An Overview of the Health and Safety at Work Act 2015

Many duties under HSWA apply ‘so far as is reasonably practicable’. It’s an important concept that involves doing what is reasonably able to be done to ensure people’s health and safety under the given circumstances.

Something is ‘practicable’ if it is possible or capable of being done. ‘Reasonably’ doesn’t mean doing everything humanly possible to manage a risk. It means doing what other businesses would reasonably do in the same situation. Different businesses have different risks – it all depends on the type of work you do.

What every business needs to understand is:

• What its work-related health and safety risks are – particularly those that have the potential to cause workers and others serious injury or illness
• The likelihood of those risks occurring
• The degree of harm that could result from those risks
• The options to eliminate the risks
• The options to minimise the risks (where they can’t be eliminated) the associated costs. Consideration of cost should only take precedence over safety when it is grossly disproportionate to the risk.

A PCBU is a ‘Person Conducting a Business or Undertaking’.

A PCBU may be a person if a sole trader or self-employed, however it usually refers to a business entity such as a company, or an undertaking such as a not-for-profit organisation.

The difference between a business and undertaking is:

• A business is an enterprise usually conducted with a view to making a profit
• An undertaking is usually not profitmaking or commercial in nature.

Examples of a business:

• A retailer or wholesaler
• An importer on-selling imported goods
• An owner-driver of a transport or courier business
• A franchisor or franchisee
• A self-employed person operating their own business
• Partners in a partnership.

Examples of an undertaking:

• A government department or agency
• A local council
• A school
• A charity like the SPCA or Barnardos.

The following are not PCBUs:

• Officers of a business or undertaking
• Workers
• Home occupiers, unless operating a business at home
• Volunteer associations.

A PCBU has the ‘primary duty of care’ – the primary responsibility for people’s health and safety at work. It must ensure, so far as is reasonably practicable, the health and safety of:

• Its workers
• Any other workers it influences or directs.

The PCBU must also look after other people who could be put at risk by its work, for example, customers, visitors, children and young people, or the general public.

If you are self-employed then you must also ensure, so far as is reasonably practicable, your own health and safety as well as the health and safety of others who could be put at risk by the work you do.

The primary duty of care is a broad, overarching duty. It includes, so far as is reasonably practicable, the PCBU having effective practices in place for:

• Providing and maintaining:
  • a work environment that is without risk to health and safety
  • safe plant and structures
  • safe systems of work
  • adequate facilities for the welfare of workers at work
• Safe use, handling and storage of plant, substances, and structures
  • the provision of information, training, instruction, or supervision that is necessary to protect people from risks to health and safety arising from the work carried out
  • that the health of workers and the conditions at the workplace are monitored to prevent illness or injury to workers arising from the work carried out.

A person is an officer if they have a position that allows them to exercise significant influence over the management of a business. Typically, an officer is the director, chief executive, or a general partner in a limited partnership. A business can have more than one officer.

A person who merely advises or makes recommendations to a person in a senior position in a business is not considered an officer.

The role of an officer is to exercise due diligence to ensure that the business meets its health and safety obligations under HSWA. The difference between a business’s primary duty of care and an officer’s duty is that officers do not have to ensure the health and safety of workers.

Due diligence includes taking reasonable steps to:

• Acquire and keep up-to-date knowledge of work health and safety matters
• Gain an understanding of the nature of the operations of the business and generally of the hazards and risks associated with those operations
• Ensure the business has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety
• Ensure the business has appropriate processes for receiving, considering, and responding in a timely way to information regarding incidents, hazards, and risks
• Ensure the business has and implements processes for complying with its duties under HSWA
• Verify the provision and use of resources and processes.

The extent of an officer’s due diligence duty will depend on the nature of the business’ operations and the nature of the officer’s role and responsibilities.

Ensuring businesses work together for everyone’s health and safety is a fundamental part of HSWA’s design.

When two or more businesses operate together, for example at the same location or in a contracting arrangement, they must work together to fulfil their primary duties of care.

Where work overlaps, businesses need to communicate, consult, cooperate, and coordinate activities to meet their health and safety responsibilities to workers and others, so far as is reasonably practicable.

A business cannot contract out its duties. However, reasonable arrangements can be made with the other businesses to fulfil its duty, taking into account the level of influence or control each has over the overlapping work.

