The Work Health and Safety Act 2011 (NSW) ('WHS
Act') came into effect on 1 January 2012 and has brought with
it significant changes and even benefits for employers. The
following gives you a short summary of this long-awaited
WHO OR WHAT IS A: PERSONS CONDUCTING A BUSINESS OR UNDERTAKING
A PCBU is a new term in the WHS Act which replaces the
traditional employer. A PCBU now specifically refers entities,
whether they be sole trader, not-for–profits or
companies. It expands the scope of those with responsibility.
WHO ARE PCBUS RESPONSIBLE FOR?
In short – just about everyone. Legislators have also
reclassified traditional employees as workers. The change in
terminology means that a duty is owed not only to traditional
employees, but also more modern working relationships
Subcontractors and their employees;
Outworkers & employees of labour hire companies;
Trainees and work experience students; and
Customers and volunteers.
WHAT ARE MY DUTIES AS A PCBU?
The primary duty of care of a PCBU is to ensure that workers and
other persons are not exposed to health and safety risks arising
from work carried out by the PCBU, so far as reasonably
practicable. In determining what is reasonably
practicable in the circumstances, the following must be taken
The gravity of the harm;
The likelihood of the harm occurring;
What the person affected knows or should know about the
The availability and suitability of risk controls;
The costs involved and whether they are grossly
disproportionate to the risk.
The emphasis of the Act is clearly on employers to turn their
mind to carrying out risk assessments on all their:
Plant and equipment;
Substances and material used; and
Physical premises and surrounds.
To ensure that they are aware of their risks, have considered
ways of eliminating the many risks, and where that cannot
reasonably be achieved, minimise the risks.
As part of this process, PCBUs also have a duty to consult
workers on their business' health and safety practices and give
workers a reasonable opportunity to express their views and
concerns. One method for consultation is the introduction of the
Health & Safety Representatives ('HSRs'). We will
address the role of a HSR in more detail in future articles.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Although the above changes are significant, they should not be
problematic to most employers who have complied with the previous
legislation. It is recommended that employers establish a clear
understanding of who is owed a duty of care and to review their
existing procedures to ensure that they comply with the new
legislation. If not, the fines are very steep and can and often
will be applicable to owners, directors and senior management,
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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