.

Multiple Duty Holders​

[!important] Overlapping Duties Multiple PCBUs may have duties for the same matter. Each must fulfill their duty to the extent they have control, and must consult, cooperate, and coordinate with other duty holders.

Example - Construction Site:

  • Principal contractor (PCBU)
  • Subcontractors (PCBUs)
  • Labour hire company (PCBU)
  • Plant hire company (PCBU)
  • Company officers
  • All workers

Each has specific WHS duties that may overlap. The consultation, cooperation, and coordination requirements ensure all duty holders work together effectively.

Reasonably Practicable​

All PCBU and officer duties are qualified by "so far as is reasonably practicable." This means:

Weighing the risk against:

  • Likelihood of hazard/risk occurring
  • Degree of harm that might result
  • What the person knows or ought reasonably to know about the hazard/risk
  • Availability and suitability of control measures
  • Cost of control measures (balanced against the risk)

[!warning] Cost Alone Not Sufficient Cost alone is never a reason to not implement controls. The greater the risk, the more that must be spent to control it.

Penalties for Non-Compliance​

WHS legislation provides significant penalties for breaches:

Category 1 (Reckless conduct):

  • Body corporate: Up to $3 million
  • Individual: Up to $600,000 and/or 5 years imprisonment

Category 2 (Failure to comply exposing to risk):

  • Body corporate: Up to $1.5 million
  • Individual: Up to $300,000

Category 3 (Other failures to comply):

  • Body corporate: Up to $500,000
  • Individual: Up to $100,000