About the WHS Act
The SA WHS Act came into operation January 1, 2013. The Work Health Safety Act (WHS Act) applies to all persons conducting a business or undertaking (PCBU) Compliance with provisions in the WHS Act is mandatory.
The WHS Act provides businesses with a framework to protect the health, safety and welfare of workers and others (e.g. the public). The object of the WHS Act is to:
- protect the health and safety of workers and others by eliminating or minimising risks arising from work or workplaces
- ensure effective representation, consultation and cooperation to resolve issues
- encourage unions and employer associations to take a role in WHS
- assist PCBUs and workers to achieve safe and healthy workplaces
- promote WHS information and training
- provide effective compliance and enforcement measures
- deliver continuous WHS improvement
- maintain and strengthen national harmonisation of WHS legislation.
The WHS Act lists mandatory duties and obligations for duty holders including PCBUs, officers and workers. The standard of duty required by each of these duty holders is outlined below:
- PCBU (section 19) …must ensure, so far as is reasonably practicable, the health and safety of workers is not put at risk…
- Officer (section 27) …an officer of the PCBU must exercise due diligence to ensure PCBU complies with its duty or obligation.
- Worker (section 28)…must take reasonable care for their own health and safety, and that his or her acts or omissions do not adversely affect the health and safety of other persons, and cooperate with policy/procedures.
For more information on duty holders refer to Part 2, sections 17-29 in the WHS Act.
Terms used in the WHS Act
Person conducting a business or undertaking (PCBU) means – a person conducting a business or undertaking alone or with others, whether or not for profit or gain. A PCBU can be a sole trader or self-employed person operating under a registered business (the PCBU), a municipal council, or statutory authority etc.
Officer – an officer within the meaning of section 9 of the Corporations Act 2001 (Cth). An officer is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the organisation’s activities (does not include an elected member of parliament or a municipal council).
An officer can also be an officer of the Crown or a public authority if they are a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown or public authority (e.g. CEO of a statutory authority or director of a government department). For more information on officers, please refer to Safe Work Australia’s interpretive guideline on officers available at www.safeworkaustralia.gov.au
Volunteer – a person who acts on a voluntary basis, regardless of whether they receive out-of-pocket expenses.
Volunteer association – a group of volunteers working together for one or more community purposes, whether registered or not, and that does not employ anyone to carry out work for the association.
Worker – any person who carries out work for a PCBU, including work as an employee, contractor, subcontractor, self-employed person, outworker, apprentice or trainee, work experience student, employee of a labour hire company placed with a ‘host employer’ and volunteers.
Work group – a group of workers represented by an HSR who in many cases share similar work conditions (e.g. all the electricians in a factory, all people on night shift, all people who work in the loading bay of a retail storage facility).
Workplace – any place where a worker goes or is likely to be while work is carried out for a business or undertaking (cemetery grounds, crematoriums, offices, workshops, vehicles, buildings, work platforms or mobile structures).
Reasonably practicable – what could reasonably be done at a particular time to ensure health and safety measures are in place.
In determining what is reasonably practicable, there is a requirement to weigh up all relevant matters including:
- the likelihood of a hazard or risk occurring (probability of a person being exposed to harm)
- the degree of harm that might result if the hazard or risk occurred (the potential seriousness of injury or harm)
- what the person concerned knows, or ought to reasonably know, about the hazard or risk and ways of eliminating or minimising it
- the availability of suitable ways to eliminate or minimise the hazard or risk
- the cost of eliminating or minimising the hazard or risk.
Costs may only be considered after assessing the extent of the risk and the available ways of eliminating or minimising the risk. Ordinarily cost will not be the key factor in determining what it is reasonably practicable for a duty holder to do unless it can be shown to be ‘grossly disproportionate’ to the risk.
Further information on what is reasonably practicable is available in Safe Work Australia’s interpretive guideline on ‘reasonably practicable’