The WHS duty of care, and what “health” covers

Four kinds of duty holder

The model laws give duties to four kinds of people at a workplace, and one person can hold more than one: a self-employed person, for example, can be a PCBU and a worker at the same time.

Summarised from Safe Work Australia’s duties pages

Duty holder	Who they are	Their duty, in short
PCBU	A person conducting a business or undertaking, such as an employer. Safe Work Australia’s examples include a retailer, a franchisor and franchisee, a government department, a local council and a school.	The primary duty: to ensure, so far as is reasonably practicable, the health and safety of workers while they are at work, and of others who may be affected by the work, such as visitors.
Officer	Someone who makes, or helps make, major decisions affecting all or a large part of the business, or who could significantly affect its financial standing. In a small business, usually the owners or operators.	Due diligence to ensure the business meets its duties: knowing its hazards and risks, making sure it is resourced to manage them, and checking that reporting processes for incidents and hazards are in place and followed.
Worker	Anyone who carries out work for the business. The definition is wide: employees, but also contractors, apprentices, labour hire workers and volunteers, among others.	Reasonable care for their own psychological and physical health and safety, and not to adversely affect others; complying with reasonable instructions and cooperating with notified policies, such as one on appropriate behaviour aimed at preventing bullying and harassment.
Other person	Anyone else at the workplace, such as a customer or a visitor.	Reasonable care for their own health and safety and not to adversely affect others, and complying with reasonable instructions. Safe Work Australia’s example: a customer in a shop must not behave violently, or abuse or harass staff.

Officers and workers can be prosecuted for failing to meet their duties, and so can other people at a workplace. For an officer, Safe Work Australia adds that this can happen even where no incident occurred at the workplace.

What the primary duty lists

The model Act spells the primary duty out. A PCBU must ensure, so far as is reasonably practicable:

• a safe work environment, provided and maintained
• safe plant and structures, provided and maintained
• safe systems of work, provided and maintained
• the safe use, handling and storage of plant, structures and substances
• accessible and adequate facilities, such as washrooms, lockers and dining areas
• any instruction, training, information and supervision needed
• monitoring of workers’ health and of conditions at the workplace
• maintenance of any accommodation the business owns or manages, so that workers living there are safe

The word that carries this guide is “health”. The model Act defines it as both physical and psychological health, and Safe Work Australia adds: “As part of its primary duty a PCBU must manage the risks to a worker’s psychological health, so far as is reasonably practicable.” That is why the way work is designed and managed, and the way people at work treat each other, are health and safety matters too: the model Regulations name both among the sources of psychosocial hazards. The hazards themselves are set out in the first room: psychosocial hazards at work.

The safe work environment reaches past the office walls. Safe Work Australia lists remote or isolated work, including working from home, among the things it covers.

One building, several duty holders

Duties overlap wherever more than one business is involved in the same thing. Safe Work Australia’s own example is a business renting space in a building: the tenant and the property manager or building owner share the job of providing a safe physical workplace and facilities, and the tenant should check, for instance, that there are arrangements for maintaining the air-conditioning and the toilets.

Three rules govern a shared duty. Each duty holder keeps its own responsibility, and meets it to the extent it has the capacity to influence and control the matter. No one can contract out of a duty or transfer it: a contract term that tries to is invalid. And each must, so far as is reasonably practicable, consult, cooperate and coordinate with the others.

Reasonably practicable, in order

Many duties are qualified by the words “so far as is reasonably practicable”. Safe Work Australia describes it as what is, or was, reasonably able to be done at a particular time, taking into account:

1. how likely the hazard or risk is to occur
2. the degree of harm that might result
3. what is known about the hazard or risk, and about ways to eliminate or minimise it
4. whether ways to eliminate or minimise it are available and suitable
5. and only then, the cost of those ways, including whether the cost is grossly disproportionate to the risk

Its mental health guidance puts the order plainly: cost is relevant, but only after the other factors have been considered, and if one control is not reasonably practicable, other ways to control the risk need to be found.

Consultation is part of the duty

A PCBU must consult every worker who is directly affected by a health and safety matter, or likely to be. That means giving them a reasonable opportunity to express their views and contribute to decisions, taking those views into account, and telling them the outcome. Where workers have a health and safety representative, the consultation must involve that representative, and a worker may ask for one.

For psychological health the moment is concrete. Safe Work Australia gives the example of identifying a psychosocial hazard and deciding which control measures to use: workers likely to be affected must be consulted then. It also says regular consultation is better than consulting case by case, because it lets potential problems be found and fixed early. How this plays out for one hazard in particular is in workplace bullying, and for the wider question of mental health in mental health at work.