The PCBU health and safety duty through the Primary Duty of Care and some interesting cases

Health and Safety Duty owed by the PCBU through the Primary Duty of Care

Since the introduction of the Work Health and Safety (WHS) Act in 2011, a significant amount of case law has emerged relating to the interpretation of the health and safety duty of care owed by a Person Conducting a Business or Undertaking (PCBU) to its workers. Safe Work Australia lists the primary duty of care as required in the Model WHS Legislation.

There is also information on the psychosocial risks and how to ensure that workers and other persons are not exposed to risks to their psychological or physical health and safety.

This health and safety duty requires Businesses to ensure, so far as is reasonably practicable, the health and safety of their workers while at work. This is not a new requirement as it was part of the legislation created out of the Robben’s report in England and subsequently passed to Australia to enact. As stated in the Australian Constitution the Federal Government cannot impose Health and safety legislation on the States and Territories.

Each state and Territory took a slightly different stance on the legislation that they approved and enacted. However, one requirement remained constant, the Primary Duty of Care.

With the harmonising of the legislation across Australia, with the exception of Victoria, a standard wording has been developed on the Primary Care duties. This is making it far easier to draw on case law in other states and Territories (within the confines of the law) and to approximate the courts response to a workplace incident. This blog post will draw on the latest case law to provide an update on the key developments in the interpretation of this health and safety duty.

The PCBU’s health and safety duty to workers and others

The PCBU’s duty to workers is a fundamental element of the WHS Act across Australia. The WHS Legislation defines this health and safety duty as the “Primary Duty of Care”, being a duty that is owed to workers and others. Importantly it is not dependent on any contractual relationship between the Business and the worker. The duty requires a Business ensure, so far as is reasonably practicable, the health and safety of workers while they are at work. The term ‘at work’ has also been tested to include places where the worker is/was or will likely to be performing work for and or at the direction of the Business.

The health and safety duty extends to all workers and is clarified in the WHS Legislation to include employees, contractors, subcontractors, and volunteers. This means that there must be systems in place to ensure the health and safety of all workers who perform work for them. These systems of work will not differ due to a person’s employment status. To comply with this health and safety duty, a Risk Management process must be followed to identify and assess any potential hazards in the workplace and take steps to firstly eliminate or control those hazards. The WHS Legislation specifies a stepped process following a hierarchy of control measures depending on their effectiveness.

This process may include implementing safety policies and procedures, providing information training instruction and supervision, and ensuring that plant (equipment and machinery) is maintained in a safe condition. Once the systems are in place a process of checking implementation through a series of targeted safety audits will monitor their effectiveness. These can be completed internally or by a Safety Consultant.

Recent case law developments in the health and safety duty

Since the introduction of the WHS Act, there have been several significant cases that have clarified and developed the court’s interpretation of the PCBU’s duty to workers. Each of these cases have highlighted the importance of a proactive and risk-based approach to workplace health and safety. With each emphasising the need for PCBUs to take a broad view of their duty and consult on many matters.

One of the key cases in this area is SafeWork NSW v WGA Pty Ltd [2018] NSWDC 223. In this case, the defendant, WGA Pty Ltd, was found guilty of breaching their duty of care to a worker. The suffered serious injuries when they fell through a skylight while carrying out roofing work for the defendant. The court found that the defendant had failed to apply the risk management principles laid out in the WHS Legislation. The defendant was found to not have adequately identified and assessed the risks associated with working on a fragile roof.

Additionally, the defendant had not provided appropriate safety equipment or training to the worker.

This case is one of many that highlighted the importance of identifying and assessing potential hazards in the workplace. The PCBU must take appropriate steps to eliminate or control those hazards that they know or ought to reasonably know about. The case also emphasises the need to provide adequate safety equipment (PPE) and training to workers.

Another notable case on this topic is WorkSafe Victoria v Envirowaste Services Pty Ltd [2019] VCC 1992. In this case, the defendant, Envirowaste Services Pty Ltd, was found guilty of breaching its duty of care to a worker who was crushed by a reversing truck while working at a waste transfer station. The court found that the defendant had failed to adequately manage the risks associated with truck movements at the site and had not provided appropriate training or supervision to the worker.

This case highlighted the importance of ensuring the risk management process is applied and that the risks associated with workplace activities are properly managed. There was also a need to ensure workers are provided with appropriate training and supervision. The Supervision is often overlooked in these instances where the Business trains the worker; provides them with the safety equipment, then leaves them to their own devices to complete the task. Supervision, provided by a competent person who is fully aware of the task risks and controls so that they can monitor the activity ensuring that workers continue to perform the task in the prescribed manner.