Under HSWA, businesses have responsibilities for all workers and others affected by their work – not just those they directly employ or engage. Issues arise when:

• There is a lack of understanding about how the work of each business may add to the health and safety risks in the workplace as a whole or in a chain of work activities
• One business assumes the other business is taking care of a particular health or safety issue
• The business who manages the risk is not the one in the best position to do so
• Businesses do not know what other work is happening and when.

Consultation means businesses can avoid unnecessary duplication of effort and help prevent gaps in managing health and safety risks by establishing clear roles and responsibilities.

• Plan ahead, think about the stages of your work and who will be affected by it.
• Identify the risks to be managed and together agree how to control those risks and who is best placed to do so.
• Define roles, responsibilities, and actions, and explain these to workers and other
• Businesses so they know what to expect.
• Carry out reasonable and proportionate monitoring to ensure health and safety risk management is maintained.

In addition to their primary duty of care, there are now specific duties on businesses that are upstream in the supply chain (e.g. architects, engineers, manufacturers and importers).

Upstream businesses who design, manufacture, import, supply or install plant, substances or structures must, so far as is reasonably practicable, make sure that what they provide to workplaces doesn’t create health or safety risks.

Why? Because upstream businesses are in a strong position to eliminate or minimise risks to health and safety within the design and manufacturing process.

A worker is an individual who carries out work in any capacity for a business or undertaking, including:

• Employees, contractors, or sub-contractors
• Employees of contractors or sub-contractors
• Employees of labour hire companies
• Apprentices or trainees
• People doing work experience or work trial
• Putworkers (including home workers)
• Volunteer workers.

Others in a workplace include:

• Visitors to a workplace
• Customers
• Members of the public who come into contact with a business’ work activity
• Casual volunteers.

Workers and others in a workplace must:

• Take reasonable care of their own health and safety and reasonable care that others are not harmed by something they do or don’t do
• Follow any reasonable health and safety instructions given to them by the business, as far as they are reasonably able to.

And workers must:

• Cooperate with any reasonable business policy or procedure relating to the workplace’s health and safety that they have been told about.

Note: Workers have the right to stop work if they believe it is unhealthy or unsafe.

Under HSWA all businesses must have worker engagement and participation practices, regardless of size, level of risk or the type of work carried out. Under HSWA, a business must:

• Ensure workers’ views on matters that could affect their health and safety are asked for and taken into account (engagement)
• Have clear, effective and ongoing ways for workers to raise concerns or suggest improvements on a day-to-day basis (participation).

Workplaces have better health and safety outcomes when workers have a say about health and safety. Workers are the eyes and ears of the business and know where the health and safety pressure points are. Workers:

• Are directly affected by any risks created by the work a business does
• Are in the best position to know how a job is done and how it affects them
• Can provide practical solutions for improving work health and safety.

How a business decides to engage with workers and ensure their participation in health and safety will depend on the views and needs of workers, the size of the business, the nature of the risks, and how, when and where work is carried out.

The focus needs to be on effective practices rather than whether any particular system or processes are in place.

Worker representation is about having one or more people representing workers on health and safety matters. There are several well established ways to do this, including Health and Safety Representatives (HSRs), Health and Safety Committees (HSCs), and unions.

Worker representation has several health and safety benefits, including:

• Giving workers a clear, well-known way to raise issues and suggest improvements
• Providing a link between workers and management
• Helping where it’s not practical for the business to engage one-on-one with its entire workforce
• Providing a voice for workers who might not otherwise speak up.

A health and safety representative (HSR) is a person chosen by other workers to speak or act on their behalf about health and safety matters.

HSRs can benefit a business by:

• Working with the business to help to identify and manage risks
• Providing a different perspective given they are involved in day-to-day work activities
• Being knowledgeable about health and safety laws and everyone’s rights and responsibilities.

Any worker can ask for an HSR and business can choose to have an HSR.

Some businesses must arrange an election for an HSR if asked, including those with 20 or more workers or those in a high-risk sector or industry specified in the Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016.

Health and safety committees (HSCs) bring together HSRs, workers and representatives of the business to improve health and safety at work.

The main functions of an HSC are to:

• Make it easy for the business and workers to cooperate on ways to ensure workers’ health and safety
• Assist in developing standards, rules, and policies or procedures for work health and safety
• Make recommendations relating to work health and safety
• Carry out other tasks as agreed between the business and the HSC.

Five or more workers or an HSR can request that the business consider establishing an HSC.

Any business can choose to set up an HSC even if an HSR or workers have not asked for one.

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