Legal Role of the 'PCBU/Officer'
The person conducting a business or undertaking (PCBU - the new term that includes employers) has a primary duty of care to ensure workers and others are not exposed to a risk to their health and safety.
A primary duty of care is owed by a PCBU when it:
- directs or influences work carried out by a worker
- engages or causes to engage a worker to carry out work (including through subcontracting)
- has management or control of a workplace.
The PCBU must meet its obligations, so far as is reasonably practicable, to provide a safe and healthy workplace for workers or other persons by ensuring:
- safe systems of work
- a safe work environment
- accommodation for workers, if provided, is appropriate
- safe use of plant, structures and substances
- facilities for the welfare of workers are adequate
- notification and recording of workplace incidents
- adequate information, training, instruction and supervision is given
- compliance with the requirements under the work health and safety regulation
- effective systems are in place for monitoring the health of workers and workplace conditions.
PCBUs must also have meaningful and open consultation about work health and safety with its workers, health and safety representatives and health and safety committees.
PCBU must consult, cooperate and coordinate with other PCBUs with whom they share duties.
The Work Health and Safety Act stipulates that all businesses, or persons conducting business operations, are legally required to assign an 'Officer' or representative of the business to exercise due diligence in the management of WHS.
Officers, including company directors, are individuals who have high level obligations for work health and safety.
These obligations are important as health and safety commitment and leadership from the top levels of the business or undertaking is critical to health and safety outcomes.
It is an officers duty to exercise due diligence to ensure their business or undertaking fulfils its health and safety obligations under the Work Health and Safety Act.
The essential elements of due diligence for an officer are interrelated and cumulative in nature. These elements require an officer:
- to acquire and keep up to date knowledge of work health and safety matters
- to gain an understanding of the operations of the business and the hazards and risks involved
- to ensure appropriate resources and processes are provided to enable hazards to be identified and risks to be eliminated or minimised
- to ensure information regarding incidents, hazards and risks is received and the information is responded to in a timely way
- to ensure the PCBU has, and implements, processes for complying with any legal duty or obligation
- to ensure processes are verified, monitored and reviewed.
Though not exhaustive, these elements form part of a unified system for ensuring organisational compliance.