The Supervisor must always be ready to step in should a situation arises where the controls are no longer effective. Workers should also be as eager to stop work should there be an issue that was not part of the original plan for the task. This case also emphasised the need for PCBUs to take a broad view of their duty, and to consider all potential hazards and risks associated with a particular activity.

In the case of SafeWork NSW v Baker Hughes Australia Pty Ltd [2020] NSWDC 662, the District Court of New South Wales considered the duty of care owed by a PCBU to contractors. Remembering that Contractors are also considered workers of the company engaging them to perform a task.

However there limitations as to the extent of this duty of care understanding that the Contractor also owes a Duty of Care. This specific case involved a contractor who was fatally injured while working at a facility owned by the defendant (Baker Hughes).

The contractor was working alone and was not supervised by anyone from defendant was still owed a health and safety duty of care owed by the Business engaging them. There is specific mention in the WHS Legislation for providing a safe workplace for persons working alone or in isolation from immediate assistance. The court found that the defendant had failed to ensure the health and safety of the contractor as required in section 19 of the WHS Act.

The court held that the duty owed by a Business to a contractor is the same as the duty owed to an employee. The health and safety duty owed by the PCBU requires them to take reasonably practicable steps to ensure the safety of contractors engaged in its business activities.

Another important development in the interpretation of this health and safety duty, has been increasing the emphasis to actively manage and monitor risks in the workplace. The provision of a safe workplace or safe systems of work must not be a set and forget process, monitoring and reviews must be undertaken to ensure that the controls remain current and suitable. The duty of care requires a PCBU to not only identify hazards and assess risks associated with its business activities, but to then take reasonably practicable steps to eliminate or control those risks.

In the case of Access Solutions International Pty Ltd v SafeWork NSW [2021] NSWCA 68, the New South Wales Court of Appeal considered the health and safety duty of care owed by a PCBU to workers engaged in high-risk work activities. The case involved a worker who was installing a safety barrier at a workplace and fell. The court found that Access Solutions International, had failed to ensure the safety of the worker when they carry out work as required by section 19 of the WHS Act.

This can achieve this through developing safe systems of work in consultation with workers. The Health and Safety Representative should also be consulted where the decision may impact the health and safety of workers in their workgroup. There is also a requirement to provide a system of maintenance of plant and structures in the workplace and the facilities for the welfare of workers.

The court held that the duty of care required the defendant to implement processes to actively manage and monitor the risks associated with the high-risk work activity. In this instance the courts held that the PCBU had failed to do so by failing to implement adequate safety measures to prevent falls from heights.

These are some of the cases that may be seen as precedents in considering the language of the current WHS Legislation across Australia where a health and safety duty of care is owed. the Businesses must understand that the protection of workers safety is a fundamental element of the WHS Act across Australia. Then ensure, so far as is reasonably practicable, the health and safety of workers while they are at work. This includes Contractors and other persons who may be impacted by the work performed.

PCBU’s has a duty to maintain Plant, Structures, and Substances. In doing this they must not only focus on the initial setup and design of the work environment but ensure that there are processes for the ongoing maintenance of plant, structures, and substances. Some of these processes include having staff or specialist regularly inspect machinery and equipment. Then to draw plans of maintenance to ensure they remain safe working condition. Systems must also include ways to promptly address any issues that may arise. This is part of the primary duty of care.

Adequate facilities must be provided where workers work. These facilities also need careful planning and maintenance to ensure they remain relevant for the work being performed and the number and makeup of the workforce using them. Depending on the workplace requirements PCBU must provide facilities such as washrooms, lockers, and dining areas. All of these amenities assist the worker and assist in creating a safe and comfortable work environment for the workers.

The PCBU must exercise management and control of the work environment to ensure that workers remain safe. This is also part of the primary duty of care. As part of this process potential hazards bust be identified and actively managed to control them. This requires continual monitoring of work processes, scheduling and conducting safety audits. All of this must also involve consultation that involves the Health and Safety Representative (where elected) in decision-making processes.

Where workers have elected a health and safety representative, the Business must consult/confer with them when making any of these decisions that may impact the health and safety of workers. The HSR is a legislative link between workers and management, monitoring the how the PCBU monitors and reviews the safe working conditions and facilitating communication.

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